EMPLOYMENT AGREEMENT
THIS Employment Agreement ("Agreement") is made and entered into this 23 day of
July, 1997, by and between Xxx X. Xxxxxx ("Employee") and Brite Voice Systems,
Inc. ("Brite").
WHEREAS, Brite has elected to relocate Employee to its new headquarters
facility in Heathrow, Florida; and
WHEREAS, Brite wishes to provide certain inducements to Employee to
relocate to Brite's Heathrow, Florida area headquarters;
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in consideration of the covenants
and obligations herein contained, the parties hereto agree as follows:
1. EMPLOYMENT AND DUTIES. From and after August 1, 1997,
("Commencement Date") Brite shall employ Employee as Senior Vice President &
General Manager of Network Services. Employee shall report to Brite's President
or as the President may otherwise direct. Employee shall use his best and most
diligent efforts on a full time, exclusive basis to promote the best interests
of Brite.
2. COMPENSATION AND BENEFITS.
A. SALARY. Employee's initial annual salary shall be $165,000 ("Base
Salary") payable pursuant to Brite's customary payroll policies in force at
the time of payment.
B. BONUS. For each year of employment commencing with calendar year
1997, Employee will be entitled to participate in an incentive compensation
program which shall be based on the performance of Employee measured
against performance targets established for Employee. For calendar year
1997, such bonus program shall provide for aggregate bonus compensation of
(See attachment) if targeted performance is attained, and additional bonus
compensation, not to exceed an additional (See attachment) upon the
attainment of performance levels above the target performance goal. For
years subsequent to calendar year 1997, Employee will be entitled to
participate in such incentive compensation programs as shall be established
for other employees of Brite holding positions of similar responsibility.
C. BENEFITS. Employee will be entitled to participate in Brite's standard
benefits provided to other employees having similar responsibilities with
Brite, as established and/or modified by Brite from time to time,
including, but not limited to, paid vacation time, life insurance, health
insurance and dental insurance.
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D. BUSINESS EXPENSES. Pursuant to Brite's customary policies in force at
the time of payment, employee shall be promptly reimbursed against
presentation of vouchers or receipts, for all authorized expenses properly
incurred by him in the performance of his duties hereunder.
3. TERM AND TERMINATION.
A. TERM. Employee's employment with Brite pursuant to this
Agreement shall begin on the Commencement Date and shall extend to the
first anniversary of the date on which Employee has assumed his
responsibilities at Brite's headquarters facility in Heathrow, Florida (the
"Employment Period"), subject to earlier termination as provided elsewhere
herein.
B. TERMINATION FOR CAUSE. If Employee's employment is terminated during
the Employment Period and such termination is a termination for Cause,
Employee shall be entitled to payment of his Base Salary to the date of
termination, accrued bonus (if any) and benefits existing at the time of
termination of his employment. Termination for Cause means one or more of:
(I) voluntary termination of employment by Employee for any reason; (ii)
the death of Employee; (iii) Employee having been unable to render services
required of him hereunder for a consecutive period of six months in any
twelve month period because of a serious and continuing health impairment,
which impairment will most likely result in Employee's continued inability
to render the services required of him hereunder; (iv) Employee's
misappropriation of corporate funds; (v) Employee's conviction of a felony;
(vi) Employee's conviction of any crime involving theft, dishonesty, or
moral turpitude; (vii) Employee's failure to devote substantially his full
business time to Brite as provided in Section 1 hereof; (viii)
falsification of any material representation made by Employee to Brite; or
(ix) the commission by Employee of a material breach of the terms of this
Agreement.
C. TERMINATION OTHER THAN FOR CAUSE. If Employee's employment with Brite
is terminated and such termination is not a Termination for Cause, Employee
shall be entitled to (I) the greater of the aggregate amount of Base Salary
and bonus due to Employee through the end of the Employment Period or (ii)
severance pay according to Brite's severance policy then in effect, plus
that portion of Employee's Base Salary, bonus and benefits that had accrued
as of the termination date. The foregoing payments and benefits shall
constitute full satisfaction of any and all payments or benefits that might
otherwise be due Employee hereunder.
4. RELOCATION EXPENSES. Employee shall receive relocation expenses
reimbursements in accordance with the relocation plan summary previously
provided to Employee. All unearned payments of relocation expenses made by
Brite, either directly to third party providers or reimbursements made to the
Employee, shall be reimbursed to Brite by Employee in the event that Employee's
employment is terminated prior to the end of the Employment Period, and such
termination is a voluntary termination of employment by the Employee.
Relocation expenses will be deemed earned by Employee according to the following
schedule:
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Employment For Not Less Than Percent Earned
---------------------------- --------------
6 months 50%
9 months 75%
12 months 100%
With respect to any calculation of the number of months of Employee's employment
for purposes of this Section 4, the first day of Employee's employment at the
Heathrow headquarters shall be the beginning date and the corresponding day in
each succeeding month shall constitute one month of employment.
If Employee is required to make reimbursement to Brite as provided herein, any
such amount may be deducted by Brite from the last paycheck or any other amounts
owed by Brite upon Employee's Termination. To the extent such amounts are
insufficient, Employee agrees to pay to Brite any remaining unpaid relocation
expenses required to be reimbursed hereunder.
5. NOTICES. Any notice permitted or required to be given under this
Agreement shall be sufficient if in writing and delivered personally or by
registered mail return receipt requested, if to Employee, at his residence
address as reflected in Brite's records, and if to Brite, to the attention of
President, Brite Voice Systems, Inc., 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxx 00000. A party may change its address for receipt of notices
by complying with this section.
6. NON-DISCLOSURE OF TERMS. The terms of this Agreement are to be kept
confidential by Employee and shall not be disclosed by Employee to any third
party without the express written consent of Brite. Any breach of the preceding
sentence shall terminate Employee's right, if any, to receive payment under
Section 3(C)(i).
7. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties in respect of its subject matter and supersedes all prior
agreements and understandings between the parties with respect to such subject
matter; provided, however, that the terms of any Confidentiality and Non-compete
Agreement heretofore entered into between the Employee and Brite shall remain in
effect unless expressly amended by the terms of a written agreement between the
Employee and Brite.
8. AMENDMENT: WAIVER. This Agreement may not be amended, supplemented,
canceled or discharged except by written instrument executed by the party
affected thereby. No failure to exercise, and no delay in exercising, any
right, power or privilege hereunder shall operate as a waiver thereof. No
waiver of any provision of this agreement shall be deemed to be a waiver of any
preceding or succeeding breach of the same or any other provision.
9. BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Agreement shall bind an inure to the benefit of successor of Brite by
reorganization, merger or consolidation or any assignee of all or substantially
all of Brite's business and properties. Employee's rights or
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obligations under this agreement may not be assigned by Employee, except that
upon Employee's death, all right to compensation hereunder shall pass to
Employee's executor or administrator.
10. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
11. GOVERNING LAW; INTERPRETATION. This Agreement shall be construed
in accordance with, and governed for all purposes by, the laws and public policy
of the State of Florida applicable to contracts executed and to be wholly
performed within such State.
12. FURTHER ASSURANCES. Each of the parties agrees to execute,
acknowledge, deliver and perform, and/or cause to be executed, acknowledged,
delivered and performed, at any time and/or from time to time, as the case may
be, all such further acts, documents, transfers, conveyances, and/or assurances
as may be necessary and/or proper to carry out the provisions and/or intent of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
effective the date first above written.
BRITE VOICE SYSTEMS, INC.
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
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Title: CEO
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EMPLOYEE
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
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