Exhibit 10.2
PREMIERE GLOBAL SERVICES,
INC.
FOURTH AMENDED AND
RESTATED
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS FOURTH AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT is made and entered into by and among
PREMIERE GLOBAL SERVICES, INC. , a Georgia corporation,
f/k/a PTEK Holdings, Inc. (the “Company”), and
JEFFREY A. ALLRED (the “Executive”), on April
18, 2005, to be effective as of January 1, 2005.
BACKGROUND
STATEMENT
The Company and the Executive
entered into that certain Third Amended and Restated Executive
Employment Agreement dated as of June 26, 2003 (the “Original
Agreement”). The Company and the Executive desire to amend
and restate the Original Agreement as set forth herein.
THEREFORE,
in consideration of and reliance
upon the foregoing Background Statement and the representations and
warranties contained in this Agreement, and other good and valuable
consideration, the Company and the Executive amend and restate the
Original Agreement as follows:
TERMS
Section 1. Duties.
The Company will continue to employ
the Executive as its President and Chief Operating Officer. The
Executive will have the powers, duties and responsibilities set
forth in the Company’s Bylaws and as from time to time
assigned to him by the Company’s board of directors (the
“Board”) or its Chief Executive Officer consistent with
such position, and the Executive will report directly to the Chief
Executive Officer. During the term of his employment under this
Agreement, the Executive will devote substantially all of his
business time to faithfully and industriously perform his duties
and promote the business and best interests of the Company;
provided, however, that the Executive is not prohibited from (i)
serving on the board of directors of other companies or (ii)
participating in personal, civic and charitable activities, so long
as such activities do not materially interfere with the performance
of the Executive’s responsibilities under this
Agreement.
Section 2. Compensation.
Section 2.1. Base
Salary. During the term
of Executive’s employment under this Agreement, the Company
will pay the Executive a base salary (“Base Salary”) at
the annual rate of $600,000, less normal withholdings and payable
in accordance with the Company’s standard payroll practices.
The Compensation Committee of the Board of Directors of the Company
shall review the Executive’s Base Salary annually and, in its
sole discretion, may increase the Executive’s Base Salary
from time to time. Pursuant to such review, the Compensation
Committee will consider, among other things, the Executive’s
own performance and the Company’s performance. The Executive
will also be entitled to any additional compensation provided for
by resolution of the Compensation Committee.
Section 2.2. Bonus
Compensation.
(i) In addition to his Base Salary,
the Executive will be entitled to earn an annual bonus for each
calendar year during the term of this Agreement in an amount
determined under Section 2.2(ii) based upon performance criteria
established from year to year by the Compensation Committee. Unless
the Committee determines otherwise prior to the end of the first
quarter of a given calendar year, the bonus for such year will be
based upon the Company achieving quarterly and annual targets for
revenue (“Revenue”) and for earnings before interest,
taxes, depreciation and amortization (“EBITDA”).
Revenue and EBITDA targets and actual Revenue and EBITDA shall be
determined by the Company in the same manner as under the
Company’s Bonus Plan for Corporate Associates.
(ii) The Executive’s target
cash bonus (“Cash Bonus”) for each calendar year will
be equal to 100% of his Base Salary for such year, subject to the
sliding scale adjusters described below. Unless the Committee
determines otherwise prior to the end of the first quarter of a
given calendar year (a) 80% of the target bonus will be allocated
to the achievement of cumulative quarterly targets ( i.e.,
20% per quarter) and 20% will be allocated to the achievement of
annual targets, and (b) the bonus will be based two-thirds (2/3) on
achievement of EBITDA targets and one-third (1/3) on achievement of
Revenue targets. The amount of bonus earned each quarter and
calendar year shall be determined based on the
following:
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Percentage of Target
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Percentage of Bonus Earned
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90% - 94.99%
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70
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%
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95% - 99.99%
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85
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%
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100% - 104.99%
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100
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%
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105% - 109.99%
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125
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%
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110% or more
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150
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%
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(iii) For example, if the
Executive’s Base Salary is $600,000, EBITDA was 105% of
target for the first quarter, and Revenue was 98% of target, the
Executive’s earned Cash Bonus for the first quarter would be
calculated as follows:
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Target
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% Earned
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Bonus
Earned
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Target Cash Bonus for Q1
(20% of $600,000)
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=
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$
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120,000
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2/3 based on EBITDA
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=
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$
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80,000
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x
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125
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%
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=
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$
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100,000
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1/3 based on Revenue
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=
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$
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40,000
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x
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85
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%
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=
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34,000
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Earned Cash Bonus for Q1
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$
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134,000
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(iv) Each of the earned quarterly
Cash Bonuses for the first three quarters of a calendar year will
be paid to the Executive within forty-five (45) days following the
end of the relevant quarter, and the earned fourth quarter and
annual Cash Bonus for a calendar year will be paid to the Executive
by March 15 following the end of such calendar year.
(v) Beginning in calendar year 2005,
the Executive will also be entitled to receive a bonus
(“Stock Bonus”) payable in shares of restricted common
stock of the Company issued under the Company’s incentive
compensation plan. The Stock Bonus would be payable on the same
dates as the quarterly and/or annual Cash Bonuses, as the case may
be, and will consist of a number of shares of restricted stock
equal to (a) the dollar amount of the Cash Bonus payable for such
period divided by (b) the per share closing price of the common
stock as reported by the New York Stock Exchange (or other primary
exchange on which the common stock may then trade) on the date of
payment of the relevant Cash Bonus. No fractional shares shall be
issued; cash will be paid in lieu thereof. Subject to Section
2.2(vii), each share of restricted stock issued as a Stock Bonus
will vest (and will no longer be subject to risk of forfeiture) on
the business day following the date of payment.
(vi) For example, if the Executive
is entitled to receive a quarterly Cash Bonus of $134,000 and the
closing price of the Company’s common stock is $10 per share
on the date of payment of that Cash Bonus, then the Executive would
also be entitled to receive on the date of such payment a Stock
Bonus of 13,400 shares of Company common stock. The shares of
restricted stock would vest on the business day following the
payment date.
(vii) The restricted share agreement
related to any Stock Bonus shares shall provide that those shares
may not be sold or transferred for a period of 18 months following
the date on which those shares are issued; provided, however, that
this transfer restriction shall not apply to the following: (a) any
sale or transfer (including an implied sale pursuant to a net share
settlement arrangement with the Company) to satisfy state, local,
federal or foreign income tax liabilities of the Executive arising
from the receipt or vesting of those shares; (b) any transfer to a
charitable trust established by the Executive; and (c) any transfer
upon or following a Change in Control of the Company, a termination
of the Executive by the Company without Cause or by the Executive
for Good Reason, or as otherwise permitted by the Compensation
Committee, in its sole discretion.
(viii) In connection with the
execution of this Agreement, the Company will grant to Executive
120,000 shares of restricted common stock of the Company issued
under the Company’s incentive compensation plan. In
recognition of Executive’s services during the first quarter
of 2005, 30,000 of such shares will be immediately vested as of the
date of grant. The remaining shares of restricted stock will vest
(and will no longer be subject to risk of forfeiture) in three (3)
equal quarterly installments beginning on June 30, 2005, provided
that Executive is then still employed by the Company or any of its
Affiliates. The vesting of such restricted stock will accelerate in
full upon termination of Executive’s employment by reason of
his death or Disability, by the Company without Cause, or by
Executive for Good Reason. In addition, such restricted stock will
vest in full and will no longer be subject to risk of forfeiture
upon the occurrence of a Change of Control of the
Company.
(ix) The Executive will also be
entitled to any additional bonus and incentive compensation
provided for by resolution of the Compensation
Committee.
Section 2.3. Employee
Benefits. During the term
of his employment under this Agreement, the Executive will be
entitled to participate in all employee benefit programs
which
are provided by the Company generally to senior
executives of the Company, including (a) any pension,
profit-sharing, or deferred compensation plans, (b) any medical,
health, dental, disability and other insurance programs and (c) any
fringe benefits, such as club dues, professional dues, the cost of
an annual medical examination and the cost of professional fees
associated with tax planning and the preparation of tax returns, on
a basis at least equal to the other senior executives of the
Company. In addition to such benefits, the Company will maintain a
$1,000,000 term life insurance policy on the life of and in the
name of the Executive, and such other insurance as the Board or the
Compensation Committee of the Board may determine. The Executive or
his designee will be the owner of such insurance policy and will
have all rights pursuant thereto, including, without limitation,
the right to transfer ownership and designate beneficiaries. Upon
termination of the Executive’s employment without Cause or
for Good Reason, or in the event that the Company fails to renew
the term of this Agreement, the Executive will be entitled to
continue to participate (i) for the longer of (a) twelve (12)
months after the date of termination or (b) the remaining term of
this Agreement as provided in Section 4 hereof as if such
termination had not occurred, in any dental, disability, life or
similar programs provided by the Company and in which he
participated immediately before the date of termination, and (ii)
for a period of sixty (60) months after the date of termination
without Cause or for Good Reason, or for a period of twenty-four
(24) months after the termination of this Agreement due to the
Company’s failure to renew the term of this Agreement, in any
medical or health plans and programs provided by the Company and in
which he participated immediately before the date of termination,
on the same basis as during his employment (including payment by
the Company of the costs and expenses associated with such programs
on the same terms as during the time the Executive was employed
with the Company). In meeting its obligations under this provision
the Company will take all actions which may be necessary or
appropriate to comply with criteria set forth by the
Company’s insurance carriers and other program providers
(including the continued employment of the Executive in some
nominal capacity if necessary) to continue the Executive’s
participation or, in the Company’s discretion, the Company
may provide equivalent coverage under alternative arrangements.
With respect to continued coverage under any such medical or health
plan, if the Executive becomes eligible for health benefits through
any arrangement sponsored by or paid for by a subsequent employer
of the Executive, then continued coverage under any arrangement
provided by the Company will be made secondary to, and coordinated
with, such other coverage in which the Executive is
eligible.
Section 2.4. Reimbursement of
Expenditures. The Company
will reimburse the Executive for all reasonable expenditures
incurred by the Executive in the course of his employment or in
promoting the interests of the Company, including expenditures for
(i) transportation, lodging and meals during overnight business
trips, (ii) business meals and entertainment, (iii) supplies and
business equipment, (iv) long-distance telephone calls and (v)
membership dues of business associations, in accordance with the
policies and procedures of the Company to the extent applicable
generally to senior executive officers.
Section 2.5. Severance
Pay. If the
Executive’s employment with the Company under this Agreement
is terminated (1) by the Executive for Good Reason, or (2) by the
Company for any reason other than Cause, death, or Disability, then
in addition to any other rights and remedies the Executive may
have, the Executive will be entitled to receive severance pay (the
“Severance Amount”) equal to 2.99 times the greater of
(a) the sum of (i) the Executive’s annual Base Salary in
effect at the date of termination plus (ii) 200% of his target Cash
Bonus under Section 2.2 hereof for the year in which the date of
termination occurs or (b) the sum of (i) the highest annual Base
Salary, and (ii) 200% of the highest Cash Bonus, paid to the
Executive for any of the three (3) calendar years prior to the date
of termination. Subject to Section 2.10 and
Section 7 hereof, such Severance Amount will be
payable in cash in substantially equal installments in accordance
with the Company’s standard payroll practices over the twelve
(12) month period following the date of termination. As a condition
to the payment of the Severance Amount, the Executive will sign a
release and waiver of claims in substantially the form set forth in
Exhibit A hereto (the “Release”).
Section 2.6. Disability of
Executive. If during the
term of the Executive’s employment under this Agreement the
Executive, in the opinion of a majority of the Board (excluding the
Executive), as confirmed by competent medical evidence, becomes
physically or mentally unable to perform his duties for a
continuous period (“Disabled”), then for the first year
of his Disability the Executive will receive his full Base Salary
and for the next six months of his Disability he will receive
one-half of his Base Salary (the “Disability
Payments”), payable pursuant to the Company’s normal
payroll practices. (The Company may satisfy this obligation in
whole or in part by payments to the Executive provided through
disability insurance.) The Company will not, however, be obligated
to pay bonus compensation or an automobile allowance with respect
to the period of Disability. Bonus compensation in this
circumstance will be a pro rata portion of the bonus the Executive
would have earned absent the period of Disability based upon the
number of days during the fiscal year the Executive was not
Disabled. When the Executive is again able to perform his duties he
will be entitled to resume his full position and salary.
Notwithstanding the foregoing, if the Executive’s Disability
endures for 180 nonconsecutive days over a 12-month period, then
the Company may terminate the Executive’s employment under
this Agreement after delivery of ten (10) days written notice. In
the event that such termination occurs prior to the end of the
18 th month following the Board’s
determination of Executive’s Disability, the Company shall
continue to pay the Disability Payments through the end of such
18-month period, as provided in this Section 2.6. The Executive
hereby agrees to submit himself for appropriate medical examination
by a physician selected by the Company for the purposes of this
Section 2.6.
Section 2.7. Death of
Executive. Within
forty-five (45) days after the Executive’s death during the
term of this Agreement, the Company will pay to the
Executive’s estate, or his heirs, the amount of any accrued
and unpaid Base Salary (determined as of the date of death) and
vested, accrued and unpaid bonus compensation determined as if the
Company’s fiscal year ended at the date of death. In
addition, the Company will pay to the Executive’s spouse (or
if she is not alive, to his estate or heirs) a death benefit of
$5,000.
Section 2.8. Automobile
Allowance. During the
term of his employment under this Agreement, the Company will pay
the Executive a monthly automobile allowance of $1,000.
Section 2.9. Vacation.
The Executive will be entitled to
four (4) weeks paid vacation annually, which may be taken in
accordance with the policies and procedures of the Company to the
extent applicable generally to senior executive officers. Unused
vacation time will accumulate and carryover to subsequent years.
Any unused vacation at the date of termination of this Agreement
(for any reason) will be paid to the Executive promptly following
the date of termination.
Section 2.10. Change in
Control.
(i) If, during the twenty-four (24)
month period following a Change in Control of the Company, the
Executive’s employment with the Company under this Agreement
is terminated (1) by the Executive for Good Reason, or (2) by the
Company for any reason other than Cause, death, or Disability, then
in addition to any other rights
or remedies the Executive may have,
the Executive will be entitled to receive the Severance Amount
payable in a lump sum upon the effective date of such termination.
As a condition to the payment of the Severance Amount, the
Executive will sign the Release.
(ii) For the purposes of this
Agreement, a “Change in Control” shall mean the
occurrence of any of the following events:
(a) An acquisition (other than
directly from the Company) of any voting securities of the Company
(“Voting Securities”) by any “Person” (as
the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934 (the “1934 Act”))
immediately after which such Person has “Beneficial
Ownership” (within the meaning of Rule 13d-3 promulgated
under the 1934 Act) of 50% or more of the combined voting power of
the Company’s then outstanding Voting Securities; provided,
however, that in determining whether a Change in Control has
occurred, Voting Securities that are acquired in an acquisition by
(i) an employee benefit plan (or a trust forming a part thereof)
maintained by (A) the Company or (B) any corporation or other
person of which a majority of its voting power or its equity
securities or equity interests are owned directly or indirectly by
the Company (a “Subsidiary”), or (ii) the Company
or