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EXHIBIT 10.8
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (this "Amendment") dated
and effective as of September 1, 1999, by and between Precision Response
Corporation, a corporation organized and existing under the laws of the State of
Florida ("Company"), and Xxxxx X. Xxxxxxx ("Executive").
W I T N E S S E T H
WHEREAS, Company currently employs Executive pursuant to that certain
Employment Agreement dated May 15, 1996, by and between Company and Executive,
as previously amended by that certain Amendment to Employment Agreement dated
and effective as of April 1, 1999, by and between Company and Executive
(collectively, the "Employment Agreement"); and
WHEREAS, Company and Executive desire to amend one of the provisions of
the Employment Agreement as set forth herein.
NOW THEREFORE, the parties agree that the Employment Agreement shall be
amended effective as of and after the date hereof as follows:
1. Schedule 6(e) to the Employment Agreement is amended to provide,
immediately following the existing description of the Split Dollar Plan, and as
an addition thereto, the following:
"Company shall also commence funding a portion of the premiums
due on a life insurance policy dated September 25, 1997, and issued
September 26, 1997, by New York Life Insurance Company insuring the
lives of Executive and his spouse, Xxxx X. Xxxxxxx, pursuant to a
separate written "Split Dollar Agreement and Collateral Assignment" in
the form executed by two separate trusts administered for the benefit
of Executive's family, one of which is the owner of the insurance
policy, and Company, as same may be amended from time to time."
2. 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.
3. This Amendment shall be governed by and construed pursuant to the
laws of the State of Florida.
4. 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 caused this Amendment to be
duly executed as of the day and year first above written.
PRECISION RESPONSE CORPORATION
BY: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, Chairman of the Board
/s/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
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THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
Third Amendment to Employment Agreement (this "AMENDMENT") dated as of
January 12, 2000 and effective as of the Effective Time (as defined below),
between Precision Response Corporation, a Florida corporation ("COMPANY"), and
Xxxxx Xxxxxxx ("EXECUTIVE"). "EFFECTIVE TIME" has the meaning set forth
in the Merger Agreement described below.
Company currently employs Executive pursuant to that certain Employment
Agreement, dated May 15, 1996, as amended as of April 1, 1999 and September 1,
1999, between Company and Executive (collectively, the "AGREEMENT");
Company has entered into an Agreement and Plan of Merger (the "MERGER
AGREEMENT") with USA Networks, Inc., a Delaware corporation ("USAi"), and its
wholly-owned subsidiary ("MERGER SUB"), pursuant to which Company has agreed to
merge with and into Merger Sub, subject to certain terms and conditions. It is a
material condition to such merger (the "MERGER") that Executive enter into this
Amendment, and Executive has agreed to enter into this Amendment in
consideration of, among other things, the benefits to be received by the
Executive in connection with the Merger.
The parties agree that the Agreement shall be amended effective on and
after the Effective Time (whether or not the Executive continues to be employed
by the Company at such time) as follows:
1. Paragraph 1 of the Agreement is amended by adding the following
sentence between the second and third sentences thereof:
"Executive shall report directly to the President of USAi's Electronic
Commerce and Services division (the "REPORTING OFFICER")."
In addition, the third sentence of paragraph 1 of the Agreement is amended by
replacing the words "Board of Directors of the Company or the Chairman of the
Board" with "Reporting Officer".
2. (a) Paragraph 6(b) of the Agreement is deleted in its entirety, and
Executive hereby waives and releases any and all rights or benefits that he may
now have to be granted any stock options thereunder in respect of the years
ended December 31, 1996, December 31, 1997 and December 31, 1998 (but excluding
the year ended December 31, 1999 in which it is acknowledged Executive was
granted stock options thereunder) and in respect of any year commencing after
December 31, 1999.
(b) At or immediately following the Effective Time and provided that
Executive continues to be employed by the Company at such time, in
consideration of Executive's entering into this Amendment and continued
employment with the Company at the Effective Time, Executive shall be granted
under USAi's 1997 Stock and Annual Incentive Plan
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a non-qualified stock option to purchase 75,000 shares of USAi common stock on
the standard terms and conditions for option grants by USAi to its employees.
3. Paragraph 7(d) of the Agreement is deleted in its entirety.
4. The heading to paragraph 8(a) of the Agreement is amended by
deleting the words "Voluntary Termination," and the first sentence of
paragraph 8(a) of the Agreement is amended by deleting the words "voluntary or"
in the second line thereof.
5. The first sentence of paragraph 8(c) of the Agreement is amended by
deleting the words "or upon expiration of the Employment Term pursuant to the
terms of paragraph 2 hereof" from the fourth and fifth lines thereof.
6. Paragraph 10 of and Schedule 10 to the Agreement are deleted in
their entirety and the Registration Rights Agreement, dated as of May 15, 1996,
between Company and Executive is terminated in its entirety.
7. The Agreement is amended to add a new paragraph 20 at the end
thereof as follows:
20. Non-Disclosure of Confidential Information
A. Confidential Information. Executive acknowledges that
Executive has been informed by Company of Company's policy to
maintain as secret and confidential all information and materials
relating to (i) the financial condition, operations, business and
interests of Company, (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
Company, and (iii) the nature and terms of Company'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 Infomation"). Executive
further acknowledges that such Confidential Information is of great
value to Company and has been developed by Company as a result of
substantial effort and expense and that Executive has been and will
be given access to Company's clients and prospective clients because
of Executive's business position with Company. Therefore, Executive
understands that it is reasonably necessary to protect Company's
goodwill, trade secrets and business interests that Executive agree
and, accordingly, Executive does hereby agree, that Executive will
not directly or indirectly (except where authorized by the Board of
Directors or Chairman of the Board of Company for the benefit of
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Company 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. Company's Materials. In accordance with the foregoing,
Executive furthermore agrees that (i) Executive will at no time
retain or remove from the premises of Company 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 of
Company or related to its business for any purpose unconnected with
the performance of Executive's duties with Company and (ii) upon the
cessation or termination of Executive's employment with Company for
any reason, Executive shall forthwith deliver or cause to be
delivered up to Company 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
Executive's possession or under Executive's control relating to any
Confidential Information or any other material or thing which is the
property of Company.
8. The Agreement is amended to add a new paragraph 21 at the end
thereof as follows:
21. Covenant Not-To-Compete
In view of (a) the Confidential Information to be obtained by
or disclosed to Executive, and (b) the consideration received by
Executive in connection with the merger (the "Merger") of the
Company with and into a wholly-owned subsidiary of USA Networks,
Inc. ("USAi"), a Delaware corporation, the options to purchase stock
in USAi granted to Executive as of the Effective Time and the
consideration payable to Executive under this Agreement, and as a
material inducement to USAi to enter into the Merger, Executive
covenants and agrees that, for as long as Executive is employed by
Company and for a period of two (2) years after the later of (A) the
last day of the Initial Term (if Executive ceases for any reason to
be employed by Company before the expiration of the Initial Term)
and (B) the date on which Executive ceases for any reason to be
employed by Company, Executive shall not, directly or indirectly,
(i) engage in any venture, enterprise, activity or business,
passively or actively, as an owner, consultant, adviser,
participant, employee, agent or in any
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other capacity, competitive with the business in which Company is
engaged or involved during the period that Executive is employed by
Company and, in the case of the period after termination of
employment, in which Company is engaged or involved as of the date
Executive ceases for any reason to be employed by Company, anywhere
within the continental United States, including, without limitation,
the sale of any products or services sold or offered by Company to
any person or entity who is or was a client of Company and for or to
whom Company is performing services or selling products or for or to
whom Company has performed services or sold products at any time
during the one-year period ending on Executive's termination of
employment, or (ii) solicit the services of, or hire, directly or
indirectly, whether on Executive's own behalf or on behalf of
others, any managerial or executive employee, account manager or
other sales or marketing employee, programmer, information services
employee (including, without limitation, network or other
information services or Internet operation employee) or database
management or marketing employee of Company who was or is employed
by Company at any time during the two-year period ending on the date
of termination of Executive's employment. Notwithstanding the
foregoing, nothing in this paragraph 21 shall prohibit Executive
from owning as a passive investor beneficially and/or of record less
than 5% of the outstanding equity securities of any entity whose
equity securities are registered under the Securities Exchange Act
of 1934, as amended, or are listed for trading on any United States
or foreign stock exchange. Executive acknowledges that the business
of Company 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 Company's trade secrets
and other legitimate business interests.
9. The Agreement is amended to add a new paragraph 22 in its entirety
as follows:
22. Company's Remedies for Breach of Paragraphs 20 and 21
Executive covenants and agrees that if Executive shall violate or
breach any of Executive's covenants or agreements provided for in
paragraph 20 or 21 hereof, Company shall be entitled to an
accounting and repayment of all profits, compensation, commissions,
remuneration and benefits which Executive 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 paragraph 20 or 21 hereof, Company
shall be entitled to a temporary and permanent
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injunction or any other appropriate decree of specific performance
or equitable relief 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 Executive. Company
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 Company 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 Company may have with respect to such breach or
violation.
10. The Agreement is amended to add a new paragraph 23 in its entirety
as follows:
23. Reasonableness of Restrictions
A. Reasonableness. Executive acknowledges that any breach or
violation of paragraph 20 or 21 hereof will cause irreparable injury
and damage and incalculable harm to Company. Executive further
acknowledges that Executive has carefully read and considered the
provisions of paragraphs 20, 21 and 22 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 Company.
B. Severability. Executive understands and intends that each
provision and restriction agreed to by Executive in paragraphs 20,
21 and 22 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, paragraphs 20, 21 and/or 22
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
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area and/or type of restriction which such court deems reasonable
and enforceable.
C. Survivability. The restrictions, acknowledgments, covenants
and agreements of Executive set forth in paragraphs 20, 21, 22 and
23 of this Agreement shall survive any termination of this Agreement
or of Executive's employment (for any reason, including expiration
of the Employment Term).
D. Definition of Company. For purposes of paragraphs 20, 21,
22 and 23 of this Agreement, the term "Company" includes the Company
and all wholly-owned subsidiaries of Company.
11. Except as otherwise specifically modified by this Amendment, all
terms, conditions and provisions of the Agreement shall remain effective and
shall continue to operate in full force throughout the entire term of the
Agreement, as amended hereby.
12. This Amendment shall be governed by and construed pursuant to the
laws of the State of Florida. Any and all disputes between the parties which may
arise pursuant to the Agreement, as amended by this Amendment, will be heard and
determined before an appropriate federal court in Florida, or, if not
maintainable therein, then in an appropriate Florida state court.
13. 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.
14. If the Merger Agreement is terminated before the Effective Time,
this Amendment shall be null and void and of no force or effect.
The parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
PRECISION RESPONSE CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Chairman
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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