Exhibit 10.57
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of
October 29, 2003, to be effective as of January 1, 2004 (the "Effective Date")
by and between VODAVI TECHNOLOGY, INC., a Delaware corporation ("Employer") and
XXXXXX X. XXXXXXX ("Employee").
RECITALS
A. Vodavi Direct, Inc., an Arizona corporation ("VDI") and
Employee are currently parties to that certain Employment Agreement dated March
1, 2002 (the "Prior Employment Agreement").
B. VDI is a wholly owned subsidiary of Vodavi Communications
Systems, Inc., an Arizona corporation, which in turn is a wholly owned
subsidiary of Employer.
C. Pursuant to Section 6(g) of the Prior Employment Agreement,
the Prior Employment Agreement may not be modified or amended other than by an
agreement in writing.
D. Employer desires to employ Employee and Employee desires to
accept such employment, all on the terms and conditions hereinafter set forth.
E. Employer, VDI, and Employee believe that it is in their mutual
best of interests that this Agreement shall supersede the Prior Employment
Agreement in its entirety pursuant to the terms hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants set forth in this Agreement, the parties hereto agree as
follows:
1. EMPLOYMENT. Employer hereby employs Employee, and
Employee hereby accepts such employment, as Vice President - Dealer Sales of
Employer and in such other capacities and for such other duties and services as
shall from time to time be mutually agreed upon by Employer and Employee.
2. FULL TIME OCCUPATION. Employee shall devote
Employee's entire business time, attention, and efforts to the performance of
Employee's duties under this Agreement, and shall serve Employer faithfully and
diligently and shall not engage in any other employment while employed by
Employer.
3. COMPENSATION AND OTHER BENEFITS.
(a) SALARY. Employer shall pay to Employee, as
compensation for the services rendered by Employee as follows: (1) during the
period beginning on October 1, 2003 through and including December 31, 2003,
Employer shall pay to Employee a base salary at a rate of $125,000 per annum,
and (2) during the period beginning on the Effective Date through and including
December 31, 2004, Employer shall pay to Employee as compensation for services
rendered by Employee during Employee's employment under this Agreement, a base
salary at a rate of $135,000 per annum (the "Base Salary"). Employer shall pay
the Base Salary in accordance with Employer's established payroll procedures.
(b) BONUS. In addition to the Base Salary, Employee
shall be eligible to receive annual bonus compensation (the "Bonus") in an
amount to be set by the Compensation Committee of Employer's Board of Directors,
at the committee's sole and exclusive discretion.
(c) REIMBURSEMENT. Employer shall reimburse Employee for
all travel and entertainment expenses and other ordinary and necessary business
expenses incurred by Employee in connection with the business of Employer and
Employee's duties under this Agreement. The term "business expenses" shall not
include any item not at least partially deductible by Employer for federal
income tax purposes. Reimbursements shall be made by Employer in accordance with
Employer's normal expense policies and procedures.
(d) FRINGE BENEFITS. Employee shall be entitled to
participate in any group insurance, pension, retirement, vacation, expense
reimbursement, and other plans, programs, and benefits approved by the Board of
Directors and made available from time to time to executive employees of
Employer generally during the term of Employee's employment hereunder. The
foregoing shall not obligate Employer to adopt or maintain any particular plan,
program, or benefit.
4. TERM OF EMPLOYMENT.
(a) EMPLOYMENT TERM. The term of Employee's employment
hereunder shall commence on the date hereof and shall continue until December
31, 2004. The term of Employee's employment hereunder shall automatically renew
for successive one-year terms, unless and until terminated by either party
giving written notice to the other not less than 30 days prior to the end of the
then-current term or as otherwise set forth in Section 4(b).
(b) TERMINATION UNDER CERTAIN CIRCUMSTANCES. Notwithstanding
anything to the contrary herein contained:
(i) DEATH. Employee's employment and this Agreement
shall be automatically terminated, without notice, effective upon the date of
Employee's death.
(ii) DISABILITY. If Employee shall fail to perform any of
Employee's essential job duties under this Agreement as the result of illness or
other incapacity, with or without reasonable accommodation, for a period of more
than 12 consecutive weeks, or for more than 12 weeks within any 12-month period,
as determined by Employer for purposes of compliance with the Family and Medical
Leave Act, Employer may, at its option, and upon notice to Employee, terminate
Employee's employment and this Agreement effective on the date of that notice.
(iii) UNILATERAL DECISION OF EMPLOYER. Employer may, at
its option, upon notice to Employee, terminate Employee's employment and this
Agreement effective on the date of that notice. A material reduction in
Employee's responsibilities, as such responsibilities are described in Section 1
of this Agreement, by Employer shall constitute a
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termination under this Section 4(b)(iii).
(iv) UNILATERAL DECISION BY EMPLOYEE. Employee may, at
his option and upon notice to Employer, terminate Employee's employment and this
Agreement effective on the date of that notice.
(v) TERMINATION FOR CAUSE. Employer may terminate
Employee's employment under this Agreement at any time, effective upon written
notice to Employee, if the termination of Employee's employment is for Cause.
For purposes of this Section 4(b)(v), for Cause shall mean: (A) the failure or
refusal of Employee to perform the duties or render the services reasonably
assigned to him from time to time by the Board of Directors; (B) gross
negligence or willful misconduct by Employee in the performance of his duties as
an employee of Employer; (C) the charging or indictment of Employee in
connection with a felony; (D) the association, directly or indirectly, of
Employee, for his profit or financial benefit, with any person, firm,
partnership, association, entity or corporation that competes, in any material
way, with Employer; (E) the disclosing or using of any material "Confidential
Information" (as hereinafter defined) of Employer at any time by Employee,
except as required in connection with his duties to Employer; (F) the breach by
Employee of his fiduciary duty or duty of trust to Employer, including the
commission by Employee of an act of fraud or embezzlement against Employer; (G)
chronic absenteeism; (H) substance abuse; or (I) any other material breach by
Employee of any of the terms or provisions of this Agreement, which other
material breach is not cured within ten (10) business days of notice by
Employer.
(vi) CHANGE OF CONTROL. In the event of a Change of
Control (as defined below), Employer or Employee may, at their respective
option, upon notice to the other, terminate Employee's employment by providing
the other party with 30 days' written notice after the effective date of the
Change of Control. For the purposes of this Agreement, a "Change in Control"
shall mean a change in control of Employer of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended, as in effect
on the date of this Agreement, or if Item 6(e) is no longer in effect, any
regulations issued by the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, which serve similar purposes;
provided further that, without limitation, a Change in Control shall be deemed
to have occurred if and when:
(A) TURNOVER OF BOARD. The following individuals no
longer constitute a majority of the members of the Board of Directors of
Employer: (1) the individuals who, as of the date of this Agreement, constitute
the Board of Directors of Employer (the "Current Directors"); (2) the
individuals who thereafter are elected to the Board of Directors of Employer and
whose election, or nomination for election, to the Board of Directors of
Employer was approved by a vote of at least a majority of the Current Directors
then still in office (such directors becoming "Additional Directors" immediately
following their election); and (3) the individuals who are elected to the Board
of Directors of Employer and whose election, or nomination for election, to the
Board of Directors of Employer was approved by a vote of at least a majority of
the Current Directors and Additional Directors then still in office (such
directors also becoming "Additional Directors" immediately following their
election);
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(B) TENDER OFFER. A tender offer or exchange offer
is made whereby the effect of such offer is to take over and control Employer,
and such offer is consummated for the equity securities of Employer representing
thirty percent (30%) or more of the combined voting power of Employer's then
outstanding voting securities;
(C) MERGER OR CONSOLIDATION. The stockholders of
Employer shall approve a merger, consolidation, recapitalization, or
reorganization of Employer, a reverse stock split of outstanding voting
securities, or consummation of any such transaction if stockholder approval is
not obtained, other than any such transaction that would result in at least
seventy-five percent (75%) of the total voting power represented by the voting
securities of the surviving entity outstanding immediately after such
transaction being beneficially owned by the holders of outstanding voting
securities of Employer immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such continuing holders
not substantially altered in the transaction; or
(D) LIQUIDATION OR SALE OF ASSETS. The
stockholders of Employer shall approve a plan of complete liquidation of
Employer or an agreement for the sale or disposition by Employer of all or a
substantial portion of Employer's assets to another person or entity, which is
not a wholly owned subsidiary of Employer (i.e., fifty percent (50%) or more of
the total assets of Employer).
(c) RESULT OF TERMINATION. In the event of the
termination of Employee's employment pursuant to Sections 4(b)(i), (iv), or (v)
above, Employee shall receive no further compensation under this Agreement and
all of Employee's unvested options shall be cancelled. In the event of the
termination of Employee's employment pursuant to Section 4(b)(ii), (iii), or
(vi) above,
(i) Employee shall continue to receive his Base Salary
during the Severance Period. For purposes of this Agreement, the "Severance
Period" shall be a period commencing on the date of termination and ending on
the date that is nine months following the date of termination; and
(ii) Employee's vested options as of the date of
termination shall remain outstanding through the 120-day period following the
then-current term of this Agreement. All of Employee's unvested options as of
the date of termination shall be cancelled.
5. COMPETITION AND CONFIDENTIAL INFORMATION.
(a) INTERESTS TO BE PROTECTED. For purposes of this
Section 5, the term "Employer" shall include Vodavi Technology, Inc. and any
entity that is a direct or indirect subsidiary of Vodavi Technology, Inc. during
the term of this Agreement. The parties acknowledge that Employee will perform
essential services for Employer during the term of Employee's employment with
Employer. Employee will be exposed to, have access to, and be required to work
with a considerable amount of Confidential Information (as defined below). The
parties also expressly recognize and acknowledge that the personnel of Employer
have been trained by and are valuable to Employer and that Employer will incur
substantial expense in
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recruiting and training personnel if it must hire new personnel or retrain
existing personnel to fill vacancies. The parties also expressly recognize that
it could seriously impair the goodwill and diminish the value of Employer's
business should Employee compete with Employer in any manner whatsoever. The
parties acknowledge that this covenant has an extended duration; however, they
agree that this covenant is reasonable, and it is necessary for the protection
of Employer, its stockholders, and employees. For these and other reasons, and
the fact that there are many other employment opportunities available to
Employee if his employment with Employer is terminated, the parties are in full
and complete agreement that the following restrictive covenants are fair and
reasonable and are entered into freely, voluntarily, and knowingly. Furthermore,
each party was given the opportunity to consult with independent legal counsel
before entering into this Agreement.
(b) NON-COMPETITION. During the term of Employee's employment
with Employer and for the period ending 12 months after the termination of
Employee's employment with Employer, or, in the alternative, in the event any
reviewing court finds 12 months to be overbroad or unenforceable, for a period
of nine months after the termination of Employee's employment with Employer, or,
in the alternative, in the event any reviewing court finds nine months to be
overbroad or unenforceable, for a period of six months after the termination of
Employee's employment with Employer, or, in the alternative, in the event any
reviewing court finds six months to be overbroad or unenforceable, for a period
of three months after the termination of Employee's employment with Employer,
regardless of the reason therefor, Employee shall not (whether directly or
indirectly, as owner, principal, agent, stockholder, director, officer, manager,
employee, partner, participant, or in any other capacity) engage in or become
financially interested in any competitive business conducted within the
Restricted Territory (as defined below). As used herein, the term "competitive
business" shall mean any business that designs, develops, markets, or supports
telephone systems, commercial grade telephones, voice processing systems
(including, but not limited to, automated attendant, voice mail, or fax mail),
computer-telephony integration products, and related computer software products;
and the term "Restricted Territory" shall mean any area in which Employer
conducts its business during Employee's employment hereunder.
(c) NON-SOLICITATION OF EMPLOYEES. During the term of Employee's
employment and for a period of 12 months after the termination of Employee's
employment with Employer, or, in the alternative, in the event any reviewing
court finds 12 months to be overbroad or unenforceable, for a period of nine
months after the termination of Employee's employment with Employer, or, in the
alternative, in the event any reviewing court finds nine months to be overbroad
or unenforceable, for a period of six months after the termination of Employee's
employment with Employer, or, in the alternative, in the event any reviewing
court finds six months to be overbroad or unenforceable, for a period of three
months after the termination of Employee's employment with Employer, regardless
of the reason therefor, Employee shall not directly or indirectly, for himself,
or on behalf of, or in conjunction with, any other person, company, partnership,
corporation, or other entity, seek to hire or hire any of Employer's personnel
or employees for the purpose of having such employee engage in services that are
the same, similar, or related to the services that such employee provided for
Employer.
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(d) CONFIDENTIAL INFORMATION. Employee shall maintain in strict
secrecy all confidential or trade secret information, whether patentable or not,
relating to the business of Employer (the "Confidential Information") obtained
by Employee in the course of Employee's employment, and Employee shall not,
unless first authorized in writing by Employer, disclose to, or use for
Employee's benefit or for the benefit of any person, firm, or entity at any time
either during or subsequent to the term of Employee's employment, any
Confidential Information, except as required in the performance of Employee's
duties on behalf of Employer. For purposes hereof, Confidential Information
shall include without limitation any technical plans and drawings or other
reproductions or materials of any kind; any financial information with respect
to Employer or its business; any trade secrets, knowledge, or information with
respect to products, processes, inventions, formulae, software, source codes,
object codes, algorithms, and services provided; any operating procedures,
techniques, or know-how; any business methods or forms; any names, addresses, or
data on suppliers or customers; and any business policies or other information
relating to or dealing with the purchasing, sales, advertising, promotional, or
distribution policies or practices of Employer.
(e) RETURN OF BOOKS AND PAPERS. Upon the termination of
Employee's employment with Employer for any reason, Employee shall deliver
promptly to Employer all samples or demonstration models, catalogues, manuals,
memoranda, drawings, software, source or object code, formulae, and
specifications, and operating procedures; all cost, pricing, and other financial
data; all supplier and customer information; all other written or printed
materials that are the property of Employer (and any copies of them); and all
other materials which may contain Confidential Information relating to the
business of Employer, which Employee may then have in his possession whether
prepared by Employee or not.
(f) DISCLOSURE OF INFORMATION. Employee shall disclose promptly
to Employer, or its nominee, any and all ideas, designs, processes, and
improvements of any kind relating to the business of Employer, whether
patentable or not, conceived or made by Employee, either alone or jointly with
others, during working hours or otherwise, during the entire period of
Employee's employment with Employer, or within six months thereafter.
(g) ASSIGNMENT. Employee hereby assigns to Employer or its
nominee the entire right, title, and interest in and to all inventions,
discoveries, and improvements, whether patentable or not, that Employee may
conceive or make during Employee's employment with Employer, or within six
months thereafter, and which relate to the business of Employer. Whenever
requested to do so by Employer, whether during the period of Employee's
employment or thereafter, Employee shall execute any and all applications,
assignments, and other instruments that Employer shall deem necessary or
appropriate to apply for, obtain, or maintain Letters Patent of the United
States or of any foreign country, or to protect otherwise the interest of
Employer therein.
(h) EQUITABLE RELIEF. In the event a violation of any of the
restrictions contained in this Section 5 is established, Employer shall be
entitled to preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits, and other benefits arising
from such violation, which right shall be cumulative and in addition to any
other rights or remedies to which Employer may be entitled. In the event of a
violation of any provision of Sections 5(b), 5(c), 5(f), or 5(g) of this
Agreement, the period for
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which those provisions would remain in effect shall be extended for a period of
time equal to that period beginning when such violation commenced and ending
when the activities constituting such violation shall have been finally
terminated in good faith.
(i) RESTRICTIONS SEPARABLE. If the scope of any provision of this
Section 5 is found by a Court to be too broad to permit enforcement to its full
extent, then such provision shall be enforced to the maximum extent permitted by
law. The parties agree that the scope of any provision of this Section 5 may be
modified by a judge in any proceeding to enforce this Agreement, so that such
provision can be enforced to the maximum extent permitted by law. Each and every
restriction set forth in this Section 5 is independent and severable from the
others, and no such restriction shall be rendered unenforceable by virtue of the
fact that, for any reason, any other or others of them may be unenforceable in
whole or in part.
(j) SURVIVAL. Employer and Employee acknowledge and agree that
the obligations and rights set forth in this Section 5 shall survive the
termination of this Agreement and Employee's employment by either Employer or
Employee under Section 4 of this Agreement.
6. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands, and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made, and received (i) if
personally delivered, on the date of delivery, (ii) if by facsimile
transmission, 24 hours after transmitter's confirmation of the receipt of such
transmission, (iii) if mailed, three days after deposit in the United States
mail, registered or certified, return receipt requested, postage prepaid and
addressed as provided below, or (iv) if by a courier delivery service providing
overnight or "next-day" delivery, on the next business day after deposit with
such service addressed as follows:
(1) If to Employer:
Vodavi Technology, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Fax: (000) 000-0000
with a copy given in the manner
prescribed above, to:
Xxxxxxxxx Xxxxxxx, LLP
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
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(2) If to Employee:
Xxxxxx X. Xxxxxxx
0000 X. 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
email: xxxxxxxx@xxxxxx.xxx
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
(b) INDULGENCES; WAIVERS. Neither any failure nor any delay on
the part of either party to exercise any right, remedy, power, or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power, or privilege preclude any other or
further exercise of the same or of any other right, remedy, power, or privilege,
nor shall any waiver of any right, remedy, power, or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power, or
privilege with respect to any other occurrence. No waiver shall be binding
unless executed in writing by the party making the waiver.
(c) CONTROLLING LAW. This Agreement and all questions relating
to its validity, interpretation, performance, and enforcement shall be governed
by and construed in accordance with the laws of the state of Arizona,
notwithstanding any Arizona or other conflict-of-interest provisions to the
contrary.
(d) BINDING NATURE OF AGREEMENT; SUCCESSORS AND ASSIGNS. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors, and assigns;
provided that because the obligations of Employee hereunder involve the
performance of personal services, such obligations shall not be delegated by
Employee. For purposes of this Agreement, successors and assigns shall include,
but not be limited to, any individual, corporation, trust, partnership, or other
entity that acquires a majority of the stock or assets of Employer by sale,
merger, consolidation, liquidation, or other form of transfer. Employer will
require any successor (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of Employer to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that Employer would be required to
perform it if no such succession had taken place.
(e) EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.
(f) PROVISIONS SEPARABLE. The provisions of this Agreement are
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independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or
in part.
(g) ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and understandings, inducements and conditions, express or implied, oral or
written, except as herein contained. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing.
(h) PARAGRAPH HEADINGS. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(i) NUMBER OF DAYS. In computing the number of days for purposes
of this Agreement, all days shall be counted, including Saturdays, Sundays, and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday, or holiday, then the final day shall be deemed to be the next
day that is not a Saturday, Sunday, or holiday.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
VODAVI TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer and President
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
VODAVI DIRECT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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