[INTERVOICE COMPANY LETTERHEAD]
June 25, 2003
Xx. Xxx-Xxx X. Xxxxxx
0000 Xxxxxxxx Xx.
Xxxxxx, XX 00000
Dear Xxx:
This letter confirms the discussions held with you regarding your
separation from employment with Intervoice, Inc. ("Intervoice"). The terms set
forth below constitute Intervoice's offer and, by your signature, your
acceptance of this proposed Separation Agreement (the "Agreement"). On behalf of
Intervoice, I want to express my appreciation for your past service and
contributions, and wish you success in your future endeavors.
1. Resignation from Employment and All Offices. You have offered your
resignation from Intervoice's employment to pursue other opportunities,
and Intervoice hereby accepts your resignation on the terms set forth
herein. On or before the Separation Date, as such term is defined in
Paragraph 4 below, you will submit your resignation from all corporate
offices, to be effective as of the Separation Date.
2. Salary and Benefits. In accordance with Intervoice's existing
policies or at its discretion, you have received or will receive
the following payments and benefits pursuant to your employment
with Intervoice and your participation in Intervoice's benefit
plans:
(a) Payment of your regular base salary at the current rate through the
Separation Date;
(b) Payment of any accrued and unused vacation leave benefits on your
current schedule of benefits as of the Separation Date;
(c) Present or future payment or other entitlement, in accordance with
the terms of the applicable plan or other benefit, of any benefits to
which you have vested entitlement under the terms of employee benefit
plans established by Intervoice; and
(d) At your discretion, exercise of any stock options you may hold, to
the extent such options are exercisable (see Paragraph 3(c) below for
provisions relating to the amendment of your stock option agreements
subject to your acceptance of this Agreement).
The amounts paid in accordance with subparagraphs (a) and (b) of this
paragraph are gross amounts, subject to lawful deductions, including any
deductions you have previously authorized.
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Page 2
Unless you choose to accept the Special Separation Compensation described in
Paragraph 3 below, your regular paid group health insurance benefits will
continue only through the last day of the month in which you cease to be an
Intervoice employee. By law, you are entitled at your option to continue your
group health insurance coverage for a period of time thereafter at your own
expense. Please complete a COBRA election form, which will be furnished to you,
and return it to Xxxxx Xxxxxx in Intervoice's Human Resources Department at your
earliest convenience, in accordance with the terms of the election form, if you
wish to continue such insurance coverage. (See Paragraph 3 below for special
provisions relating to continuation of your coverage.)
Intervoice will settle all authorized reimbursable business expenses, if any,
based on your submission of appropriate expense reports along with the required
receipts and documenting information. Final expense reports for any remaining
outstanding reimbursable expenses you have incurred must be submitted within 5
days after the Separation Date, except for any charges not billed to you by that
time, in which case the expense must be promptly submitted upon your receipt of
the billing.
3. Special Separation Compensation. Contingent upon your acceptance of the terms
of this Agreement and in consideration of your undertakings set forth herein,
Intervoice offers you, in addition to the pay and benefits you will receive
pursuant to Paragraph 2 and in lieu of benefits under any other Intervoice
severance pay program or other agreement, the following Special Separation
Compensation:
(a) Payment of the sum of $511,544.00, equivalent to two times your
current annualized base salary. This sum is a gross amount, subject to
lawful deductions, and will be paid in lump sum on the first business
day after the Ratification Effective Date of this Agreement as defined
in Paragraph 23.
(b) Payment for a period of 18 months following the month in which the
Separation Date occurs for Intervoice's group health insurance coverage
on you and any covered dependents as in effect on the Separation Date,
to the same extent as if you had continued as an employee; provided,
however, that Intervoice's obligation in this regard shall terminate at
such earlier date as you and your family members who are then under
Intervoice's coverage have become eligible and qualified for comparable
coverage (including any preexisting-condition requirements) under
another employer's plan. To receive this coverage, you must make the
COBRA election referred to in Paragraph 2 above, and by your agreement
hereto you authorize deduction from the payment described in
subparagraph (a) of this paragraph for your share, if any, of the
premiums.
(c) Amendment of your stock options as follows: Effective upon the date
of your initial execution of this Agreement as shown by the date of
your signature hereto on page 13, all stock option agreements between
you and Intervoice pursuant to which Intervoice has heretofore granted
to you options for the purchase of the Common Stock, no par value, of
Intervoice ("Stock Options") shall be deemed to be amended so that (i)
all Stock Options that are not yet
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Xxxx 25, 2003
Page 3
exercisable (except for that portion of the Stock Options granted under
the Intervoice 1999 Stock Option Plan with an exercise price of $1.015
which become exercisable on July 18, 2003) shall become immediately
exercisable, and (ii) all Stock Options granted to you under
Intervoice's 1998 Stock Option Plan and 1999 Stock Option Plan shall
remain exercisable for 12 months from the Separation Date; provided,
however, that this subparagraph 3(c) and the deemed amendments to the
stock option agreements set forth above shall be null and void and of
no effect whatsoever in the event you take, or fail to take, as the
case may be, any of the following actions: (a) you revoke your
acceptance of this Agreement prior to the Effective Date, (b) you fail
to timely sign the Renewal and Ratification pursuant to Paragraph 23
hereof, or (c) you revoke your Renewal and Ratification of this
Agreement prior to the Ratification Effective Date (any or all of such
acts hereinafter the "Revocation or Failure Events"). Provided further,
if any of the Revocation or Failure Events occurs and prior to the
occurrence thereof you have exercised any Stock Options the
exercisability of which had been accelerated by operation of this
subparagraph 3(c), then with respect to such exercised Stock Options
you shall forthwith pay to Intervoice in cash the difference between
the exercise price of each such option and the closing price of shares
of Intervoice common stock as quoted on NASDAQ on the day each such
option was exercised.
(d) Transfer to you, as of the Separation Date, of ownership of the
following personal property: (i) Intervoice's laptop computer presently
assigned to you; (ii) Intervoice's desktop computer presently in use at
your home; Intervoice's printer also presently in use at your home; and
Intervoice's cellular telephone (together with chargers and ancillary
equipment), presently assigned to you and such right to the presently
assigned telephone number as may exist under Intervoice's existing
contract with the responsible carrier, subject to your assumption of
financial responsibility for the cell phone account as of first day
following the Separation Date. This Agreement shall suffice as a bill
of sale with respect to all such items of personal property.
(e) Provision of Executive Package of career transition services
through a qualified service firm selected by Intervoice. These services
are available at your option, and can be initiated by contacting Xxx
Xxxxx at 000-000-0000. In the event you do not wish to utilize these
career transition services, you may, alternatively, elect within six
months of the date of your initial execution of this Agreement to
receive the equivalent value of the services, which is $7,500.00, in
cash. A cash payment is subject to lawful deductions. Your election to
receive a cash payment must be communicated in writing to Xxx Xxxxx at
the address shown on the letterhead.
(f) Reimbursement of reasonable legal fees and expenses incurred by you
in connection with the review and negotiation of this Agreement prior
to its execution.
4. Temporary Continuation of Employment and Corporate Officer Responsibilities.
Your last date of employment (the "Separation Date") shall be the date which is
30 days
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after your initial execution of this Agreement. Until the close of business on
the Separation Date, you will continue diligently and faithfully to perform your
present duties as Chief Financial Officer and Secretary and to carry on all
normal activities of such offices.
5. Employment Agreement Replaced by this Agreement; Preservation of Covenant Not
to Compete and Confidentiality Provisions. Except as otherwise provided herein,
that certain employment agreement effective September 1, 1998, as amended by its
First Amendment effective July 1, 2000, and Second Amendment effective March 1,
2001 (together with any and all other amendments thereto, collectively the
"Employment Agreement"), between you and Intervoice, is replaced in its entirety
by this Agreement as of the Effective Date hereof; and the terms of this
Agreement shall supersede all provisions of the Employment Agreement. Provided,
however, that (i) Paragraph 6 (Covenant Not to Compete) (except for subparagraph
6(b), which is hereby amended and restated in its entirety as is set forth in
Schedule 1 hereto), and (ii) Paragraph 27 (Assignment, Protection and
Confidentiality of Proprietary Information) of the original employment agreement
effective September 1, 1998, shall continue in full force and effect, and
nothing herein except as provided in this Paragraph 5 shall act to cancel,
change, or supersede your continuing obligations under such preserved
provisions. You and Intervoice acknowledge your mutual intention that the terms
of this Agreement alone, and not the Employment Agreement, shall define your
compensation for the remainder of your employment and upon termination of your
employment.
6. Continuation of Obligations Under Employee Agreement on Ideas, Inventions and
Confidential Information. Nothing herein shall act to cancel, change, or
supersede your continuing obligations as specified under any of the terms of the
Employee Agreement on Ideas, Inventions and Confidential Information which you
executed on August 26, 1992. The terms of such Employee Agreement on Ideas,
Inventions and Confidential Information shall be deemed to be incorporated
herein by reference.
7. Incorporation of Preserved Provisions by Reference. In the construction of
this Agreement, to the extent necessary to allow a proper interpretation of and
to give due regard to provisions preserved under the terms of Paragraphs 5 and 6
hereof, the applicable terms of Paragraphs 6 and 27 of the Employment Agreement
and the entirety of the Employee Agreement on Ideas, Inventions and Confidential
Information are incorporated herein by reference.
8. Validity of Covenant Not to Compete and Confidentiality Provisions. You
acknowledge and agree that the restrictions contained in Paragraphs 6 and 27 of
the Employment Agreement, and the confidentiality provisions of the Employee
Agreement on Ideas, Inventions and Confidential Information, are ancillary to
otherwise enforceable agreements; that Intervoice's promises and undertakings
set forth in the Employment Agreement and the Employee Agreement on Ideas,
Inventions and Confidential Information, your position and responsibilities with
Intervoice, and Intervoice's granting to you ownership in Intervoice in the form
of Intervoice stock, gave rise to Intervoice's interest in restricting your
post-employment activities; that such restrictions were and are designed to
enforce your promises and undertakings set forth in Paragraphs 6 and
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Xxxx 25, 2003
Page 5
27 of the Employment Agreement and the confidentiality provisions of the
Employee Agreement on Ideas, Inventions and Confidential Information and your
common-law obligations and duties owed to Intervoice; that the restrictions are
reasonable and necessary, are valid and enforceable under Texas law, and do not
impose a greater restraint than necessary to protect Intervoice's goodwill,
confidential information, and other legitimate business interests; and that you
will immediately notify Intervoice in writing, through its Executive Vice
President and General Counsel, should you believe or be advised that the
restrictions are not, or likely are not, valid or enforceable under Texas law
(the "Enforceability Notification"). Intervoice agrees that your conduct in
providing the Enforceability Notification under this Paragraph shall not
constitute a waiver of any attorney-client privilege between you and your
attorney(s).
9. Compelled Disclosure of Confidential Information. In the event you believe
that you are compelled by law or valid legal process to disclose any
confidential information within the purview of Paragraph 27 of the Employment
Agreement or any provision of the Employee Agreement on Ideas, Inventions and
Confidential Information, you will notify Intervoice in writing, through its
Executive Vice President and General Counsel, sufficiently in advance of any
such disclosure to allow Intervoice the opportunity to defend, limit, or
otherwise protect its interests against such disclosure.
10. Return of Property. You are required, unless otherwise agreed to in writing,
to return to Intervoice any and all items of its property, including without
limitation all records and documentation regarding Intervoice's financial,
accounting, and corporate transactions; keys and access cards or devices; any
computers and their peripheral equipment and cell phones and their ancillary
equipment (except for such items referred to in Paragraph 3(d) herein);
calculators and other equipment; credit cards; forms; files, manuals, and
correspondence; business records; personnel data, lists of employees, and salary
and benefits information pertaining to other employees; customer lists and
files; lists of suppliers and vendors; price lists, contracts, and contract
information; marketing plans, brochures, and catalogs; training materials;
product samples; software, computer tapes and diskettes or other portable media,
computer-readable files and data stored on any hard drive or other installed
device, and data processing reports; and any and all other documents or property
which you have had possession of or control over during the course of your
employment with Intervoice. By your signature below, you represent that you will
comply with this requirement.
11. Mutual Releases.
(a) GENERAL RELEASE OF INTERVOICE AND RELATED PARTIES. IN CONSIDERATION
OF THE MUTUAL PROMISES AND UNDERTAKINGS HEREIN AND THE SPECIAL
SEPARATION COMPENSATION AS DESCRIBED IN PARAGRAPH 3 ABOVE, YOU AND YOUR
FAMILY MEMBERS, HEIRS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY THE
"XXXXXX RELEASING PARTIES") HEREBY RELEASE, ACQUIT, AND FOREVER WAIVE
AND DISCHARGE ANY AND ALL CLAIMS AND DEMANDS OF WHATEVER KIND OR
CHARACTER, WHETHER VICARIOUS, DERIVATIVE, OR DIRECT THAT YOU OR THEY,
INDIVIDUALLY, COLLECTIVELY, OR OTHERWISE, MAY HAVE OR ASSERT AGAINST:
(I) INTERVOICE; (II) ANY DIRECT OR INDIRECT SUBSIDIARY OR OTHER
AFFILIATED ENTITY OF INTERVOICE; OR (III)
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Xxxx 25, 2003
Page 6
ANY OFFICER, DIRECTOR, FIDUCIARY, AGENT, EMPLOYEE, REPRESENTATIVE,
INSURER, ATTORNEY, OR ANY SUCCESSORS AND ASSIGNS OF THE PERSONS OR
ENTITIES JUST NAMED (COLLECTIVELY THE "INTERVOICE RELEASED PARTIES").
THIS GENERAL RELEASE INCLUDES BUT IS NOT LIMITED TO ANY CLAIM OR DEMAND
BASED ON ANY FEDERAL, STATE, OR LOCAL STATUTORY OR COMMON LAW OR
CONSTITUTIONAL PROVISION THAT APPLIES OR IS ASSERTED TO APPLY, DIRECTLY
OR INDIRECTLY, TO THE FORMATION, CONTINUATION, OR TERMINATION OF YOUR
EMPLOYMENT RELATIONSHIP WITH INTERVOICE. THUS, YOU AND THE OTHER XXXXXX
RELEASING PARTIES AGREE TO WAIVE TO THE MAXIMUM EXTENT PERMITTED BY LAW
ANY CLAIMS OR DEMANDS AGAINST INTERVOICE OR ANY OF THE OTHER INTERVOICE
RELEASED PARTIES SUCH AS FOR WRONGFUL DISCHARGE; UNLAWFUL EMPLOYMENT
DISCRIMINATION ON THE BASIS OF AGE OR ANY OTHER FORM OF UNLAWFUL
EMPLOYMENT DISCRIMINATION; RETALIATION; BREACH OF CONTRACT (EXPRESS OR
IMPLIED); BREACH OF ANY ALLEGED DUTY OF GOOD FAITH AND FAIR DEALING;
VIOLATION OF THE PUBLIC POLICY OF THE UNITED STATES, THE STATE OF
TEXAS, OR ANY OTHER STATE; INTENTIONAL OR NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS; TORTIOUS INTERFERENCE WITH CONTRACT; PROMISSORY
ESTOPPEL; DETRIMENTAL RELIANCE; DEFAMATION OF CHARACTER; DURESS;
NEGLIGENT MISREPRESENTATION; INTENTIONAL MISREPRESENTATION OR FRAUD;
INVASION OF PRIVACY; LOSS OF CONSORTIUM; ASSAULT; BATTERY; CONSPIRACY;
BAD FAITH; NEGLIGENT HIRING, RETENTION, OR SUPERVISION; ANY INTENTIONAL
OR NEGLIGENT ACT OF PERSONAL INJURY; ANY ALLEGED ACT OF HARASSMENT OR
INTIMIDATION; OR ANY OTHER INTENTIONAL OR NEGLIGENT TORT; OR ANY
ALLEGED VIOLATION OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967
(THE "ADEA"); TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED
("TITLE VII"); THE AMERICANS WITH DISABILITIES ACT OF 1990 (THE "ADA");
THE FAMILY AND MEDICAL LEAVE ACT OF 1993 (THE "FMLA"); THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974 ("ERISA"); THE FAIR LABOR
STANDARDS ACT (THE "FLSA"); THE FAIR CREDIT REPORTING ACT (THE "FCRA");
THE TEXAS COMMISSION ON HUMAN RIGHTS ACT (THE "TCHRA"); AND THE TEXAS
WAGE PAYMENT STATUTE (THE "TWPS").
THIS RELEASE INCLUDES ANY CLAIMS OR DEMANDS FOR DAMAGES (ACTUAL
OR PUNITIVE), BACK WAGES, FUTURE WAGES OR FRONT PAY, COMMISSIONS,
BONUSES, SEVERANCE BENEFITS, MEDICAL EXPENSES AND THE COSTS OF ANY
COUNSELING, REINSTATEMENT OR PRIORITY PLACEMENT, PROMOTION, VACATION
LEAVE BENEFITS, PAST AND FUTURE MEDICAL OR OTHER EMPLOYMENT BENEFITS
(EXCEPT AS TO WHICH THERE IS, AS OF THE SEPARATION DATE, EXISTING
CONTRACTUAL OR VESTED ENTITLEMENT) INCLUDING CONTRIBUTIONS TO ANY
EMPLOYEE BENEFIT PLANS, RETIREMENT BENEFITS (EXCEPT AS TO WHICH THERE
IS, AS OF THE SEPARATION DATE, VESTED ENTITLEMENT), RELOCATION
EXPENSES, COMPENSATORY DAMAGES, INJUNCTIVE RELIEF, LIQUIDATED DAMAGES,
PENALTIES, EQUITABLE RELIEF, ATTORNEY'S FEES, COSTS OF COURT,
DISBURSEMENTS, INTEREST, AND ANY AND ALL OTHER LOSS, EXPENSE, OR
DETRIMENT OF WHATEVER KIND OR CHARACTER RESULTING FROM, GROWING OUT OF,
CONNECTED WITH, OR RELATED IN ANY WAY TO THE FORMATION, CONTINUATION,
OR TERMINATION OF YOUR EMPLOYMENT RELATIONSHIP WITH INTERVOICE.
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Xxxx 25, 2003
Page 7
FURTHER, YOU FOREVER WAIVE ANY RIGHT TO MONETARY RECOVERY FROM
THE INTERVOICE RELEASED PARTIES, WHETHER SOUGHT DIRECTLY BY YOU OR IN
THE EVENT ANY ADMINISTRATIVE AGENCY OR OTHER PUBLIC AUTHORITY,
INDIVIDUAL, OR GROUP OF INDIVIDUALS SHOULD PURSUE ANY CLAIM ON YOUR
BEHALF; AND YOU WILL NOT REQUEST OR ACCEPT FROM THE INTERVOICE RELEASED
PARTIES, AS COMPENSATION OR DAMAGES RELATED TO YOUR EMPLOYMENT OR THE
TERMINATION OF YOUR EMPLOYMENT BY INTERVOICE, ANYTHING OF VALUE THAT IS
NOT PROVIDED FOR IN THIS AGREEMENT.
THIS GENERAL RELEASE DOES NOT APPLY TO ANY RIGHTS OR CLAIMS
THAT MAY ARISE AFTER THE DATE THIS AGREEMENT IS EXECUTED. AS PROVIDED
BY LAW, AFTER YOU HAVE SIGNED THIS AGREEMENT, AND SIMILARLY AFTER YOU
HAVE SIGNED THE RENEWAL AND RATIFICATION, YOU WILL STILL HAVE AN
ADDITIONAL SEVEN DAYS IN WHICH TO RECONSIDER AND REVOKE YOUR
ACCEPTANCE, IF YOU WISH.
(b) INTERVOICE'S GENERAL RELEASE OF YOU. IN CONSIDERATION OF THE MUTUAL
PROMISES AND UNDERTAKINGS HEREIN, INTERVOICE, ON BEHALF OF ITSELF AND
ITS DIRECT AND INDIRECT SUBSIDIARIES AND ANY OTHER AFFILIATED ENTITIES
(COLLECTIVELY THE "INTERVOICE RELEASING PARTIES"), HEREBY RELEASES,
ACQUITS, AND FOREVER WAIVES AND DISCHARGES ANY AND ALL CLAIMS AND
DEMANDS OF WHATEVER KIND OR CHARACTER, WHETHER VICARIOUS, DERIVATIVE,
OR DIRECT, THAT IT MAY HAVE OR ASSERT AGAINST YOU, YOUR FAMILY MEMBERS,
HEIRS, SUCCESSORS, ASSIGNS, OR ANY AGENT OR REPRESENTATIVE
(COLLECTIVELY THE "XXXXXX RELEASED PARTIES"). THIS GENERAL RELEASE
INCLUDES BUT IS NOT LIMITED TO ANY CLAIM OR DEMAND FOR DAMAGES, LOSS,
OR OTHER EXPENSE RESULTING FROM, GROWING OUT OF, CONNECTED WITH, OR
RELATED IN ANY WAY TO THE FORMATION, CONTINUATION, OR TERMINATION OF
YOUR EMPLOYMENT RELATIONSHIP WITH INTERVOICE. THIS GENERAL RELEASE DOES
NOT APPLY TO ANY RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE DATE THIS
AGREEMENT IS EXECUTED.
12. Confidentiality, Cooperation, Nonprosecution, and Other Commitments.
(a) Disclosure of Terms. You acknowledge and consent that the terms of
this Agreement shall be attached to the Form 1OQ for the quarter ended
May 31, 2003, that Intervoice will file with the Securities and
Exchange Commission, and that it will be discussed in a Form 8K Current
Report and in the proxy statement for Intervoice's 2003 Annual Meeting.
(b) Cooperation. You will cooperate fully and completely with
Intervoice or any of the other Intervoice Released Parties, at their
reasonable request, in all pending and future litigation,
investigations, arbitrations, and/or other fact-finding or adjudicative
proceedings, public or private, involving Intervoice or any of the
other Intervoice Released Parties. This obligation includes your
promptly meeting with counsel for Intervoice or the other Intervoice
Released Parties at reasonable times upon their request, and providing
testimony in court, before an arbitrator or other convening authority,
or upon deposition that is truthful, accurate, and complete, according
to information known to you. If you (i) appear
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Xxxx 25, 2003
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as a witness in any pending or future litigation, arbitration, or other
fact-finding or adjudicative proceeding at the request of Intervoice
or any of the other Intervoice Released Parties; or (ii) for any other
reason incur out-of-pocket expenses in connection with fulfillment of
your duties under this subparagraph 12(b) at the request of Intervoice
or any of the other Intervoice Released Parties, Intervoice agrees to
reimburse you, upon submission of substantiating documentation, for
necessary and reasonable travel, lodging, and food expenses incurred by
you as a result thereof.
(c) Nonprosecution. Except as requested by Intervoice, as permitted by
valid law or regulation that supersedes the terms of this Agreement, or
as compelled by law or judicial process, you will not assist, cooperate
with, or supply information of any kind to any individual or
private-party litigant or their agents or attorneys (i) in any
proceeding, investigation, or inquiry raising issues under the ADEA,
Title VII, the ADA, the FMLA, ERISA, the FLSA, the FCRA, the TCHRA, the
TWPS, or any other federal, state, or local law involving the
formation, continuation, or termination of your employment
relationship, or the employment of other persons, by Intervoice or any
of the other Intervoice Released Parties, or (ii) in any other
litigation against Intervoice or any of the other Intervoice Released
Parties.
(d) No Other Actions. Except as permitted by valid law that supersedes
the terms of this Agreement, you will not initiate any investigation,
inquiry, or any other action of any kind with respect to Intervoice's
facilities, employment practices, or sales or business operations,
relating to the termination of your employment as provided for in this
Agreement, or to the employment of any other person.
(e) Nondisparagement; Handling of Inquiries. You will not make to any
other parties any statement, oral or written, which directly or
indirectly impugns the quality or integrity of Intervoice's or any of
the other Intervoice Released Parties' business, accounting, or
employment practices, or any other disparaging or derogatory remarks
about Intervoice or any of the other Intervoice Released Parties, their
officers, directors, stockholders, managerial personnel, or other
employees; and Intervoice shall instruct its officers not to make any
disparaging or derogatory remarks about you. Nothing herein, however,
is intended to or shall act in any manner to prevent you or
Intervoice's officers from presenting testimony under oath, in any
legal proceeding, that is truthful and accurate. Except as further
provided hereinbelow, any direct inquiries to Intervoice from
potential employers will receive Intervoice's normal response, pursuant
to its current established policy, which provides for release solely of
the following information: verification of (i) name, (ii) last job
title held, and (iii) dates of service. If you have authorized
Intervoice to provide other information in specific instances,
Intervoice shall use in those instances the form of response,
containing such factual information as has been jointly determined and
agreed upon by you and Intervoice.
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Page 9
13. Agreement Not to Seek Reemployment. To prevent any future dispute regarding
further employment with Intervoice, you hereby agree that: (i) you will not ever
apply for or otherwise seek employment by Intervoice or any subsidiary or other
Affiliate of Intervoice at any time in the future, at any location, office, or
place of business, and (ii) your forbearance to seek future employment as just
stated is purely contractual and is in no way involuntary, discriminatory, or
retaliatory.
14. Agreement Regarding Solicitation of Employees, Customers, and Suppliers. For
a period of one year following the Separation Date, and thereafter to the extent
provided by law, you will not directly or indirectly, for your own account or
for the benefit of any other person or party:
(a) Solicit, induce, entice, or attempt to entice any employee,
contractor, or subcontractor of Intervoice to terminate his or her
employment or contract with Intervoice; or
(b) Solicit, induce, entice, or attempt to entice any customer or
supplier of Intervoice, including any firms that have been customers or
suppliers of Intervoice within one year preceding the Separation Date,
to terminate its business relationship with Intervoice.
Should you breach this obligation, Intervoice will be entitled to enforce the
provisions of this paragraph by seeking injunctive relief in addition to
recovering any monetary damages Intervoice may sustain as a result of such
breach, and if so determined by judgment or decree, you may be required to repay
the Special Separation Compensation provided to you by this Agreement.
15. Officer's Indemnification. Intervoice hereby reaffirms its obligations to
you pursuant to the provisions of its Bylaws at Paragraph 8.7, Indemnification,
as currently in effect, to indemnify you in accordance therewith, both before
and after the Separation Date. Intervoice acknowledges and agrees that you have
provided to Intervoice the undertaking required by Paragraph 8.7(H) of its
Bylaws and that you are entitled to advancement of any expenses, including
attorneys' fees, in connection with the pending lawsuit in the United States
District Court for the Northern District of Texas, Dallas Division, entitled
Xxxxx Xxxxxx and Xxxx X. Xxxxxxxx, et al. v. Intervoice-Brite, Inc., et al.,
Cause No. C83-01CV1071-D. In any existing or future director and officer
insurance policies, Intervoice shall cause you to be provided insurance coverage
equal in scope to any other executive officer of Intervoice.
16. Nonadmission of Liability or Wrongdoing. This Agreement does not in any
manner constitute an admission of liability or wrongdoing on the part of
Intervoice or any of the other Intervoice Released Parties, but Intervoice and
the other Intervoice Released Parties expressly deny any such liability or
wrongdoing; and, except to the extent necessary to enforce this Agreement,
neither this Agreement nor any part of it may be construed, used, or admitted
into evidence in any judicial, administrative, or arbitral proceedings as an
admission of any kind by Intervoice or any of the other Intervoice Released
Parties.
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Xxxx 25, 2003
Page 10
17. Authority to Execute, and Indemnification for Claims.
(a) Intervoice represents and warrants that it has the authority to
execute this Agreement on behalf of all of the Intervoice Releasing
Parties. Intervoice further agrees to indemnify fully and hold harmless
you and any of the other Xxxxxx Released Parties from any and all
claims brought by the Intervoice Releasing Parties on behalf of
Intervoice, including the amount of any such claims you or any of the
Xxxxxx Released Parties are compelled to pay, and the costs and
attorney's fees incurred in defending against all such claims.
(b) You represent and warrant that you have the authority to execute
this Agreement on behalf of all the Xxxxxx Releasing Parties. You
further agree to indemnify fully and hold harmless Intervoice and any
of the other Intervoice Released Parties from any and all claims
brought by the Xxxxxx Releasing Parties or derivative of your own,
including the amount of any such claims Intervoice or any of the other
Intervoice Released Parties are compelled to pay, and the costs and
attorney's fees incurred in defending against all such claims.
18. Governing Law and Interpretation. This Agreement and the rights and duties
of the parties under it shall be governed by and construed in accordance with
the laws of the State of Texas, without regard for any conflicts of laws
provisions. If any provision of this Agreement is held to be unenforceable, such
provision shall be considered separate, distinct, and severable from the other
remaining provisions of this Agreement, and shall not affect the validity or
enforceability of such other remaining provisions; and in all other respects,
this Agreement shall remain in full force and effect. If any provision of this
Agreement is held to be unenforceable as written but may be made to be
enforceable by limitation thereof then such provision shall be enforceable to
the maximum extent permitted by applicable law. The language of all parts of
this Agreement shall in all cases be construed as a whole, according to its fair
meaning, and not strictly for or against any of the parties.
19. Breach of Agreement.
(a) Should you fail to comply with any of your obligations as set forth
in this Agreement, Intervoice will have no obligation to pay any unpaid portion
of the Special Separation Compensation described above, and you may be required
to repay any amounts and return and property comprising the Special Separation
Compensation provided to you by this Agreement; but all other provisions of this
Agreement shall remain in full force and effect.
(b) If, notwithstanding your waiver of claims as described in Paragraph
11 above, you or any other of the Xxxxxx Releasing Parties (or any other party
asserting any claim derivative of your own) should nonetheless proceed to make
any such claims against the Intervoice Released Parties by bringing an action in
a federal, state, or municipal court, or before any administrative body that has
the power to make a monetary or equitable award, then in addition to any other
legal or equitable remedies available to
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Xxxx 25, 2003
Page 11
Intervoice for your breach of this Agreement, Intervoice may seek, and the court
or other body hearing the claims may hold you liable for, Intervoice's damages
and costs, including attorney's fees, incurred in defending against your claims.
The foregoing provision does not apply with respect to an action brought under
the ADEA in which the General Release provisions of this Agreement are
challenged. With respect to any such action, the first sentence of this
subparagraph is modified to state: "If notwithstanding your waiver of claims as
described in Paragraph 11 above, you should nonetheless proceed to make any such
claims by bringing an action in a federal, state, or municipal court, or before
any administrative body that has the power to make a monetary or equitable
award, the court or other body hearing your claims may allow the employer to
recover attorney's fees and/or costs specifically authorized by federal law or
as may otherwise lawfully be determined by the court or other body hearing the
claims."
(c) If you engage in any of the restricted activities described in
Paragraph 6(b) of the Employment Agreement during the period of restriction (as
amended in Paragraph 5 herein), or engage in any conduct that violates Paragraph
27 of the Employment Agreement or any of the confidentiality terms of the
Employee Agreement on Ideas, Inventions and Confidential Information at any time
while any of the Stock Options remain outstanding and unexercised, then the
amendments to the stock option agreement described in Paragraph 3(c) shall
become null and void and of no effect whatsoever as of the date the restricted
activities or the violation of Paragraph 27 or the confidentiality provisions of
the Employee Agreement on Ideas, Inventions and Confidential Information
commenced, and provided further that Intervoice may, as of the date of
commencement of such engagement in restricted activities or violation of
confidentiality duties, cease its performance under Paragraph 3 and proceed to
pursue any and all remedies available pursuant to the terms of this Agreement or
at law or in equity.
20. EXPIRATION OF OFFER. INTERVOICE'S OFFER OF THE PROPOSED SPECIAL SEPARATION
COMPENSATION, IF NOT EARLIER WITHDRAWN, WILL EXPIRE AT 4:00 P.M. ON JULY 17,
2003, A PERIOD OF MORE THAN 21 DAYS AFTER YOU WERE ORIGINALLY PROVIDED WITH THE
TERMS OF THIS OFFER FOR YOUR CONSIDERATION. IN THIS REGARD, YOU AGREE THAT ANY
CHANGES MADE TO THE ORIGINAL OFFER, WHETHER THE SAME MAY BE CONSIDERED MATERIAL
OR IMMATERIAL, DO NOT RESTART THE RUNNING OF THE MINIMUM 21-DAY PERIOD REFERRED
TO HEREIN AND AS OTHERWISE REQUIRED BY LAW. YOU MAY ACCEPT THIS OFFER AT ANY
TIME BEFORE EXPIRATION BY SIGNING THIS LETTER IN THE SPACE PROVIDED BELOW, AND
RETURNING IT CONFIDENTIALLY TO XXX XXXXX, INTERVOICE'S EXECUTIVE VICE PRESIDENT
HUMAN RESOURCES, OR XXXX XXXXXX, INTERVOICE'S EXECUTIVE VICE PRESIDENT AND
GENERAL COUNSEL.
21. Consultation With an Attorney. You have the right and are encouraged by
Intervoice to consult with an attorney of your choosing before executing this
Agreement.
22. Effective Date. This Agreement will become effective and enforceable upon
the expiration of seven days after your execution and return of this document
("Effective Date"). At any time before the Effective Date of this Agreement, you
may revoke your acceptance.
Xx. Xxx-Xxx X. Xxxxxx
Xxxx 25, 2003
Page 12
23. Xxxxxxx and Ratification of General Release. On the Separation Date (or
within three business days thereafter), you agree to re-execute this Agreement
in renewal and ratification of your General Release as set forth in Paragraph 11
above together with all other obligations undertaken by you herein, by again
signing this letter in the appropriate space provided below. Your renewal and
ratification will not become effective and enforceable until the expiration of
seven days after your execution of it (the "Ratification Effective Date"). At
any time before the Ratification Effective Date, you may revoke your renewal
and ratification; but if you revoke, your employment will still have been
terminated, and you will not receive the Special Separation Compensation.
24. Voluntary Agreement. You acknowledge that execution of this Agreement is
knowing and voluntary on your part, and that you have had a reasonable time to
deliberate regarding its terms.
25. Consideration. Whether expressly stated herein or not, all obligations that
you assume and undertakings that you make by executing this Agreement are
understood to be in consideration of the mutual promises and undertakings herein
and the Special Separation Compensation offered to you as described in Paragraph
3 above. Further, by executing this Agreement, you acknowledge and agree that
neither Intervoice nor any of the other Intervoice Released Parties has any
legal obligation to provide the Special Separation Compensation to you, except
pursuant to the terms of this Agreement.
26. Notices. Any notices required or permitted to be given under the terms of
this Agreement or Schedule 1 hereto shall be given in writing, delivered to the
attention of the persons or offices specified below. Any such notices shall be
considered effective only upon actual delivery to the appropriate address,
marked to the attention of the party or officer for whom the notice is intended.
If to Intervoice: If to you:
Intervoice, Inc. Xx. Xxx-Xxx X. Xxxxxx
Xxxx: Executive Vice President and General Counsel 0000 Xxxxxxxx Xx.
xxx Xxxxxx, XX 00000
Executive Vice President Human Resources
00000 Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
27. Entire Agreement. Except with respect to certain preexisting obligations
expressly referred to and incorporated by reference herein, this Agreement
contains and constitutes the entire understanding and agreement between you and
Intervoice as to its subject matter, and may be modified only by a writing of
contemporaneous or subsequent date executed by both you and an authorized
official of Intervoice. This Agreement does not supersede the rights and
obligations of you and Intervoice under any nonqualified stock option agreements
except as any such agreements are amended in Paragraph 3(c) herein.
Xx. Xxx-Xxx X. Xxxxxx
Xxxx 25, 2003
Page 13
----------
If you are in agreement with the foregoing provisions, please execute both
copies of this letter in the space provided below. You should return one
executed original to the undersigned, and maintain the other executed original
in your files. Upon the expiration of seven days after the date of your
execution of this Agreement, unless revoked by you within that period, it shall
then constitute a valid and binding agreement by and between Intervoice and you.
Sincerely,
INTERVOICE, INC.
By: /s/ XXXXX X. XXXXXXXXXXX
------------------------
Xxxxx X. Xxxxxxxxxxx
Chairman of the Board and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ XXX-XXX X. XXXXXX
---------------------
Xxx-Xxx X. Xxxxxx
Date Signed: 6/25/03
-------
Xx. Xxx-Xxx X. Xxxxxx
Xxxx 25, 2003
Page 14
RENEWAL AND RATIFICATION OF GENERAL RELEASE
AND OTHER OBLIGATIONS
IF YOU HAVE ACCEPTED THIS AGREEMENT, THE FOLLOWING IS TO BE COMPLETED ONLY ON
THE SEPARATION DATE (or within three business days thereafter):
In consideration of the mutual undertakings herein and the Special Separation
Compensation specified in Paragraph 3 above, I hereby renew and ratify my
General Release as set forth in Paragraph 11 of this Agreement together with all
my other obligations under this Agreement.
----------------------
XXX-XXX X. XXXXXX
Date Signed:____________________
(only the date of the Separation Date or later may be entered)
SCHEDULE I
Subparagraph 6(b) of the Employment Agreement is hereby amended and
restated in its entirety as follows:
"6(b) For a period of twelve (12) months from the Separation Date (as
defined in that certain letter agreement between Intervoice and you dated June
25, 2003, relating to your resignation from Intervoice) you shall not, without
the written consent of the Company, own, manage, operate, control, serve as an
officer, director, employee, partner or consultant of or be connected in any way
with or have any interest in any corporation, partnership, proprietorship or
other entity whose primary source of business relates to (i) touchtone-enabled
or speech-enabled interactive voice response and/or (ii) messaging systems
(including both voice mail and unified messaging) directly or indirectly
targeted to telecommunication companies (said business activities described in
(i) and (ii) above being hereafter referred to as "Restricted Activities").
Provided, during said twelve (12) month period referred to in the preceding
sentence, you may be employed by, or otherwise connected with, an entity that is
engaged in Restricted Activities but whose primary source of business is not
related to Restricted Activities as long as your employment responsibilities and
duties are segregated entirely from operations of Restricted Activities. For
purposes of this subparagraph 6(b) the phrase "primary source of business" shall
mean that fifty percent (50%) of the revenues of an entity are derived from the
sales of systems or services of Restricted Activities. Any reference in this
subparagraph 6(b) to an "entity" or "entities" shall include any affiliate of
such entity or entities. The term "affiliate" shall have the same meaning as
such term is defined in Rule 405 of the General Rules and Regulations of the
Securities Act of 1933 (17 CFR 230.405).
The parties hereto hereby agree that the entities listed under (x)
below derive fifty percent (50%) or more of their revenues from sales of systems
or services of Restricted Activities and are entities with which you shall be
absolutely prohibited from being employed or otherwise connected with during the
twelve (12) month period referred to in the first sentence of the first
paragraph of this Section 6(b) and that the entities listed under (y) below
derive less than fifty percent (50%) of their revenues from sales of systems or
services of Restricted Activities:
(x) Comverse Technologies
Glenayre
Nuance
Speech Works
Interactive Intelligence
Bevocal
Tellme
Voice Genie
Net Bytel
Xxxxxxxx
XxxxXxxx (only if SpeechWorks is acquired by, or otherwise
becomes similarly affiliated with, ScanSoft)
(y) Nortel
Siemens
Ericsson
Alcatel
Fujitsu
Lucent
IBM
Security First/Edify
Avaya
Enghouse
Unisys
Cisco
Technomen
Logica/CM G
SSB
Aspect
Both parties recognize and agree that the names of the entities listed
in (x) and (y) above may not be the official legal name of the entity but that
each party recognizes and can readily identify such entities in the industry. If
you intend to become associated with any entity listed under (y) above in any
manner during the twelve (12) month period referred to in the first sentence of
the first paragraph above, you agree to give Intervoice at least ten (10)
business days' prior written notice of such intention and describe in reasonable
detail the activities, duties and/or responsibilities in which you intend to be
engaged with such entity. Intervoice shall retain the right to provide to you
reasonable written evidence that any entity with which you intend to become
associated is an entity that should be properly listed under (x) above. In the
event Intervoice furnishes such evidence to you, you shall have the right to
furnish reasonable written evidence to the contrary to Intervoice. Failure of
Intervoice to respond within ten (10) business days after receipt of your
notice of intention to associate with any entity listed under (y) above shall
constitute a waiver of any objection Intervoice might have to such association.
Notwithstanding the foregoing, you may own up to one percent (1%) of the shares
of any publicly-owned corporation, provided that none of your other
relationships with such corporation violates this covenant not to compete.
Both parties recognize and agree that the lists of entities under (x)
and (y) above are not exclusive, and there may be additional entities that would
properly fall into either category and be subject to the terms of this
subparagraph 6(b).
