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Exhibit 10.2
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of April 15, 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 XXXXXX
X. XXXXX (hereinafter referred to as "Employee").
W I T N E S S E T H:
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WHEREAS, Employer is a Florida corporation engaged in the
teleservicing, database management and marketing and fulfillment
business;
WHEREAS, Employer desires to employ Employee upon the terms and
conditions set forth below and Employee desires to accept 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
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, Employee's term of employment under this Employment Agreement
shall commence on the date hereof and shall expire on the third anniversary of
the date hereof (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 other
written or oral obligations or commitments which would interfere with Employee's
acceptance of employment pursuant to the terms hereof or the full performance of
Employee's obligations hereunder.
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4. DUTIES AND EXTENT OF SERVICES
Employee's duties and responsibilities hereunder shall be those
reasonably assigned to Employee from time to time by Employer. Employee shall,
unless and until otherwise determined by Employer, and upon appointment by the
Company's Board of Directors, serve as Employer's Senior Vice
President-Facilities Acquisition and Development, and shall on an active,
full-time basis, subject to the direction of Employer's Chief Executive Officer,
President, Chief Operating Officer and Executive Vice President, attend to
matters in the areas of site acquisition and development and general corporate
planning. Employee shall report directly to Employer's Chief Executive Officer,
President, Chief Operating Officer and Executive Vice President, or as otherwise
directed from time to time by Employer's Chief Executive Officer, President,
Chief Operating Officer or Executive Vice President. Employee shall be given
responsibility and assignments commensurate with the position of Senior Vice
President-Facilities Acquisition and Development or commensurate with such other
executive or managerial position he may hold from time to time during the
Employment Term. Employee shall be based at offices of Employer located in Dade,
Broward or Palm Beach County, Florida, provided that Employee understands that
he will or may be required to travel extensively during the Employment Term in
connection with his duties.
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 $150,000 per annum, $175,000 per annum and $200,000 per annum
for the first, second and third years of the Employment Term, respectively.
Employer may decide, in its sole discretion, to increase (but not to decrease)
the Salary at any time during 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 for
each year of the Employment Term the amount of which shall be determined by
Employer in its discretion (the "Bonus Amount"), but shall not be less than
$25,000 for any of the three years of the Employment Term. The Bonus Amount
shall be paid on or before March 31 of the year following the year to which it
relates.
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The 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, group and
life insurance) as are made available by Employer from time to time, in
Employer's sole discretion, to all other employees generally (without limitation
of the foregoing, Employer shall continue to pay the premiums on Employee's
group disability insurance policy for as long as such policy remains in effect
during the Employment Term).
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 ALLOWANCE. In order to defray Employee's auto expenses
incurred in connection with the performance of his duties, Employer shall pay to
Employee a monthly auto allowance of $500.
7. VACATIONS
Employee shall be entitled to three (3) weeks vacation each full
year of the Employment Term, 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 shall be
absent from work for vacation shall be at the reasonable discretion of Employer.
After Employee has attained nine years of service with Employer, Employee shall
be entitled to one additional week of vacation in accordance with the foregoing
provisions.
8. ENFORCEMENT COSTS
If any legal action or other proceeding is brought for the
enforcement of this Employment Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection
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with any provision of this Employment Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees, (including, without limitation,
all such fees, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding in
addition to any other relief to which such party may be entitled. Attorneys'
fees shall include, without limitation, paralegal fees, investigative fees,
administration costs, and all other charges billed by the attorney to the
prevailing party.
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 death; or upon Employee becoming Disabled (as later
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
Employee's resignation to Employer which shall specify a resignation date no
earlier than ninety (90) days following the date of delivery of such notice of
resignation.
B. DEFINITIONS OF CAUSE AND DISABLED. For purposes of this
Employment Agreement, "Cause" shall mean and include: (i) commission of a
felony, or commission of acts of fraud or dishonesty; (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 and the employment duties are not resumed within five (5) days following
Employee's receipt of written notice thereof; (v) negligence in the performance
of employment duties (other than isolated or occasional negligent conduct); (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) repeated instances or acts of insubordination without reasonable
justification therefor; 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
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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.
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, Employer shall pay to Employee, within thirty (30) days following
the date of such termination or resignation, the Salary, if any, accrued and
unpaid through the date of 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.
D. COMPENSATION UPON DEATH OR DISABILITY. Upon the death of
Employee, or termination of employment because Employee is 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), 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, in the sole discretion of Employer, the portion of
the minimum Bonus Amount accrued through the date of termination; and Employee
(or such legal guardian, legal representative or any 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. In the event that
Employer terminates Employee's employment under this Employment Agreement
without Cause, or Employee resigns as a result of a breach by Employer of this
Employment Agreement which is not cured within 30 days following written notice
thereof by Employee to Employer or as a result of Employer requiring Employee to
be based in a location other than Dade, Broward or Palm Beach County, Florida,
Employee's sole and exclusive compensation and remedy hereunder shall be to
receive from Employer, and Employer shall pay, (i) the amount of Salary, if any,
accrued and unpaid through the date of termination, and the minimum Bonus Amount
for the year in which termination of employment occurs, appropriately prorated
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for such year, (ii) the Salary that Employee would have received during the
period following termination through the expiration of the Employment Term, or
for one year after the date of termination, whichever period is shorter (as the
case may be, the "Severance Period"), as and when it would have been payable if
Employee had remained an employee of Employer, and (iii) the minimum Bonus
Amount for the Severance Period (appropriately prorated if the Severance Period
is shorter than one year), payable within thirty (30) days following the end of
the Severance Period.
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,
technology, know-how, records, products, services, cost information, inventions,
computer software programs, 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, 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.
Any software, technology, know-how, trade secrets or intellectual property
rights of any kind developed by Employee during the period of his employment
with Employer which in any way relate or have
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application or value to Employer's business shall be the property, as between
Employee and Employer, solely of Employer.
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, software
programs 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 substantial 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) solicit
the services of, or hire, directly or indirectly, whether on Employee's own
behalf or on behalf of others, any managerial or executive employee or account
manager or programmer or other information services personnel of Employer who is
employed by Employer as of or following the date of termination of Employee's
employment, or (B) engage in any venture, enterprise, activity or business,
passively or actively, as an owner, or as a consultant, adviser, independent
contractor, participant, employee or agent in a capacity relating to corporate
management, site acquisition or development, corporate planning or contracts
administration, competitive with the business of Employer anywhere within the
continental United States (other than passive ownership of less than five
percent of a publicly-traded company). 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
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geographical area of restriction is reasonable in the circumstances to protect
Employer's trade secrets and other legitimate business interests.
12. LAW APPLICABLE
This Employment Agreement shall be governed by and construed
pursuant to the laws of the State of Florida.
13. 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 mailed to Employer, and to Employee's then current residence,
if mailed to Employee.
14. 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
concerning, the subject matter hereof and may not be amended, modified or
terminated except by a writing signed by the parties hereto.
15. 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.
16. 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.
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17. 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.
18. INDEPENDENT COUNSEL
Employer has been represented by Xxxxx Xxxx Xxxxx Constant Xxxxxxxx
& Bilzin in connection with the preparation, negotiation, execution and delivery
of this Agreement. Employee has been represented by Zack, Sparber, Koznitzky,
Xxxxxx & Xxxxxx in connection with the preparation, negotiation, execution and
delivery of this Agreement.
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 XXXXXXX
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Xxxxx Xxxxxxx, President
EMPLOYEE:
/s/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX
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