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Exhibit 10.35
AMENDMENT TO EMPLOYMENT AGREEMENT
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This Amendment to Employment Agreement (this "Amendment") dated as of
October 1, 1997, 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 XXXXXXX X. XXXXX, XX. (hereinafter referred to
as "Employee").
WITNESSETH
WHEREAS, Employer currently employs Employee pursuant to that certain
Employment Agreement dated as of February 19, 1997 by and between Employer and
Employee (the "Employment Agreement"); and
WHEREAS, Employer and Employee desire to amend certain of the
provisions of the Employment Agreement as set forth herein.
NOW THEREFORE, the parties agree that the Employment Agreement shall be
amended as follows:
1. A new sentence shall be added at the end of Section 2 as follows:
"This Employment Agreement shall automatically renew for
successive one year terms (each a "Renewal Term") unless
Employer or Employee shall notify the other in writing of its
or his decision not to renew this Employment Agreement at
least 60 days prior to the expiration of the Employment Term
or any Renewal Term."
2. The last sentence of Section 3 of the Employment Agreement shall be
deleted in its entirety. The parties hereby acknowledge that the Employee's
duties and services pursuant to Section 4 of the Employment Agreement will be
performed on a full time basis.
3. Subsection 5.A. of the Employment Agreement shall be amended by
changing the Salary (as defined therein) from $150,000 to $275,000. The change
in the amount of Salary shall be effective as of May 1, 1997 and Employer shall
pay the higher amount of Salary to Employee retroactive to such date.
4. A new subsection 5.C. shall be added as follows:
"C. Employee shall further receive an additional quarterly bonus for
each calendar quarter during the term hereof (the "Additional
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Quarterly Bonus Amount"), which shall be based upon the amount by
which Employer's actual quarterly revenues equal or exceed the
consensus quarterly revenues forecast of those securities analysts
who follow the Employer as such consensus forecast is determined and
published by First Call as of the beginning of the applicable year
without giving effect to any upward or downward adjustments thereto
during such year (the "First Call Forecast"), as follows: if the
Employer's actual revenues for any calendar quarter are (i) at least
100% but less than 105% of the First Call Forecast, then the
Additional Quarterly Bonus Amount shall be $37,500, (ii) at least
105% but less than 110% of the First Call Forecast, then the
Additional Quarterly Bonus Amount shall be $43,750, (iii) at least
110% but less than 120% of the First Call Forecast, then the
Additional Quarterly Bonus Amount shall be $50,000, (iv) at least
120% but less than 125% of the First Call Forecast, then the
Additional Quarterly Bonus Amount shall be $56,250 and (v) 125% or
more of the First Call Forecast, then the Additional Quarterly Bonus
Amount shall be the amount set forth in the foregoing item (iv) plus
an amount (if any) determined by the Employer in its sole
discretion. The Additional Quarterly Bonus Amount, if any, shall be
paid during the term hereof within 45 days after the end of each
calendar quarter ending on March 31, June 30 and September 30 and
within 90 days after the calendar quarter ending on December 31,
with each such Additional Quarterly Bonus Amount to be determined
based upon the actual quarterly revenues as compared to the First
Call Forecast for such quarter. With respect to the first three
quarters of 1997, any Additional Quarterly Bonus Amount due
hereunder for such three quarters shall be paid within 45 days after
September 30, 1997. The Additional Quarterly Bonus Amount shall be
subject to payroll deductions and tax withholdings in accordance
with Employer's usual payroll practices and as required by law."
5. A new subsection 9.F. shall be added as follows:
"F. COMPENSATION UPON TERMINATION WITHOUT CAUSE AFTER A CHANGE IN
CONTROL. Notwithstanding anything in Subsection E. of this Section 9
to the contrary, in the event that Employer terminates Employee's
employment under this Employment Agreement without Cause within one
hundred eighty (180) days after a Change of Control (as defined
hereinafter), Employee's sole and exclusive compensation and remedy
hereunder shall be to receive from Employer, and Employer shall pay
and/or provide, (i) the amount of Salary and Additional Quarterly
Bonus Amount, if any, accrued and
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unpaid through the date of termination, and the amounts and items
payable or to be provided under Section 6 through the date of
termination, payable within thirty (30) days following termination
of employment, (ii) the Salary that Employee would have received
during the one year period following the date of termination of
Employee's employment, as and when it would have been payable if
Employee had remained an employee of Employer for such additional
one year period and (iii) an amount equal to the aggregate of the
Additional Quarterly Bonus Amount, if any, earned by Employee over
the four calendar quarters immediately prior to the date of
termination of Employee's employment, payable in four equal,
consecutive quarterly installments commencing three (3) months from
the date of termination. For purposes of this Subsection F., a
"Change in Control" means that (1) 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 the Company or its successor, (2) 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
stockholder beneficially owning the highest number of issued and
outstanding shares of common stock of the Company or its successor,
or (3) neither Xxxx Xxxxxx nor Xxxxx Xxxxxxx occupies the position
of Chairman of the Board, Chief Executive Officer or President of
the Company. "Affiliate" means, for these purposes, 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 principally for the benefit of him, his family members
and/or lineal descendants. "Immediate family members" mean for these
purposes, with respect to Xxxx Xxxxxx or Xxxxx Xxxxxxx, his spouse,
children, parents, siblings or other lineal descendants."
6. Employer acknowledges that Employer has, on October 1, 1997, granted
to Employee stock options to acquire an additional 165,000 shares of Employer's
common stock pursuant to the Plan and the Stock Option Agreement attached as
Exhibit "A" to this Amendment:
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7. The parties acknowledge that the stock options granted to Employee
pursuant to those certain Stock Option Agreements dated as of July 26, 1996,
January 2, 1997 and February 18, 1997, have been repriced on October 1, 1997 and
otherwise modified as provided in the Amendments to Stock Option Agreement which
are attached hereto as Exhibits "B," B-1" and "B-2," respectively.
8. Except as otherwise specifically modified by this Amendment, all
terms, conditions and provisions of the Employment Agreement shall remain
effective and shall continue to operate in full force throughout the entire term
of the Employment Agreement, as amended hereby.
9. This Amendment shall be governed by and construed pursuant to the
laws of the State of Florida.
10. This Amendment may be executed in counterparts, each of which shall
be an original, but both of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the day and year first above written.
EMPLOYER:
PRECISION RESPONSE CORPORATION,
a Florida corporation
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: President
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
XXXXXXX X. XXXXX, XX.
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Exhibit "A"
PRECISION RESPONSE CORPORATION
STOCK OPTION AGREEMENT
Agreement dated as of the 1st day of October, 1997 (the "Date of
Grant") between Precision Response Corporation, a Florida corporation (and,
collectively with its subsidiaries, if any, the "Company") with its principal
office at 0000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000, and Xxxxxxx X. Xxxxx,
Xx., at the address set forth beneath such person's signature on the signature
page of this Agreement ("Optionee").
1. GRANT OF OPTIONS
The Company grants to Optionee, on the terms and conditions
set forth below, options (the "Options") to purchase up to 165,000 shares
(individually a "Share" and collectively the "Shares") of Precision Response
Corporation common stock (the "Common Stock"), par value $.01 per share, for a
price of $7.41 per Share (the "Option Price"), subject to adjustment as provided
in Paragraph 3 below. Subject to the limitation set forth in the Precision
Response Corporation Amended and Restated 1996 Incentive Stock Plan (the
"Plan"), a copy of which is attached hereto and incorporated herein by
reference, that the aggregate Fair Market Value (as defined in the Plan and as
determined as of the time the option is granted) of the shares of Common Stock
with respect to which Incentive Stock Options (as defined in and pursuant to the
Plan) are exercisable for the first time by a participant during any calendar
year (under all option plans of the Company) shall not exceed $100,000, the
Options shall be designated as Incentive Stock Options to the maximum extent
permitted by law and under the Plan. To the extent that the number of Options
which vest in any calendar year pursuant to the vesting schedule set forth below
exceeds the number which may properly be designated as Incentive Stock Options
pursuant to applicable law or under the Plan, such excess number of Options
shall, pursuant to the provisions of Section 6(e) of the Plan, be designated as
Nonqualified Stock Options (as defined in and pursuant to the Plan).
2. TERMS AND CONDITIONS OF OPTIONS
(a) OPTION PRICE
Subject to paragraph 3 hereof, the Option Price shall
be not less than the Fair Market Value per share of Common Stock on the Date of
Grant, but in no event less than the par value per Share.
(b) VESTING OF OPTIONS
Subject to such further limitations as are provided
for herein, the Options shall vest, if at all (and be exercisable once vested)
in the following amounts:
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AT OR YEAR FROM PERCENTAGE OF
DATE OF GRANT OPTIONS VESTED (%)
--------------- ------------------
At Date of Grant 50%
One (1) year from Date of Grant 75%
Two (2) years from Date of Grant 100%
Notwithstanding the vesting schedule set forth above, the Optionee
shall become immediately 100% vested in all outstanding Options and may
immediately exercise such Options subject to the time frames set forth in
subparagraph (e) below, upon a Change in Control (as defined in that certain
Amendment to Employment Agreement dated as of the date hereof between the
Company and the Optionee). Optionee shall not become vested in any Options
subsequent to the termination of his employment regardless of any exercise
period provided in subparagraph (e) below.
(c) TERM OF OPTIONS
The Options may be exercised by the Optionee in whole
or in part from time to time, but only during the period beginning on the date
of this Agreement and ending September 30, 2004, subject in all cases, however,
to subparagraphs (b) and (e) of this paragraph 2, paragraph 3 and the other
provisions of this Agreement and the Plan. In no event shall any of the Options
granted under this Agreement be exercisable after the expiration of 10 years
from the Date of Grant of such Options.
(d) NON-TRANSFERABILITY OF OPTIONS
Options shall not be transferable by Optionee other
than by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined by the Internal Revenue Code of
1986, as amended (the "Code"), or Title I of the Employment Retirement Income
Security Act, or the rules thereunder, and, except with respect to a qualified
domestic relations order as aforesaid, may be exercised during Optionee's
lifetime only by Optionee. If any Options are exercised after Optionee's death,
the Company may require evidence reasonably satisfactory to it of the
appointment and qualification of Optionee's personal representatives and their
authority and of the right of any heir or distributee to exercise such Options.
(e) TERMINATION OF EMPLOYMENT
If Optionee's employment with the Company terminates
the unexercised portion of any of the Options granted under this Agreement shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
(1) The expiration of seven (7) years from the Date
of Grant;
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(2) The expiration of three months from the date of
termination of the Optionee's employment by the Company (other than a
termination described in subparagraph (3), (4) or (5) below); PROVIDED, that, if
the Optionee shall die during such three-month period, the time of termination
of the unexpired portion of any such Option shall be determined under the
provision of subparagraph (4) below;
(3) The expiration of one year from the date of
termination of the employment of an Optionee due to permanent and total
disability (other than a termination described in subparagraph (5) below);
(4) The expiration of eighteen (18) months following
the issuance of letters testamentary or letters of administration to the
personal representative, executor or administrator of a deceased Optionee, if
the Optionee's death occurs either during his employment by the Company or
during the three-month period following the date of termination of such
employment (other than a termination described in subparagraph (5) below), but
in no event later than two years after the Optionee's death;
(5) The date of termination of the Optionee's
employment by the Company if such termination constitutes or is attributable to
a breach by the Optionee of an employment agreement with the Company, or its
parent, if any, or if the Optionee has been discharged for cause. The
Compensation Committee (the "Committee"), as provided in the Plan, shall have
the right to determine whether the Optionee has been discharged for cause and
the date of such discharge, and such determination of the Committee shall be
final and conclusive.
Neither this Agreement nor any Option granted hereunder shall confer on
Optionee any right to continue in the Company's employ, or limit in any respect
the Company's right (in the absence of a specific written agreement to the
contrary) to terminate Optionee's employment at any time with or without cause.
(f) EXERCISE OF OPTIONS
Subject to the limitations set forth herein and the
provisions hereof, the Options may be exercised only by written notice to the
Company, at its principal business office or such other office as the Committee
may from time to time direct, which shall contain provisions consistent with the
provisions of the Plan as the Committee may from time to time prescribe and
shall specify the number of optioned Shares being purchased. Not less than one
hundred (100) shares may be purchased at any one time upon exercise of the
Options unless the number purchased is the total number then purchasable under
this Agreement. Subsequent to the grant of any Options which are not immediately
exercisable in full, the Committee, at any time before complete termination of
such Options, may accelerate the time or times at which such Options may be
exercised in whole or in part. Any notice of exercise of Options shall be
accompanied by payment of the full purchase price for the Shares being
purchased: (i) by check payable to the Company; or (ii) with the prior consent
of the Committee, by tendering previously acquired shares of Common Stock having
a fair market value (determined as of the date such Options are exercised
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and in the same manner as the Fair Market Value of the Option Price is
determined under the Plan) equal to all of the purchase price; or (iii) by any
combination of (i) and (ii). The Company shall have no obligation to deliver the
Shares being purchased pursuant to the exercise of any Options, in whole or in
part, until the aforesaid payment in full of the purchase price therefor is
received by the Company.
(g) ISSUANCE OF SHARES
The exercise of Options granted hereunder is subject
to the condition that if at any time the listing, registration or qualification
of the Shares covered by the Options upon any securities exchange or under any
state or federal law is necessary as a condition of or in connection with the
purchase or delivery of Shares, the delivery of any or all Shares pursuant to
exercise of the Options may be withheld unless and until such listing,
registration or qualification shall have been effected. Optionee agrees to
comply with any and all legal requirements relating to Optionee's resale or
other disposition of any Shares acquired under this Agreement. The Committee may
require, as a condition of exercise of any Options, that the Optionee represent,
in writing, that the Shares received upon exercise of the Options are being
acquired for investment and not with a view to distribution and agree that the
Shares will not be disposed of except pursuant to an effective registration
statement under the Securities Act of 1933, as amended, and only after any
required qualifications under applicable state securities laws, unless the
Company shall have received an opinion of counsel satisfactory to the Company
that such disposition is exempt from such registration and qualification. There
may be endorsed on certificates representing Shares issued upon the exercise of
Options such legends referring to the foregoing representations or any
applicable restrictions on resale as the Committee, in its discretion, shall
deem reasonably appropriate, as well as place such stop transfer orders with its
registrar and transfer agent as it deems reasonably appropriate.
(h) RIGHTS AS A SHAREHOLDER
Optionee shall acquire none of the rights of a
shareholder of the Company under this Agreement unless and until certificates
for such Shares are issued to Optionee upon the exercise of Options.
3. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
In the event of any stock split, stock dividend,
reclassification or recapitalization which changes the character or amount of
the Company's outstanding Common Stock while any portion of any Options
theretofore granted pursuant to this Agreement are outstanding but unexercised,
the Committee shall make such adjustments in the character and number of Shares
subject to such Options and in the Option Price as shall be equitable and
appropriate in order to make such Options, as nearly as may be practicable,
equivalent to such Options immediately prior to such change; PROVIDED, however,
that no such adjustment shall give any Optionee any additional benefits under
this Agreement; and PROVIDED FURTHER, that, if any such adjustment is made by
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reason of a transaction described in section 424(a) of the Code, it shall be
made so as to conform to the requirements of that section and the regulations
thereunder.
If any transaction (other than a change specified in the
preceding paragraph) described in section 424(a) of the Code affects the
Company's Common Stock subject to any unexercised Option theretofore granted
hereunder (hereinafter for purposes of this paragraph 3 referred to as the "old
option"), the Committee or any surviving or acquiring corporation may take such
action as it deems appropriate, and in conformity with the requirements of that
section and the regulations thereunder, to substitute a new option for the old
option, in order to make the new option, as nearly as may be practicable,
equivalent to the old option, or to assume the old option.
If any such change or transaction shall occur, the number and
kind of Shares to be issued upon the exercise of any Options shall be adjusted
to give effect thereto.
4. OPTIONEE BOUND BY PLAN
The Optionee hereby acknowledges receipt of a copy of the Plan
and agrees to be bound by the terms and provisions thereof, regardless of
whether such provisions have been set forth in this Agreement. In the event of
any conflict between this Agreement and the Plan, the Plan shall govern.
5. APPLICATION OF FUNDS
The proceeds received by the Company from the sale of Shares
subject to Options may be commingled with any other corporate funds and used for
any corporate purpose.
6. GENERAL
(a) Any communication in connection with this Agreement shall
be deemed duly given when delivered in person or mailed by certified or
registered mail, return receipt requested, to Optionee at his or her address
listed on the signature page hereof or such other address of which Optionee
shall have advised by similar notice, or to the Company or Committee at the
Company's then executive offices.
(b) This Agreement sets forth the parties' final and entire
agreement with respect to its subject matter, may not be changed or terminated
orally and shall be governed by and construed in accordance with the internal
law of the State of Florida. This Agreement shall bind and inure to the benefit
of Optionee, and his heirs, distributees and personal and legal representatives,
and the Company and its successors and assigns.
(c) As a condition of the granting of the Options hereunder,
Optionee agrees for Optionee and Optionee's heirs, distributees and personal and
legal representatives, that any dispute or disagreement which may arise under or
as a result of or pursuant to this Agreement shall be determined and resolved by
the Committee in its sole discretion, and any interpretation
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by the Committee of the terms of this Agreement or the Plan shall be final,
binding and conclusive.
(d) Wherever from the context it appears appropriate, each
term stated in either the singular or the plural shall include the singular and
the plural, and pronouns stated in the masculine, the feminine or the neuter
gender shall include the masculine, feminine and neuter.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
OPTIONEE: PRECISION RESPONSE CORPORATION,
a Florida corporation,
---------------------------------
---------------------------------- Xxxxx Xxxxxxx, President
Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Address
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Exhibit "B"
AMENDMENT TO STOCK OPTION AGREEMENT
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This Amendment to Stock Option Agreement (this "Amendment") dated as of
October 1, 1997, by and between PRECISION RESPONSE CORPORATION, a corporation
organized and existing under the laws of the State of Florida (hereinafter
referred to as "Company"), and XXXXXXX X. XXXXX, XX. (hereinafter referred to as
"Optionee").
WITNESSETH
WHEREAS, Company granted stock options to Optionee pursuant to that
certain Stock Option Agreement dated as of July 26, 1996 by and between Company
and Optionee, as amended (the "Stock Option Agreement"); and
WHEREAS, Company and Optionee desire to amend as set forth herein the
exercise price at which Optionee may purchase a share of the Company's common
stock pursuant to the Stock Option Agreement as set forth herein.
NOW THEREFORE, the parties agree as follows:
1. All capitalized terms used but not defined herein shall have the
meaning ascribed to them in the Stock Option Agreement.
2. The Stock Option Agreement shall be amended by changing the Option
Price from $16.75 to $7.41 per Share (which is the Fair Market Value per share
of Common Stock on the date hereof).
3. Section 2.(b) of the Stock Option Agreement is hereby amended by
adding a new additional paragraph to the end of such Section 2.(b) as follows:
"Notwithstanding the vesting schedule set forth above, the
Optionee shall become immediately 100% vested in all outstanding
Options and may immediately exercise such Options subject to the time
frames set forth in subparagraph (c) below, upon a Change in Control
(as defined in that certain Amendment to Employment Agreement dated as
of October 1, 1997, between the Company and the Optionee). Other than
as otherwise provided for in this subparagraph (b), Optionee shall not
become vested in any Options subsequent to the termination of his
employment regardless of any exercise period provided in subparagraph
(c) below."
4. Except as otherwise specifically modified by this Amendment, all
terms, conditions and provisions of the Stock Option Agreement shall remain
effective and shall continue to operate in full force throughout the entire term
of the Stock Option Agreement, as amended.
5. This Amendment shall be governed by and construed pursuant to the
laws of the State of Florida.
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6. This Amendment may be executed in counterparts, each of which shall
be an original, but both of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the day and year first above written.
Company:
PRECISION RESPONSE CORPORATION,
a Florida corporation
By:
---------------------------------
Name:
Title:
Optionee:
------------------------------------
XXXXXXX X. XXXXX, XX.
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Exhibit "B-1"
AMENDMENT TO STOCK OPTION AGREEMENT
This Amendment to Stock Option Agreement (this "Amendment") dated as of
October 1, 1997, by and between PRECISION RESPONSE CORPORATION, a corporation
organized and existing under the laws of the State of Florida (hereinafter
referred to as "Company"), and XXXXXXX X. XXXXX, XX. (hereinafter referred to as
"Optionee").
WITNESSETH
WHEREAS, the Company granted stock options to Optionee pursuant to that
certain Stock Option Agreement dated as of January 2, 1997 by and between
Company and Optionee (the "Stock Option Agreement"); and
WHEREAS, the Company and Optionee desire to amend as set forth herein
the vesting schedule and the exercise price at which Optionee may purchase a
share of the Company's common stock pursuant to the Stock Option Agreement.
NOW THEREFORE, the parties agree as follows:
1. All capitalized terms used but not defined herein shall have the
meaning ascribed to them in the Stock Option Agreement.
2. The Stock Option Agreement shall be amended by changing the Option
Price from $35.38 to $7.41 per Share (which is the Fair Market Value per share
of Common Stock on the date hereof).
3. Section 2.(b) of the Stock Option Agreement is hereby amended by
deleting subsections 2.(b) (i), (ii) and (iii) in their entirety and replacing
such subsections with the following:
"(i) Options to purchase 100,000 of the Shares shall vest on
April 2, 1997;
(ii) Options to purchase an additional 50,000 of the Shares
shall vest on April 2, 1998; and
(iii) Options to purchase the remaining 50,000 Shares shall
vest on April 2, 1999."
4. Except as otherwise specifically modified by this Amendment, all
terms, conditions and provisions of the Stock Option Agreement shall remain
effective and shall continue to operate in full force throughout the entire term
of the Stock Option Agreement, as amended.
5. This Amendment shall be governed by and construed pursuant to the
laws of the State of Florida.
6. This Amendment 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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IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the day and year first above written.
COMPANY:
PRECISION RESPONSE CORPORATION,
a Florida corporation
By:
-----------------------------------
Name:
Title:
OPTIONEE:
-------------------------------------
XXXXXXX X. XXXXX, XX.
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Exhibit "B-2"
AMENDMENT TO STOCK OPTION AGREEMENT
This Amendment to Stock Option Agreement (this "Amendment") dated as of
October 1, 1997, by and between PRECISION RESPONSE CORPORATION, a corporation
organized and existing under the laws of the State of Florida (hereinafter
referred to as "Company"), and XXXXXXX X. XXXXX, XX. (hereinafter referred to as
"Optionee").
WITNESSETH
WHEREAS, Company granted stock options to Optionee pursuant to that
certain Stock Option Agreement dated as of February 18, 1997 by and between
Company and Optionee (the "Stock Option Agreement"); and
WHEREAS, Company and Optionee desire to amend as set forth herein the
vesting schedule and the exercise price at which Optionee may purchase a share
of the Company's common stock pursuant to the Stock Option Agreement as set
forth herein.
NOW THEREFORE, the parties agree as follows:
1. All capitalized terms used but not defined herein shall have the
meaning ascribed to them in the Stock Option Agreement.
2. The Stock Option Agreement shall be amended by changing the Option
Price from $33.38 to $7.41 per Share (which is the Fair Market Value per share
of Common Stock on the date hereof).
3. Section 2.(b) of the Stock Option Agreement is hereby deleted in its
entirety and replaced with the following:
"(b) VESTING OF OPTIONS
Subject to such further limitations as are provided
for herein, the Options shall vest, if at all (and be exercisable once vested)
in the following amounts:
(i) Options to purchase 25,000 of the Shares shall vest on
February 18, 1997;
(ii) Options to purchase an additional 12,500 of the Shares
shall vest on February 18, 1998; and
(iii) Options to purchase the remaining 12, 500 Shares shall
vest on February 18, 1999.
Notwithstanding the vesting schedule set forth above, the
Optionee shall become immediately 100% vested in all outstanding
Options and may immediately exercise such Options subject to the time
frames set forth in subparagraph (e) below, upon a Change in
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Control (as defined in that certain Amendment to Employment Agreement
dated as of October 1, 1997, between the Company and the Optionee).
Optionee shall not become vested in any Options subsequent to the
termination of his employment regardless of any exercise period
provided in subparagraph (e) below."
4. Except as otherwise specifically modified by this Amendment, all
terms, conditions and provisions of the Stock Option Agreement shall remain
effective and shall continue to operate in full force throughout the entire term
of the Stock Option Agreement, as amended.
5. This Amendment shall be governed by and construed pursuant to the
laws of the State of Florida.
6. This Amendment may be executed in counterparts, each of which shall
be an original, but both of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the day and year first above written.
Company:
PRECISION RESPONSE CORPORATION,
a Florida corporation
By:
---------------------------------
Name:
Title:
Optionee:
------------------------------------
XXXXXXX X. XXXXX, XX.
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