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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated and effective as of August 9, 1999 (the
"Effective Date"), by and between PRECISION RESPONSE CORPORATION, a corporation
organized and existing under the laws of the State of Florida (hereinafter
referred to as "Employer"), and XXXX X. X'XXXX (hereinafter referred to as
"Employee").
W I T N E S S E T H:
WHEREAS, Employer is a Florida corporation engaged in interactive
customer care, service and marketing through the integration of its
teleservicing, Internet database management and marketing and fulfillment
business;
WHEREAS, Employer desires to continue to employ Employee upon the terms
and conditions set forth below and Employee desires to continue his employment
upon such terms and conditions; and
WHEREAS, Employer and Employee desire to set forth in writing the terms
and conditions of their agreements and understandings with respect to Employee's
continued employment by Employer.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT
Employer hereby employs Employee, and Employee hereby accepts
employment by Employer, upon the terms and conditions set forth in this
Employment Agreement.
2. TERM
Subject to the provisions for earlier termination set forth in Section
9 hereof, this Employment Agreement shall commence on the Effective Date and
shall continue until 5:00 p.m. on August 8, 2002 (the "Initial Employment
Term"), with the Initial Employment Term to be automatically renewed and
extended for consecutive additional one year periods unless, at least sixty (60)
days prior to the expiration of the Initial Employment Term or any one year
renewal period thereof, either party hereto delivers to the other party hereto
written notice of such party's termination of this Employment Agreement at the
expiration of the Initial Employment Term or any one year renewal period thereof
(as the case may be). The Initial Employment Term together with any or all one
year renewal periods thereof are hereinafter collectively referred to as the
"Employment Term."
3. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
Employee represents and warrants to Employer that Employee is
free to accept employment with Employer as contemplated herein and has no
written or oral obligations or commitments of any
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kind or nature which would in any way interfere with Employee's acceptance of
employment pursuant to the terms hereof or the full performance of Employee's
obligations hereunder or the exercise of Employee's best efforts in Employee's
employment hereunder or which would otherwise pose any conflict of interest.
4. DUTIES AND EXTENT OF SERVICES
A. DUTIES. Employee's duties and responsibilities hereunder
shall be those reasonably assigned to Employee from time to time by Employer,
consistent with the following: Employee shall, unless and until otherwise
determined by Employer, serve as Employer's Executive Vice President-Finance and
Chief Financial Officer, and shall, subject to the direction of Employer's Chief
Executive Officer, have overall responsibility to supervise and conduct all
financial, financial management and accounting functions of Employer as well as
all other functions and activities customarily supervised or conducted by an
Executive Vice President-Finance and Chief Financial Officer of a
publicly-traded company. Employee shall report directly to Employer's Chief
Executive Officer. Employee agrees to devote Employee's full and exclusive time,
skill, attention and energy diligently and competently to perform the duties and
responsibilities properly assigned to Employee hereunder, or pursuant hereto.
B. RULES AND REGULATIONS. Employee agrees to abide by the
rules and regulations of Employer promulgated by Employer from time to time with
respect and applicable to Employer's similarly-situated employees generally,
which are all hereby incorporated by reference and made a part of this
Employment Agreement.
5. COMPENSATION
A. BASE COMPENSATION. Subject to the provisions of Section 9
of this Employment Agreement, Employer shall pay salary to Employee ("Salary")
based upon the rate of $400,000 per annum from the Effective Date through the
remainder of the Employment Term. Salary shall be payable in accordance with
Employer's normal payroll practices for its employees and shall be subject to
payroll deductions and tax withholdings in accordance with Employer's usual
practices and as required by law.
B. BONUS COMPENSATION. Employee shall receive an annual bonus
in an amount to be determined by the Compensation Committee of the Board of
Directors of Employer in its sole and absolute discretion (the "Bonus Amount").
Subject to the provisions regarding payment upon termination of employment set
forth in Section 9 hereof, each annual Bonus Amount shall be paid on or before
March 31 of each year of the Employment Term. The Bonus Amount payable on or
before each March 31 shall be based upon the operating results of Employer and
Employee's performance during the calendar year (or the portion thereof in which
Employee was
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employed hereunder) immediately preceding such March 31. Each Bonus Amount shall
be subject to payroll deductions and tax withholdings in accordance with
Employer's usual payroll practices and as required by law.
6. FRINGE BENEFITS AND EXPENSES
A. EMPLOYEE BENEFITS. Employee shall be entitled to such
benefits and fringe benefits (such as individual and family health, dental, life
and disability insurance) as are made available by Employer from time to time,
in Employer's sole discretion, to all other similarly-situated executive
employees generally.
B. EXPENSES. Employer shall reimburse Employee for Employee's
reasonable out-of-pocket costs and expenses incurred in connection with the
performance of Employee's duties and responsibilities hereunder, subject to
Employee's presentation of appropriate documentation and, if requested,
justification therefor, and provided that the types and amounts of expenses
incurred are consistent with, in Employer's judgment, Employer's policies and
practices.
C. AUTO. Employer shall provide to Employee an automobile
allowance of $850.00 per month during the Employment Term in order to defray
Employee's automobile expenses incurred in the performance of Employee's duties,
but shall not be obligated to provide Employee with an automobile.
7. VACATIONS
Employee shall be entitled to five (5) weeks vacation during
each full year of the Employment Term (prorated for any partial year), with full
compensation (provided, however, that Employee shall not be entitled to be
compensated for any unused vacation days upon termination of employment). The
periods during which Employee will be absent from work for vacation shall be at
the reasonable discretion of Employer.
8. FACILITIES
Employer shall provide and maintain (or cause to be provided
and maintained) such facilities, equipment, supplies and personnel as it
reasonably deems necessary for Employee's performance of Employee's duties and
responsibilities under this Employment Agreement.
9. TERMINATION OF EMPLOYMENT
A. TERMINATION EVENTS. Employee's employment under this
Employment Agreement may be terminated by Employer only as follows: with or
without Cause (as hereinafter defined), effective upon the delivery of written
notice to Employee; upon Employee's
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death; or upon Employee becoming Disabled (as hereinafter defined) and receiving
written notice of termination from Employer to that effect. Employee may
terminate Employee's employment under this Employment Agreement without being in
breach hereunder by giving written notification of (i) Employee's resignation to
Employer which shall specify a resignation date no earlier than thirty (30) days
following the date of delivery of such notice of resignation or (ii)
Constructive Termination (as hereinafter defined) of Employee's employment under
this Employment Agreement (subject to the provisions of Section 9.B. hereof
relating to Constructive Termination). Employee's employment under this
Employment Agreement shall be terminated upon expiration of the Employment Term
pursuant to Section 2 hereof.
B. DEFINITIONS OF CAUSE, DISABLED AND CONSTRUCTIVE
TERMINATION. For purposes of this Employment Agreement, "Cause" shall mean and
include: (i) commission of a felony, or commission of acts of fraud, dishonesty,
or the like; (ii) habitual drunkenness during business hours or at Employer's
premises; (iii) illicit use of drugs during business hours or at Employer's
premises; (iv) abandonment of employment duties; (v) negligence in the
performance of employment duties; (vi) an act or omission on the part of
Employee not directed by Employer which results in or contributes to Employer
being sanctioned or penalized by any governmental or quasi-governmental
authority or body, or any stock exchange or body regulating or governing
publicly-traded companies (including the NASD); (vii) insubordination; or (viii)
breach by Employee of this Employment Agreement which, if curable, is not cured
by Employee within ten (10) days following Employee's receipt of written notice
thereof. Employee shall be deemed "Disabled" for purposes of this Agreement (a)
if, in the reasonable judgment of Employer, Employee is unable, due to physical,
mental or emotional illness or injury, to perform substantially all of
Employee's duties and responsibilities for Employer for a continuous period of
ninety (90) days, or (b) if Employee is adjudicated as an incompetent or has a
guardian appointed to handle Employee's affairs. For purposes of this Employment
Agreement, "Constructive Termination" shall mean: (x) Employer has delegated to
another or others a material portion of Employee's duties or responsibilities
provided for in Section 4.A. hereof or Employee's authority related thereto (and
shall include, without limitation, loss of title or removal of Employee from the
office of Executive Vice President-Finance or Chief Financial Officer, even if
Employee's day-to-day duties are to remain substantially the same, or a change
as to whom Employee reports), other than for Cause, and Employer fails to
confirm in writing, and implement, the reinstatement of such material portion of
Employee's duties and responsibilities and/or offices to Employee within thirty
(30) days after receipt by each of the Chairman of the Board and Chief Executive
Officer of Employer of Employee's written notice of protest (as provided in the
next sentence), (y) Employer attempts, without Employee's prior written consent,
to relocate Employee's office outside of northern Miami-Dade County (i.e., not
any further south in Miami-Dade County
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than the location of Employer's executive offices as of the Effective Date) or
Broward County, Florida, or (z) the position of Chairman of the Board or Chief
Executive Officer of Employer becomes vacant for any reason and either (1) the
vacancy is filled by a person other than Xxxx X. Xxxxxx, Xxxxx Xxxxxxx, Employee
or another person not an employee of Employer immediately prior to becoming the
Chairman of the Board or Chief Executive Officer of Employer or (2) the vacancy
is not filled within sixty (60) days of the date of such vacancy. In the event
of Constructive Termination of Employee's employment under this Employment
Agreement, Employee may terminate Employee's employment, provided that he has
given written notice of protest to each of the Chairman of the Board and Chief
Executive Officer of Employer within thirty (30) days of the occurrence of the
event causing the Constructive Termination setting forth the manner in which the
Constructive Termination has occurred (and such Constructive Termination is not
timely corrected, as provided in the case of a Constructive Termination under
clause (x) of the preceding sentence). For purposes solely of Section 2(b) of
those certain Stock Option Agreements dated August 9, 1996 (as amended on
November 10, 1997) and November 10, 1997, by and between Employer and Employee,
Employee's employment shall be deemed terminated by Employer without Cause in
the event that Employee terminates his employment as a result of the occurrence
of a Constructive Termination to the extent and in the manner permitted under
this Employment Agreement.
C. EFFECT OF TERMINATION FOR CAUSE OR EMPLOYEE'S RESIGNATION.
In the event that Employee's employment under this Employment Agreement is
terminated by Employer with Cause, or because Employee resigns from or quits
Employee's employment (other than as a result of a Constructive Termination),
Employer shall pay to Employee, within thirty (30) days following the date of
such termination or resignation, subject to Employer's right to set off any
damages resulting from Employee's termination with Cause or, if applicable, a
resignation effected without giving the required notice, the Salary, if any,
accrued and unpaid through the date of termination, and shall pay and provide to
Employee the amounts and items payable and to be provided under Sections 6.A.,
B. and C. through the date of such termination; and Employee shall not be
entitled to any other compensation, remuneration or other sums provided for in
this Employment Agreement or to which Employee might otherwise be entitled
hereunder or at law or in equity, including, without limitation, any accrued or
unpaid Bonus Amount. If Employee gives a notice of resignation, Employer may
terminate Employee's employment prior to the 30th day following the notice of
resignation, by written notice to Employee to that effect, specifying the
termination date, in which event Employee shall continue to receive, as and when
it would have been paid, Salary and the items set forth in Sections 6.A and C.
through such 30th day.
D. COMPENSATION UPON DEATH OR DISABILITY. Upon the death of
Employee, or termination of employment because Employee is
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Disabled, Employer shall pay to Employee, Employee's legal guardian or the legal
representative of Employee's estate (or heir as designated by the legal
representative of Employee's estate at such time), (i) within thirty (30) days
following the date of Employee's death or termination, the Salary, if any,
accrued and unpaid through the date of termination, and shall pay and provide
the amounts and items payable and to be provided under Sections 6.A., B. and C.
through the date of termination, and (ii) at the time or times usually payable,
any unpaid Bonus Amount earned and accrued through the date of termination of
employment; and Employee (or such legal guardian, legal representative and
heirs) shall not be entitled to any other compensation, remuneration or other
sums provided for in this Employment Agreement or to which Employee might
otherwise be entitled hereunder or at law or in equity.
E. COMPENSATION UPON TERMINATION WITHOUT CAUSE OR CONSTRUCTIVE
TERMINATION. In the event that Employer (or its successor) terminates Employee's
employment under this Employment Agreement without Cause (other than in
connection with or in contemplation of a Change in Control (as hereinafter
defined) as provided in Subsection G. below) or Employee terminates his
employment as a result of the occurrence of a Constructive Termination to the
extent and in the manner permitted hereunder, Employee's sole and exclusive
compensation, remuneration and remedy hereunder or at law or in equity shall be
to receive from Employer, and Employer shall pay and/or provide to Employee, (i)
the amount of Salary and Bonus Amount, if any, accrued and unpaid through the
date of termination, and the amounts and items payable or to be provided under
Sections 6.A., B. and C. through the date of termination, payable within thirty
(30) days following the date of termination of employment, and (ii) a lump sum
payment in the amount of $600,000 to be paid within thirty (30) days following
the date of termination. Notwithstanding anything to the contrary contained in
this Subsection E., if termination of employment without Cause or as a result of
Constructive Termination occurs before a Change in Control and this Subsection
E. is followed by the parties, but within one hundred eighty (180) days
thereafter with respect to termination of employment without Cause or as a
result of Constructive Termination a Change in Control (as hereinafter defined)
occurs, then Subsection G. shall supersede this Subsection E. and the balance of
the unpaid amounts of the severance and other payments required under Subsection
G. shall be immediately (but in all events within thirty (30) days after such
Change in Control) paid by Employer (or its successor) to Employee.
F. KEY-MAN INSURANCE. In the event that Employer obtains a
key-man insurance policy (the "Policy") on the life of Employee, Employer shall
be the sole owner thereof and all proceeds payable in respect thereof shall be
the property solely of Employer. In the event that Employee's employment
terminates for any reason other than Employee's death, Employee may request that
the Policy be assigned to Employee by giving written notice to Employer to that
effect. Subject to obtaining any requisite
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consent from the insurer, Employer shall, if Employee has so requested, assign
the Policy to Employee subject to Employee's reimbursement to Employer of any
premiums paid by Employer which relate to any period following the date of
termination of Employee's employment, and the cash value, if any, of the Policy.
In the event that Employer desires to obtain any such Policy, Employee shall
fully cooperate in Employer's efforts, including submitting to medical exams and
tests and executing and delivering applications and information statements.
G. COMPENSATION UPON A CHANGE IN CONTROL. Notwithstanding the
provisions of Subsection E. above, in the event that (i) Employer (or its
successor) terminates Employee's employment under this Employment Agreement
without Cause within one hundred eighty (180) days before or one (1) year after
a Change in Control, (ii) Employee terminates his employment to the extent and
in the manner permitted under this Employment Agreement as a result of the
occurrence of a Constructive Termination within one hundred eighty (180) days
before or one (1) year after a Change in Control or (iii) Employer (or its
successor) (but not Employee) delivers to Employee a written notice of
termination pursuant to Section 2 terminating this Employment Agreement at the
expiration of the Employment Term and such expiration occurs within one hundred
twenty (120) days before or one (1) year after a Change in Control, Employee's
sole and exclusive compensation, remuneration and remedy hereunder or at law or
in equity shall be to receive from Employer (or its successor), and Employer (or
its successor) shall pay to Employee within thirty (30) days following the date
of termination of employment or expiration (as the case may be), (a) the amount
of Salary and Bonus Amount, if any, accrued and unpaid through the date of
termination of employment or expiration, and the amounts and items payable or to
be provided under Sections 6.A., B. and C. through the date of termination of
employment or expiration, and (b) a lump sum severance payment in cash equal to
2.99 times an amount equal to the average of the sum of the annual Salary
(annualized for any partial calendar year) and Bonus Amount (or the aggregate
annual amount of the quarterly bonus amounts (annualized for any partial
calendar year)) paid to Employee each calendar year during the last five (5)
calendar years of his employment by Employer (or such lesser number of calendar
years in which Employee was employed by Employer) preceding the calendar year in
which the Change in Control occurred. For purposes of this Subsection G., (1) a
"Change in Control" means that (x) neither Xxxx Xxxxxx (for these purposes,
counting all common stock directly or indirectly beneficially owned by Xxxx
Xxxxxx'x Affiliates) nor Xxxxx Xxxxxxx (for these purposes, counting all common
stock directly or indirectly beneficially owned by Xxxxx Xxxxxxx'x Affiliates)
beneficially owns at least 10% of the issued and outstanding common stock of
Employer (or its successor); (y) neither Xxxx Xxxxxx (for these purposes,
counting all common stock directly or indirectly beneficially owned by Xxxx
Xxxxxx'x Affiliates) nor Xxxxx Xxxxxxx (for these purposes, counting all common
stock directly or indirectly beneficially owned by Xxxxx Xxxxxxx'x Affiliates)
is the
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stockholder of Employer (or its successor) beneficially owning the highest
number of issued and outstanding shares of common stock of Employer (or its
successor); or (z) Xxxx Xxxxxx and/or Xxxxx Xxxxxxx do not occupy the positions
of Chairman of the Board and Chief Executive Officer of Employer (or its
successor); (2) "Affiliate" means, with respect to Xxxx Xxxxxx or Xxxxx Xxxxxxx,
an immediate family member of his, a trust principally for his benefit and/or
the benefit of his family members and/or lineal descendants, or a family limited
partnership or any other entity the direct or indirect beneficial or pecuniary
owners of which are principally him, his immediate family members and/or trusts
or other entities principally for the benefit of him, his family members and/or
lineal descendants; and (3) "Immediate family members" mean, with respect to
Xxxx Xxxxxx or Xxxxx Xxxxxxx, his spouse, children, parents, siblings or other
lineal descendants. For purposes of clause (a) of this Subsection G., any Bonus
Amount for a partial year of employment shall be prorated through the date of
such termination or expiration based upon the prior year's Bonus Amount (or
aggregate amount of the quarterly bonus amounts, if any, for such prior year)
and for purposes of clause (a) or clause (b) of this Subsection G., if Employee
has not previously earned a Bonus Amount (or any quarterly bonus amount) during
the last five (5) years of his employment by Employer, the Bonus Amount shall be
deemed to be $200,000. Nothing in this Subsection G. shall be deemed to limit
Employee's rights as provided under Subsection E. with respect to a termination
without Cause or Constructive Termination occurring more than 180 days before or
more than one (1) year after a Change in Control.
10. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
A. CONFIDENTIAL INFORMATION. Employee acknowledges that
Employee has been informed by Employer of Employer's policy to maintain as
secret and confidential all information and materials relating to (i) the
financial condition, operations, business and interests of Employer, (ii) the
systems, know-how, records, products, services, cost information, inventions,
computer and Internet software, marketing and sales techniques and/or programs,
methods, methodologies, manuals, lists and other trade secrets from time to time
acquired, sold, developed, maintained and/or used by Employer, and (iii) the
nature and terms of Employer's relationships with its clients, suppliers,
lenders, underwriters, vendors, consultants, independent contractors, attorneys,
accountants and employees (all such information and materials being hereinafter
collectively referred to as "Confidential Information"). Employee further
acknowledges that such Confidential Information is of great value to Employer
and has been developed by Employer as a result of substantial effort and
expense. Therefore, Employee understands that it is reasonably necessary to
protect Employer's good will, trade secrets and legitimate business interests
that Employee agree and, accordingly, Employee does hereby agree, that Employee
will not directly or indirectly (except where authorized by the Board of
Directors,
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Chairman of the Board, Chief Executive Officer or President of Employer for the
benefit of Employer and/or as required in the course of employment) at any time
hereafter divulge or disclose for any purpose to any persons, firms,
corporations or other entities (hereinafter referred to collectively as "Third
Parties"), or use or cause or authorize any Third Parties to use, any such
Confidential Information, except as otherwise required by law.
B. EMPLOYER'S MATERIALS. In accordance with the foregoing,
Employee furthermore agrees that (i) Employee will at no time retain or remove
from the premises of Employer any products, prototypes, drawings, notebooks,
computer or Internet software or discs, tapes or similar containers of software,
manuals, data, books, records, materials or documents of any kind or description
for any purpose unconnected with the strict performance of Employee's duties
with Employer and (ii) upon the cessation or termination of Employee's
employment with Employer for any reason, Employee shall forthwith deliver or
cause to be delivered to Employer any and all drawings, notebooks, software
programs or discs, tapes or similar containers of software, manuals, data,
books, records, materials and other documents and materials in Employee's
possession or under Employee's control relating to any Confidential Information
or any other material or thing which is the property of Employer.
11. COVENANT-NOT-TO-COMPETE
In view of (a) the Confidential Information known to and to be
obtained by or disclosed to Employee, and (b) the consideration paid and payable
to Employee under this Employment Agreement, and as a material inducement to
Employer to enter into this Employment Agreement, Employee covenants and agrees
that, for as long as Employee is employed by Employer and for a period of two
(2) years after the date Employee ceases for any reason to be employed by
Employer, Employee shall not, directly or indirectly, (A) sell any products or
services sold or offered by Employer to any person or entity for or to whom
Employer is performing services or selling products or for or to whom Employer
has performed services or sold products at any time during the one-year period
ending on Employee's termination of employment, (B) solicit the services of, or
hire, directly or indirectly, whether on Employee's own behalf or on behalf of
others, any managerial, finance or executive employee, account manager or
marketing or sales personnel or information services or database management
personnel (including, without limitation, programmers or network or other
information services or Internet operation employees) of Employer or who was
employed by Employer at any time during the one-year period ending on the date
of termination of Employee's employment, or (C) in any capacity engage in any
venture, enterprise, activity or business, passively or actively, as an owner,
consultant, adviser, participant, officer, director, employee or agent,
competitive with the business of Employer in the areas of teleservicing,
Internet, database management and marketing or
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fulfillment services anywhere within the continental United States (other than
passive ownership of less than 1% of the outstanding equity of a publicly-traded
competitor). Employee acknowledges that the business of Employer is national in
scope, that one can effectively compete with such business from anywhere in the
continental United States, and that, therefore, such geographical area of
restriction is reasonable in the circumstances to protect Employer's trade
secrets and other legitimate business interests.
12. EMPLOYER'S REMEDIES FOR BREACH OF SECTIONS 10 AND 11
Employee covenants and agrees that if Employee shall violate
or breach any of Employee's covenants or agreements provided for in Section 10
or 11 hereof, Employer shall be entitled to an accounting and repayment of all
profits, compensation, commissions, remunerations and benefits which Employee
directly or indirectly has realized and realizes as a result of, growing out of
or in connection with any such violation or breach. In addition, in the event of
a breach or violation or threatened or imminent breach or violation of any
provisions of Section 10 or 11 hereof, Employer shall be entitled to a temporary
and permanent injunction or any other appropriate decree of specific performance
or equitable relief (without being required to post bond or other security) from
a court of competent jurisdiction in order to prevent, prohibit or restrain any
such breach or violation or threatened or imminent breach or violation by
Employee, by Employee's partners, agents, representatives, servants, employers
or employees and/or by any Third Parties. Employer shall be entitled to such
injunctive or other equitable relief in addition to any ascertainable damages
which are suffered, together with reasonable attorneys' and paralegals' fees and
costs and other costs incurred in connection with any such litigation, both
before and at trial and at all tribunal levels. It is understood that resort by
Employer to such injunctive or other equitable relief shall not be deemed to
waive or to limit in any respect any other rights or remedies which Employer may
have with respect to such breach or violation.
13. REASONABLENESS OF RESTRICTIONS
A. REASONABLENESS. Employee acknowledges that any breach or
violation of Section 10 or 11 hereof will cause irreparable injury and damage
and incalculable harm to Employer and that it would be very difficult or
impossible to measure all of the damages resulting from any such breach or
violation. Employee further acknowledges that Employee has carefully read and
considered the provisions of Sections 10, 11 and 12 hereof and, having done so,
agrees that the restrictions and remedies set forth in such Sections (including,
but not limited to, the time period, geographical and types of restrictions
imposed) are fair and reasonable and are reasonably required for the protection
of the business, trade secrets, interests and good will of Employer.
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B. SEVERABILITY. Employee understands and intends that each
provision and restriction agreed to by Employee in Sections 10, 11 and 12 hereof
shall be construed as separate and divisible from every other provision and
restriction. In the event that any one of the provisions of, or restrictions in,
Sections 10, 11 and/or 12 hereof shall be held to be invalid or unenforceable,
and is not reformed by a court of competent jurisdiction (which a court, in lieu
of striking a provision entirely, is urged by the parties to do), the remaining
provisions thereof and restrictions therein shall nevertheless continue to be
valid and enforceable as though the invalid or unenforceable provisions or
restrictions had not been included. In the event that any such provision
relating to time period, geographical and/or type of restriction shall be
declared by a court of competent jurisdiction to exceed the maximum or
permissible time period, geographical or type of restriction such court deems
reasonable and enforceable, said time period, geographical and/or type of
restriction shall be deemed to become and shall thereafter be the maximum time
period or geographical area and/or type of restriction which such court deems
reasonable and enforceable.
C. SURVIVABILITY. The restrictions, acknowledgments, covenants
and agreements of Employee set forth in Sections 10, 11, 12 and 13 of this
Employment Agreement shall survive any termination of this Employment Agreement
or of Employee's employment (for any reason, including expiration of the
Employment Term).
14. LAW APPLICABLE
This Employment Agreement shall be governed by and construed
pursuant to the laws of the State of Florida.
15. NOTICES
Any notices required or permitted to be given pursuant to this
Employment Agreement shall be sufficient if in writing, and delivered
personally, by commercial courier service or sent by certified mail, return
receipt requested, and sent to Employer's executive offices, to the attention of
the President, if to Employer, and to Employee's then current residence, if to
Employee.
16. SUCCESSION
This Employment Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives,
heirs, assignees and/or successors in interest of any kind whatever; PROVIDED,
HOWEVER, that Employee acknowledges and agrees that Employee cannot assign or
delegate any of Employee's rights, duties, responsibilities or obligations
hereunder to any other person or entity. Employer shall have the right to assign
its rights and delegate its duties under this Employment Agreement, provided
that, in the event of any such
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assignment, Employer shall remain liable for all of its obligations
hereunder.
17. ENTIRE AGREEMENT
This Employment Agreement constitutes the entire final
agreement between the parties with respect to, and supersedes any and all prior
and contemporaneous agreements between the parties hereto both oral and written
(including, without limitation, that certain Employment Agreement dated as of
August 9, 1996, by and between Employer and Employee, as previously amended by
that certain Amendment to Employment Agreement dated as of November 10, 1997)
concerning, the subject matter hereof and may not be amended, modified or
terminated except by a writing signed by the parties hereto.
18. SEVERABILITY
If any provision of this Employment Agreement shall be held to
be invalid or unenforceable, and is not reformed by a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision and shall not in any way affect or render invalid or unenforceable any
other provision of this Employment Agreement, and this Employment Agreement
shall be carried out as if such invalid or unenforceable provision were not
herein contained.
19. NO WAIVER
A waiver of any breach or violation of any term, provision or
covenant herein contained shall not be deemed a continuing waiver or a waiver of
any future or past breach or violation. No oral waiver shall be binding.
20. ATTORNEYS' FEES
In the event that either of the parties to this Employment
Agreement institutes suit against the other party to this Employment Agreement
to enforce or declare any of their respective rights hereunder, the prevailing
party in such action shall be entitled to recover from the other party all
reasonable costs thereof, including reasonable attorneys' and paralegals' fees
and costs incurred before and at trial and at all tribunal levels, and whether
or not suit or any other proceeding is instituted.
21. COUNTERPARTS
This Employment Agreement may be executed in counterparts,
each of which shall be an original, but both of which together shall constitute
one and the same instrument.
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22. INDEPENDENT COUNSEL
EMPLOYER STRONGLY RECOMMENDS TO EMPLOYEE THAT EMPLOYEE RETAIN
INDEPENDENT LEGAL COUNSEL TO ADVISE EMPLOYEE WITH RESPECT TO THIS EMPLOYMENT
AGREEMENT BEFORE EMPLOYEE SIGNS IT.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on
the day and year first above written.
EMPLOYER:
PRECISION RESPONSE CORPORATION, a
Florida corporation
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx,
Chief Executive Officer
EMPLOYEE:
/s/ Xxxx X. X'Xxxx
-----------------------------------
XXXX X. X'XXXX
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