Exhibit 10.27
INTERVOICE, INC.
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") executed as of October 23,
2002, and effective as of September 1, 2002, by and between InterVoice, Inc., a
Texas corporation with its principal executive offices at 00000 Xxxxxxxxx
Xxxxxxx, Xxxxxx, Xxxxx 00000 (the "Company"), and Xxxxxx X. Xxxxxxx (the
"Employee").
WITNESSETH:
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WHEREAS, the Employee and the Company desire to enter into this Agreement
to provide for certain terms and conditions of Employee's continued employment
by the Company.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and subject to the
terms and conditions hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS.
In addition to the words and terms elsewhere defined in this Agreement, the
following words and terms as used herein shall have the following meanings,
unless the context or use indicates a different meaning:
"Annualized Compensation Amount" means an amount equal to the annualized
salary payable and bonuses accrued or payable to the Employee pursuant to
Section 4 of this Agreement during the most recent completed fiscal year of the
Company.
"Applicable Bookings Bonus Percentage" means the percentage set forth in
the right hand column below as determined for the Company's fiscal year ending
February 28, 2004 with reference to the increase or decrease in the Company's
total bookings (i.e. firm committed unconditional orders for purchase of
equipment and/or software) for such fiscal year as compared to the immediately
preceding fiscal year in accordance with the table below entitled "Applicable
Bookings Bonus Percentage: Fiscal 2004".
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APPLICABLE BOOKINGS BONUS PERCENTAGE: FISCAL 2004
Increase or Decrease in Bookings Applicable Bookings
Compared to Prior Fiscal Year Bonus Percentage
-------------------------------- -------------------
50% or more increase 55%
45% through 49% increase 44%
35% through 44% increase 33%
20% through 34% increase 22%
10% through 19% increase 11%
1% through 9% increase 4%
Decrease in bookings through 0% 0%
"Applicable EPS Bonus Percentage" means the percentage set forth in the right
hand column below as determined for the Company's fiscal year ending February
28, 2004 with reference to the increase or decrease in the Company's earnings
per share between such fiscal year and the greater of $.15 or the Company's
earnings per share for the immediately preceding fiscal year as set forth in
the table below entitled "Applicable EPS Bonus Percentage: Fiscal 2004":
APPLICABLE EPS BONUS PERCENTAGE: FISCAL 2004
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Increase or Decrease in Earnings
Per Share in Applicable Fiscal Applicable EPS
Year Compared to Prior Fiscal Year Bonus Percentage
---------------------------------- ----------------
40% or more increase 55%
35% through 39% increase 44%
25% through 34% increase 33%
10% through 24% increase 22%
0% through 9% increase 11%
Decrease in EPS 0%
"Applicable Revenue Bonus Percentage" means the percentage set forth in the
right hand column below as determined for the Company's fiscal year ending
February 28, 2004 with reference to the increase or decrease in the Company's
total revenues between such fiscal year and the immediately preceding fiscal
year as set forth in the table below entitled "Applicable Revenue Bonus
Percentage: Fiscal 2004":
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APPLICABLE REVENUE BONUS PERCENTAGE: FISCAL 2004
Increase or Decrease in Revenues
in Applicable Fiscal Year Applicable Revenue
Compared to Prior Fiscal Year Bonus Percentage
------------------------------- ------------------
40% or more increase 56.66%
35% through 39% increase 45.33%
25% through 34% increase 34%
10% through 24% increase 22.66%
0% through 9% increase 11.33%
Decrease in revenues 0%
"Cause" means (a) any act by the Employee that is materially adverse to
the best interests of the Company and which, if the subject of a criminal
proceeding, could result in a criminal conviction for a felony or (b) the
willful failure by the Employee to substantially perform his duties hereunder,
which duties are within the control of the Employee (other than the failure
resulting from the Employee's incapacity due to physical or mental illness),
provided, however, that the Employee shall not be deemed to be terminated for
Cause under this subsection (b) unless and until (1) after the Employee
receives written notice from the Company specifying with reasonable
particularity the actions of Employee which constitute a violation of this
subsection (b) and (2) within a period of 30 days after receipt of such notice
(and during which the violation is within the control of the Employee),
Employee fails to reasonably and prospectively cure such violation.
"Common Stock" means the Company's common stock, no par value per share.
An "Event of Default" means the occurrence of any of the following events
prior to the Triggering Date, unless remedied or otherwise cured within 30 days
after the Company's receipt of written notice from the Employee of such event,
(a) a breach by the Company of any of its express or implied obligations under
this Agreement, (b) without his prior concurrence, the Employee is assigned any
duties or responsibilities that are inconsistent with his position, duties,
responsibilities or status at the commencement of the term of this Agreement, or
his reporting responsibilities or titles in effect at such time are changed, (c)
the Employee's base compensation is reduced or any other failure by the Company
to comply with Section 4, or (d) any change in any employee benefit plans or
arrangements in effect on the date hereof in which the Employee participates
(including without limitation any pension and retirement plan, savings and
profit sharing plan, stock ownership or purchase plan, stock option plan, or
life, medical or disability insurance plan), which would adversely affect the
Employee's rights or benefits thereunder, unless such change occurs pursuant to
a program applicable to all executive officers of the Company and does not
result in a proportionately greater reduction in the rights of or benefits to
the Employee as compared to any other executive officer of the Company.
"Good Reason" means the occurrence of a Triggering Event (as defined
below) and (a) a breach by the Company of any of its express obligations under
this Agreement, (b) without his prior concurrence, the Employee is assigned any
duties or responsibilities that are inconsistent with his
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position, duties, responsibilities or status at the commencement of the term of
this Agreement, or his reporting responsibilities or titles in effect at such
time are changed, (c) the Employee's base compensation is reduced or any other
failure by the Company to comply with Section 4, or (d) any change in any
employee benefit plans or arrangements in effect on the date hereof in which
the Employee participates (including without limitation any pension and
retirement plan, savings and profit sharing plan, stock ownership or purchase
plan, stock option plan, or life, medical or disability insurance plan), which
would adversely affect the Employee's rights or benefits thereunder, unless
such change occurs pursuant to a program applicable to all executive officers
of the Company and does not result in a proportionately greater reduction in
the rights of or benefits to the Employee as compared to any other executive
officer of the Company.
"Triggering Date" means the date of a Triggering Event.
A "Triggering Event" shall be deemed to have occurred if (a) any person or
group (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly or
indirectly, of securities of the Company representing more than 20% of the
combined voting power of the Company's then outstanding securities, or (b) at
any annual or special meeting of shareholders of the Company one or more
directors are elected who were not nominated by management of the Company to
serve on the Board of Directors of the Company, or (c) the Company is merged or
consolidated with another corporation and as a result of such merger or
consolidation less than 51% of the outstanding voting securities of the
surviving or resulting corporation are owned in the aggregate by the former
shareholders of the Company, other than by a party to such merger or
consolidation or affiliates (within the meaning of the Exchange Act) of any
party to such merger or consolidation, as the same existed immediately prior to
such merger or consolidation, or (d) the Company sells all or substantially all
of its assets to another corporation which is not a wholly-owned subsidiary of
the Company.
2. EMPLOYMENT.
The Company hereby employs the Employee and the Employee hereby accepts
employment on the terms and conditions set forth herein.
3. TERM.
The initial term of this Agreement shall be from September 1, 2002 until
February 28, 2004 unless sooner terminated in accordance with the provisions
herein regarding termination. Subject to earlier termination as provided herein,
the initial term of this Agreement shall be automatically extended for one (1)
year from March 1, 2004, unless either the Employee or the Company gives written
notice to the other six months or more prior to February 28, 2004.
4. COMPENSATION.
(a) Base Salary. For all services rendered by the Employee under this
Agreement, the Company shall pay the Employee a base salary of $240,750 per
year. Such salary shall be payable
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in equal semi-monthly installments in accordance with the customary payroll
policies of the Company in effect at the time such payment is made, or as
otherwise mutually agreed upon. Effective as of March 1 of each year during the
term hereof, the Company's Chief Executive Officer, in consultation with the
Compensation Committee of the Company, shall review Employee's performance for
the prior fiscal year and make such adjustments in base salary from time to
time at their discretion as the Employee and the Company may agree.
(b) Annual Bonus. Effective for the Company's fiscal year ending February
28, 2004 and continuing with respect to any fiscal year thereafter covered by an
extension of this Agreement, the Company will pay Employee an annual bonus equal
to the sum of (a) the mathematical product of Employee's base salary pursuant to
Subsection 4(a) for such fiscal year multiplied by the Applicable Revenue Bonus
Percentage, (b) the mathematical product of the Employee's base salary pursuant
to Subsection 4(a) for such fiscal year multiplied by the Applicable EPS Bonus
Percentage and (c) the mathematical product of Employee's base salary pursuant
to subsection 4(a) for such fiscal year multiplied by the Applicable Bookings
Bonus Percentage. Employee's bonus pursuant to this Subsection 4(b) shall be
earned as of the end of the Company's fiscal year and payable within five days
after the Company's receipt of its audited annual financial statements. Except
as otherwise expressly set forth in this Section 4(b), the Company's earning per
share and revenues for each fiscal year shall be the amounts set forth in the
Company's consolidated financial statements for such fiscal year and the
Company's Chief Financial Officer shall determine total bookings based on the
audited consolidated financial statements for the entire Company for such fiscal
year. The Employee and the Company agree that any determination of bookings made
by the Chief Financial Officer shall be final and conclusive for all purposes
under this Agreement. The formula set forth herein for determining annual
bonuses shall be adjusted from time to time when and if there occur stock splits
or other changes in capital structure which result in an increase or decrease in
outstanding capital stock of more than 25%. It is the intention of the parties
that the bonus formulas set forth in this Subsection 4(b) reflect the Company's
net income from operations excluding any unusual or non-recurring charges, and
revenues from continuing operations excluding any revenues or other gains
attributable to a significant acquisition of a company or line of business.
Accordingly, the Board of Directors of the Company may from time to time in its
reasonable discretion adjust the formulas set forth herein for annual bonuses to
properly reflect the Company's net income from continuing operations and
revenues from continuing operations. The parties agree and recognize that
Employee has waived his right to receive any formula-based bonus for fiscal year
2003.
(c) Bonus. In addition to the Employee's annual base salary and other
benefits provided for in this Agreement, the Company may pay to the Employee on
an annual basis a discretionary bonus in an amount to be approved by the Board
of Directors of the Company; provided, however, in no event shall the bonus
payable hereunder, if any, exceed Employee's annual base salary provided for in
Section 4(a).
(d) Benefits. The Employee shall be entitled to participate in or receive
benefits under any employee benefit plan or arrangement made available by the
Company in the future to its executive officers and key management personnel,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plan or arrangement. Nothing paid to the Employee under
any plan or arrangement presently in effect or made available in the future
shall be
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deemed to be in lieu of the salary and bonuses payable to the Employee pursuant
to Subsections 4(a), (b) and (c).
(e) Expenses. Upon receipt of itemized vouchers, expense account reports,
and supporting documents submitted to the Company in accordance with the
Company's procedures from time to time in effect, the Company shall reimburse
Employee for all reasonable and necessary travel, entertainment, and other
reasonable and necessary business expenses incurred ordinarily and necessarily
by Employee in connection with the performance of his duties hereunder.
(f) Vacation. For vacation purposes, the Employee shall be subject to the
Company's standard vacation policy based on his years of employment with the
Company.
5. POSITION, DUTIES, EXTENT OF SERVICES AND SITUS.
(a) Position and Duties. Employee shall serve as the President of the
Company, and report directly to the Company's Chief Executive Officer and,
subject to the authority of the Company's Chief Executive Officer and the
Company's Board of Directors, shall have supervision and control over, and
responsibility for, the operation of the Company and shall have such other
powers and duties as may from time to time be prescribed by such board, provided
that such duties are reasonable and customary for a president of a public
company.
(b) Extent of Services and Situs. The Employee shall devote substantially
all of his business time, attention, and energy to the business and affairs of
the Company and shall not during the term of his employment under this Agreement
engage in any other business activity which could constitute a conflict of
interest, whether or not such business activity is pursued for gain, profit, or
other pecuniary advantage. This shall not be construed as preventing the
Employee from managing his current investments or investing his assets in such
form or manner as will not require any services on the part of the Employee in
the operation and the affairs of the companies in which such investments are
made, subject to the provisions of Sections 6 and 27. The Employee shall not be
required to change the principal place of his employment to a location which is
more than 15 miles further away from his principal residence than such principal
place of employment at the time of the execution of this Agreement:
6. COVENANT NOT TO COMPETE.
(a) The Employee acknowledges that (i) as a result of his position and
tenure with the Company he has received and will continue to receive specialized
and unique training and knowledge concerning the Company, its business, its
customers and the industry in which it competes, (ii) the Company's business, in
large part, depends upon its exclusive possession and use of the Proprietary
Information (as defined in Section 27), (iii) the Company is entitled to
protection against the unauthorized disclosure or use by Employee of the
Proprietary Information or the training and knowledge received by the Employee
and (iv) he has received in this Agreement good and valuable consideration for
the covenants he is making in this Section 6 and in Section 27. The Company and
the Employee acknowledge and agree that the covenants contained in this Section
6 and in Section 27 are reasonably necessary for the protection of the Company
and are reasonably
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limited with respect to the activities they prohibit, their duration, their
geographical scope and their effects on the Employee and the public. The
parties acknowledge that the purpose and effect of the covenants are to protect
the Company from unfair competition by the Employee.
(b) Except as provided in the last sentence of this Section 6(b), during
the period in which the Employee renders services to the Company under this
Agreement and for eighteen (18) months thereafter, the Employee 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 which carries on business activities in
competition with the Company's activities in any state of the United States or
in any foreign country in which the Company has sold or installed its products
or systems or has definitive plans to sell or install its products at any time
prior to or at the time of the date of termination of the Employee's employment;
except that the Employee may own up to 1% of the shares of any publicly-owned
corporation, provided that none of his other relationships with such corporation
violates such covenant. Notwithstanding the foregoing, the provisions of this
Section 6 shall not apply if the Employee's employment with the Company under
this Agreement is terminated (i) by the Company, unless the Employee is
terminated in accordance with Section 7 or for Cause in accordance with
Subsection 9.1(a) or 9.2(a), or (ii) at the election of the Employee prior to
the Triggering Date after the occurrence of an Event of Default which has not
been waived in writing or on or after the Triggering Date for Good Reason.
(c) The Company and the Employee hereby agree that in the event that the
noncompetition covenants contained herein should be held by any court or other
constituted legal authority of competent jurisdiction to be effective in any
particular area or jurisdiction only if said covenants are modified to limit
their duration, geographical area or scope, then the parties hereto will
consider Section 6 to be amended and modified with respect to that particular
area or jurisdiction so as to comply with the order of any such court or other
constituted legal authority and, as to all other jurisdictions or political
subdivisions thereof, the noncompetition covenants contained herein will remain
in full force and effect as originally written. The Company and the Employee
further agree that in the event that the noncompetition covenants contained
herein should be held by any court or other constituted legal authority of
competent jurisdiction to be void or otherwise unenforceable in any particular
area or jurisdiction notwithstanding the operation of this Section 6(c), then
the parties hereto will consider this Section 6 to be amended and modified so as
to eliminate therefrom that particular area or jurisdiction as to which such
noncompetition covenants are so held void or otherwise unenforceable, and, as to
all other areas and jurisdictions covered by the noncompetition covenants, the
terms and provisions hereof shall remain in full force and effect as originally
written.
(d) Employee recognizes and acknowledges that the Company would suffer
irreparable harm and substantial loss if Employee violated any of the terms and
provisions of this Section 6 or Section 27 and that the actual damages which
might be sustained by the Company as the result of any breach of this Section 6
or Section 27 would be difficult to ascertain. Employee agrees, at the election
of the Company and in addition to, and not in lieu of, the Company's right to
terminate Employee's employment and to seek all other remedies and damages which
the Company may have at law and/or equity for such breach, that the Company
shall be entitled to an injunction restraining Employee from breaching any of
the terms or provisions of this Section 6 or Section 27.
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7. COMPENSATION IN THE EVENT OF DISABILITY.
(a) Disability. If the Employee becomes disabled during the term of
this Agreement the Company shall cause to be paid to the Employee an amount
equal to his base salary in effect at the time of disability under Subsection
4(a), for the shorter of the duration of the disability or the remainder of the
term of this Agreement and, subject to the provisions of Section 22 and 25, with
no liability on its part for further payments to the Employee during the
duration of the disability. Subject to Subsection 7(b) below, full compensation
shall be reinstituted upon his return to employment and resumption of his
duties. For purposes of this Subsection 7(a) the Employee shall be deemed
"disabled" when he is unable, for a period of 90 consecutive days, to perform
his normal duties of employment due to bodily injury or disease or any other
physical or mental disability.
(b) Complete Disability. The Company shall have the right to terminate
the Employee's employment under this Agreement prior to the expiration of the
term upon the "Complete Disability" of the Employee as hereinafter defined
(provided, however, that the obligations of the Company under Subsection 7(a)
shall not terminate). The term "Complete Disability" as used in this Subsection
7(b) shall mean (i) the total inability of the Employee, despite any reasonable
accommodations required by law, due to bodily injury or disease or any other
physical or mental incapacity, to perform the services provided for hereunder
for a period of 120 days, in the aggregate, within any given period of 180
consecutive days during the term of this Agreement in addition to any
statutorily required leave of absence, and (ii) where such inability will, in
the opinion of a qualified physician (reasonably acceptable to Employee), be
permanent and continuous during the remainder of his life.
8. COMPENSATION IN THE EVENT OF DEATH.
If the Employee dies during the term of his employment, the Company shall
pay to such person as the Employee shall designate in a notice filed with the
Company, or, if no such person shall be designed, to his estate as a death
benefit, his base salary in effect at the time of his death pursuant to
Subsection 4(a), in equal semi-monthly installments on the first and fifteenth
day of each month immediately succeeding his death, for a period of months (not
exceeding 12) determined by multiplying the number of complete 12-month periods
of employment of the Employee by the Company (whether pursuant to an
employment
agreement or not) by two, in addition to any payments the Employee's spouse,
beneficiaries, or estate may be entitled to receive pursuant to any pension or
employee benefit plan or life insurance policy maintained by the Company, and,
except for any obligations of the Company under Section 22 and 25, all other
obligations of the Company hereunder shall cease at the time of the Employee's
death.
9. TERMINATION.
9.1 Termination Prior to the Triggering Date. (a) Upon at least 30 days'
prior written notice to the Employee and prior to the Triggering Date, the
Company may terminate the Employee's employment with the Company under this
Agreement only for Cause or in accordance with Section 7 and, subject to the
provisions of Sections 7, 22 and 25, with no liability on its part for further
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payments to the Employee. The Company may effect a termination for
Cause pursuant to this Subsection 9.1(a) only by the affirmative vote of a
majority of the members of the Board of Directors of the Company. In voting
upon such termination for Cause, if the Employee is later elected as a member
of the Board of Directors of the Company, then he may not vote on, and will not
be considered present for any purpose with respect to, a matter presented to
the Board of Directors of the Company pursuant to this Subsection 9.1(a).
(b) Prior to the Triggering Date, the Employee may terminate his employment
with the Company under this Agreement by giving at least 90 days' prior written
notice of his desire to terminate employment to the Board of Directors of the
Company. If the Employee's employment with the Company under this Agreement is
terminated pursuant to this Subsection 9.1(b), the Employee will continue to
accrue and receive his base salary in effect at the time pursuant to Subsection
4(a) through the date of termination with no liability on the part of the
Company for further payments to the Employee, subject to the provisions of
Sections 22 and 25.
(c) Prior to the Triggering Date, if the Employee's employment with the
Company is terminated by the Company without Cause or if the Employee terminates
his employment with the Company following the occurrence of an Event of Default
which has not been waived in writing by the Employee, the Employee will continue
to accrue and receive his base salary in effect at the time pursuant to
Subsection 4(a) through the date of termination and will be entitled to receive
the benefits provided for under Subsection 10.1 (unless the Employee's
employment is terminated in accordance with Section 7) with no liability on the
part of the Company for further payments to the Employee, subject to the
provisions of Sections 7, 22 and 25.
9.2 Termination On or After the Triggering Date. (a) Upon at least 30 days'
prior written notice to the Employee and on or after the Triggering Date, the
Company may terminate the Employee's employment with the Company under this
Agreement only for Cause or in accordance with Section 7 and, subject to the
provisions of Sections 7, 22 and 25, with no liability on its part for further
payments to the Employee. The Company may effect a termination for Cause
pursuant to this Subsection 9.2(a) only by the affirmative vote of two-thirds
of the members of the Board of Directors of the Company. In voting upon such
termination for Cause, if the Employee is also a member of the Board of
Directors of the Company, then he may not vote on, and will not be considered
present for any purpose with respect to, a matter presented to the Board of
Directors of the Company pursuant to this Subsection 9.2(a).
(b) On or after the Triggering Date, if the Employee's employment with the
Company is terminated by the Company without Cause or if the Employee terminates
his employment with the Company for Good Reason, the Employee will continue to
accrue and receive his base salary in effect at the time pursuant to Subsection
4(a) through the date of termination and will be entitled to receive the
payments and benefits provided for under Subsections 10.2 and 10.3 (unless the
Employee's employment is terminated in accordance with Section 7) with no
liability on the part of the Company for further payments to the Employee,
subject to the provisions of Sections 7, 22 and 25.
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(c) On or after the Triggering Date, the Employee may terminate his
employment with the Company under this Agreement by giving 90 days' prior
written notice of his desire to terminate employment to the Board of Directors
of the Company. If the Employee's employment with the Company under this
Agreement is terminated pursuant to this Subsection 9.2(c), the Employee will
continue to accrue and receive his base salary in effect at the time pursuant
to Subsection 4(a) through the date of termination specified in such notice
with no liability on the part of the Company for further payments to the
Employee, subject to the provisions of Sections 22 and 25.
10. COMPENSATION AFTER CERTAIN TERMINATIONS.
10.1 Remaining Compensation. If the Employee's employment with the
Company is terminated (whether such termination is by the Employee or by the
Company) at any time prior to the Triggering Date for any reason other than (a)
termination by the Company for Cause in accordance with Subsection 9.1(a); (b)
termination by the Company in accordance with Section 7; (c) the Employee's
death; or (d) termination at the election of the Employee pursuant to Subsection
9.1(b) then, within five days after the date of such termination, the Remaining
Compensation (as herein defined) which would have been paid to the Employee
during the remainder of the term of this Agreement if termination had not
occurred shall become due and payable and shall be paid to the Employee in a
single lump sum in cash. For purposes of this Subsection 10.1, the "Remaining
Compensation" shall mean the annual base salary payable to the Employee pursuant
to Subsection 4(a) at the time of termination plus an amount representing the
value of all employee benefits including, without limitation, any unearned
annual bonuses described in Subsection 4(b), discretionary bonuses and incentive
compensation under plans then in effect. For these purposes, the value of any
unearned annual bonuses and all of such other employee benefits shall be deemed
to be equal to the annual base salary payable to the Employee pursuant to
Subsection 4(a) at the time his employment is terminated.
10.2 Post Triggering Date Severance Payment. If the Employee's
employment with the Company is terminated (whether such termination is by the
Employee or by the Company) at any time on or within three years after the
Triggering Date for any reason other than (a) termination by the Company for
Cause in accordance with Subsection 9.2(a) or (b) termination by the Company in
accordance with Section 7 or (c) the Employee's death or (d) termination at the
election of the Employee without Good Reason, then, within five days after the
date of such termination, the Company shall pay the Employee a lump sum amount
in cash equal to 2.99 times the Annualized Compensation Amount.
10.3 Gross-Up Payment. In the event that (i) the Employee becomes
entitled to the payments provided under Section 10.2 of this Agreement (the
"Change in Control Payments") and any of the Change in Control Payments will be
subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), or any successor provision, or
(ii) any payments or benefits received or to be received by the Employee
pursuant to the terms of any other plan, arrangement or agreement (the
"Benefit Payments") will be subject to the Excise Tax, the Company shall pay
to the Employee an additional amount (the "Gross-Up Payment") such that the net
amount retained by the Employee, after deduction of any Excise Tax on the
Change in Control Payments and the Benefit Payments, and any federal, state and
local income
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tax and Excise Tax upon the payment provided for by this Section 10.3, shall be
equal to the Change in Control Payments and the Benefit Payments, provided,
however, that in determining the amount of the Gross-Up Payment, any Excise Tax
on the Change in Control Payments and the Benefit Payments shall be determined
using a rate no higher than 20%. For purposes of determining whether any of the
Change in Control Payments or the Benefit Payments will be subject to the Excise
Tax and the amount of such Excise Tax, (i) any payments or benefits received or
to be received by the Employee in connection with a change in control of the
Company or the Employee's termination of employment (whether pursuant to the
terms of this agreement or any other plan, arrangement or agreement with the
Company, any person whose actions result in change in control or any person
affiliated with the Company or such persons) shall be treated as "parachute
payments" within the meaning of Section 280G(b) (2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b) (1) shall be treated
as subject to the Excise Tax, unless in the opinion of tax counsel selected by
the Company's independent auditors and acceptable to the Employee such payments
or benefits (in whole or in part) do not constitute parachute payments, or such
excess payments (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b) (4) of the
Code, (ii) the amount of the Change in Control Payments and the Benefit Payments
that shall be treated as subject to the Excise Tax shall be equal to the lesser
of (A) the total amount of the Change in Control Payments and the Benefit
Payments or (B) the amount of excess parachute payments within the meaning of
Sections 280G(b)(1) and (4) (after applying clause (i), above) and (iii) the
value of any non-cash benefits or any deferred payment or benefit shall be
determined by the Company's independent auditors in accordance with the
principles of Section 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, the Employee shall be deemed to
pay federal income taxes at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rates or taxation in the state and
locality of the Employee's residence on the date of termination, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of the Employee's employment, the Employee shall repay to the
Company at that time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such reduction
plus interest on the amount of such repayment at the rate provided in Section
1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder at the time of the termination of
the Employee's employment (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional gross-up payment to the Employee in respect of
such excess (plus any interest payable with respect to such excess) at the time
that the amount of such excess is finally determined.
11. MITIGATION.
The Employee shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor
shall the amount of any payment provided for in this Agreement be reduced by
any compensation earned by the Employee as the result of employment by another
employer after the date of termination of Employee's employment with the
Company, or otherwise.
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12. ENTIRE AGREEMENT.
This Agreement embodies the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior negotiations, agreements, and understandings relating to such subject
matter, and may be modified or amended only by an instrument in writing signed
by the parties hereto.
13. LAW TO GOVERN.
This Agreement is executed and delivered in the State of
Texas and shall
be governed, construed and enforced in accordance with the laws of the State of
Texas.
14. ASSIGNMENT.
This Agreement is personal to the parties, and neither this Agreement nor
any interest herein may be assigned (other than by will or by the laws of
descent and distribution) without the prior written consent of the parties
hereto nor be subject to alienation, anticipation, sale, pledge, encumbrance,
execution, levy, or other legal process of any kind against the Employee or any
of his beneficiaries or any other person. Notwithstanding the foregoing, the
Company shall be permitted to assign this Agreement to any corporation or other
business entity succeeding to substantially all of the business and assets of
the Company by merger, consolidation, sale of assets, or otherwise, if the
Company obtains the assumption of this Agreement by such successor. Failure by
the Company to obtain such assumption prior to the effectiveness of such
succession shall be a breach of this Agreement and shall entitle the Employee
to receive compensation from the Company under this Agreement in the same
amount and on the same terms as he would be entitled to hereunder if he had
terminated his employment after the Triggering Date for Good Reason, and, for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Triggering Date.
15. BINDING AGREEMENT.
Subject to the provisions of Section 14 of this Agreement, this Agreement
shall be binding upon and shall inure to the benefit of the Company and the
Employee and their respective representatives, successors, and assigns.
16. REFERENCES AND GENDER.
All references to "Sections" and "Subsections" contained herein are,
unless specifically indicated otherwise, references to sections an subsections
of this Agreement. Whenever herein the singular number is used, the same shall
include the plural where appropriate, and words of either gender shall include
the other gender where appropriate.
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17. WAIVER.
No waiver of any right under this Agreement shall be deemed effective
unless the same is set forth in writing and signed by the party giving such
waiver, and no waiver of any right shall be deemed to be a waiver of any such
right in the future.
18. NOTICES.
Except as may be otherwise specifically provided in this Agreement, all
notices required or permitted hereunder shall be in writing and will be deemed
to be delivered when deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, addressed to the party
or parties at 00000 Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, or at such other
addresses as may have theretofore been specified by written notice delivered in
accordance herewith.
19. OTHER INSTRUMENTS.
The parties hereto covenant and agree that they will execute such other
and further instruments and documents as are or may become necessary or
convenient to effectuate and carry out the terms of this Agreement.
20. HEADINGS.
The headings used in this Agreement are used for reference purposes only
and do not constitute substantive matter to be considered in construing the
terms of this Agreement.
21. INVALID PROVISION.
Any clause, sentence, provision, section, subsection, or paragraph of this
Agreement held by a court of competent jurisdiction to be invalid, illegal, or
ineffective shall not impair, invalidate, or nullify the remainder of this
Agreement, but the effect thereof shall be confined to the clause, sentence,
provision, section, subsection, or paragraph so held to be invalid, illegal or
ineffective.
22. RIGHTS UNDER PLANS AND PROGRAMS.
Anything in this Agreement to the contrary notwithstanding, no provision
of this Agreement is intended, nor shall it be construed, to reduce or in any
way restrict any benefit to which the Employee may be entitled under any other
agreement, plan, arrangement, or program providing benefits for the Employee.
23. MULTIPLE COPIES.
This Agreement may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original and all of which shall together
constitute one and the same instrument. The terms of this Agreement shall
become binding upon each party from and after the time that he
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or it executed a copy hereof. In like manner, from and after the time that any
party executes a consent or other document, such consent or other document
shall be binding upon such parties.
24. WITHHOLDING OF TAXES.
The Company may withhold from any amounts payable under this Agreement all
federal, state, city, or other taxes as shall be required pursuant to any law or
government regulation or ruling.
25. LEGAL FEES AND EXPENSES.
The Company shall pay and be responsible for all legal fees and expenses
which the Employee may incur as a result of the Company's failure to perform
under this Agreement or as a result of the Company or any successor contesting
the validity or enforceability of this Agreement.
26. SET OFF OR COUNTERCLAIM.
Except with respect to any claim against or debt or other obligation of the
Employee properly recorded on the books and records of the Company prior to the
Triggering Date, there shall be no right of set off or counterclaim against, or
delay in, any payment by the Company to the Employee or his beneficiaries
provided for in this Agreement in respect of any claim against or debt or other
obligation of the Employee, whether arising hereunder or otherwise.
27. ASSIGNMENT, PROTECTION AND CONFIDENTIALITY OF PROPRIETARY INFORMATION.
Employee acknowledges and agrees that all items of the Company's
Proprietary Information constitute valuable, special and unique assets and trade
secrets of its business, which provide to the Company a competitive advantage
over others who do not have access thereto and access to which is essential to
the performance of Employee's duties hereunder. Employee shall not, during the
term of this Agreement or thereafter, use or disclose any Proprietary
Information that is not otherwise publicly available, in whole or in part, for
his benefit or for the benefit of any other person or party, except for the
Company. As used herein, "Proprietary Information" includes, but is not limited
to, customer lists and prices, whether current or prospective, product designs
or other product information, experimental developments and other research and
development information, testing processes, marketing studies and research
activities, and any other trade secrets concerning the Company, its
shareholders, officers, directors, employees, business prospects, customers,
transactions, finances, affairs, opportunities, operations, properties or
assets. The Employee further agrees that all inventions, devices, compounds,
processes, formulas, techniques, improvements and modifications which he may
develop, in whole or in part, during the term of his employment or through or
with the facilities, equipment or resources of the Company shall be and remain
the sole and exclusive property of the Company. The Employee agrees to deliver
to the Company at any time the Company may request, all memoranda, notes, plans,
records, reports, and other documents (including copies thereof and all
embodiments thereof whether in computerized form or any other medium) relating
to the business or affairs of the Company or its subsidiaries which he may then
possess or have under his control. Employee shall maintain in good condition all
tangible and other
14
forms of Proprietary Information in Employee's custody or control until his
obligations under the preceding sentence are satisfied. Employee agrees to
execute all documents and take such other actions as may be required to comply
with this Section.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
INTERVOICE, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Chairman of the Board
and Chief Executive Officer
/s/ Xxxxxx Xxxxxxx
-------------------------------
XXXXXX X. XXXXXXX
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