EXHIBIT (10)(xii)(c)
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of August 16,
2002, by and between Syntellect Inc., a Delaware corporation ("Employer"), and
Xxxxxxx X. Xxxxxxxxx, III ("Employee").
WHEREAS, Employee currently serves as an employee and senior management of
Employer; and
WHEREAS, Employer currently is exploring various opportunities, including
one or more transactions that might result in a "Change of Control" (as defined
below), that are intended to enhance Employer's long-term growth and to increase
its stockholders' return on investment; and
WHEREAS, Employer has determined that it is in Employer's best interest to
encourage Employee to (a) remain employed with Employer and (b) use Employee's
best efforts to assist Employer in achieving its long-term goals; and
WHEREAS, Employer and Employee desire to enter into this Agreement to set
forth the parties' respective rights and obligations in the event of a Change of
Control.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following capitalized
terms shall have the meanings set forth beside such terms:
(a) "Change of Control" means and includes each of the following:
(i) there shall be consummated any consolidation or merger of
Employer in which Employer is not the continuing or surviving entity, or
pursuant to which Employer's capital stock would be converted into cash,
securities or other property, other than a merger of Employer in which the
holders of Employer's capital stock immediately prior to the merger have the
same proportionate ownership of beneficial interest of common stock or other
voting securities of the surviving entity immediately after the merger;
(ii) there shall be consummated any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of
assets or earning power aggregating more than 40% of the assets or earning power
of Employer and its subsidiaries (taken as a whole);
(iii)the stockholders of Employer shall approve any plan or
proposal for liquidation or dissolution of Employer;
(iv) any person (as such term is used in Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934), other than any employee
benefit plan of Employer or any subsidiary of Employer or any entity holding
shares of capital stock of Employer for or pursuant to the terms of any such
employee benefit plan in its role as an agent or trustee for such plan, shall
become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange
Act) of 20% or more of Employer's outstanding capital stock; or
(v) during any period of two consecutive years, individuals
who at the beginning of such period constitute Employer's board of directors
shall fail to constitute a majority thereof, unless the election, or the
nomination for election by Employer's stockholders, of each new director was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period.
(b) "COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1986.
(c) "Constructive Termination" shall occur if, within twelve (12)
months after the effective date of a Change of Control and without the consent
of Employee, a successor or assign, as described in Section 3(h) hereof
("Successor") assigns Employee status, title, position, duties, geographic
location, compensation, or responsibilities (including reporting
responsibilities) that are materially different from Employee's status, title,
position, duties, geographic location, compensation, or responsibilities
(including reporting responsibilities) immediately prior to the time of the
Change of Control or which constitute a diminishment in Employee's status,
title, position, duties, compensation or responsibilities from those in effect
prior to the effective date of a Change in Control.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(e) "Excess Parachute Payment" shall have the meaning set forth in
Section 2.
(f) "Severance Amount" shall mean an amount equal to (i) fifty
percent (50%) of the greater of (a) Employee's current gross annual salary prior
to the voluntary 10% reduction in salary effected on or about July 15, 2002 and
any subsequent reduction(s) and (b) Employee's current gross annual salary as of
the date of termination or Constructive Termination of Employee's employment,
plus (ii) fifty percent (50%) of Employee's targeted annual bonus amount for the
year in which Employee's employment is terminated plus (iii) any unpaid fringe
benefits, deferred amounts, bonus sums that Employee may have earned on or prior
to the date of termination or Constructive Termination of Employee's employment,
plus (iv) an amount equal to the total of the current medical and dental
insurance premiums which would be paid on Employee's behalf for the six (6)
month period following termination or Constructive Termination of Employee's
employment or, in lieu of such amount, agreement to maintain Employee's coverage
under Employee's current medical and dental insurance policies or medical and
dental insurance policies substantially similar to such policies for a period of
six (6) months following termination or Constructive Termination of Employee's
employment.
2. TERMINATION FOLLOWING CHANGE IN CONTROL. In the event of the
occurrence of Constructive Termination within twelve (12) months after the
effective date of a Change in Control, Employee may, at Employee's option,
terminate Employee's employment due to Constructive Termination unless Employee
has entered into an employment agreement with Successor. Such termination shall
be effective upon Employee giving notice to Successor. In the event of
termination of Employee's employment (1) by Successor within twelve (12) months
after the effective date of a Change of Control, or (2) by Employee within
twelve (12) months after the effective date of a Change of Control as a result
of a Constructive Termination, then (a) Successor shall pay Employee a lump sum
cash payment equal to the Severance Amount within 10 business days after the
termination of employment; (b) Successor shall make available to Employee, at
Employee's cost and expense, medical and other insurance coverage at a level and
to the extent required by COBRA; and (c) any outstanding options held by
Employee that remain unvested as of the date of termination shall become fully
vested and exercisable as of the date of termination of Employee's employment
with Successor and prior to the occurrence of an event otherwise terminating the
options. Notwithstanding the foregoing, in the event that any payments under
this Section 2 will be deemed to constitute an "excess parachute payment" as
defined in Section 280G(b)(i) of the Internal Revenue Code of 1986, as amended
(an "Excess Parachute Payment"), then the payments to Employee under this
Section 2 shall be limited to an amount equal to the maximum amount that could
be paid to Employee so that no such amount, along with all other payments to
Employee by Successor, will be deemed to constitute an Excess Parachute Payment.
Subject to the terms of this Section 2, Employee shall not be entitled to
receive any other compensation or benefits under this Agreement as a result of
the termination of Employee's employment following a Change of Control or
Constructive Termination.
3. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands, and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made, and received (i) if
personally delivered, on the date of delivery, (ii) if by facsimile
transmission, upon receipt, (iii) if mailed, three days after deposit in the
United States mail, registered or certified, return receipt requested, postage
prepaid, or (iv) if by a courier delivery service providing overnight or
"next-day" delivery, on the next business day after deposit with such service,
in each case addressed as follows:
(1) If to Employer and/or Successor: (2) If to Employee:
Syntellect Inc. Xxxxxxx X. Xxxxxxxxx III
Suite 100 Syntellect Inc.
00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxx 000
0
Xxxxxxx, Xxxxxxx 00000 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx: President Xxxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
e-mail: xxxxxxxxxx@xxxxxxxxxx.xxx
with a copy given in the manner with a copy given in the manner
prescribed above to Successor at its prescribed above, to:
principal place of business, to the
attention of Successor's Chief
Executive Officer with a copy to
Successor's General Counsel, and to:
Xxxxxx & Xxxxxxxx LLP _________________________________
Xxxxx 000 _________________________________
0000 Xxxx Xxxxxxxxx Xxxx _________________________________
Xxxxxxx, Xxxxxxx 00000 _________________________________
Attention: Xxxxxx X. Xxxxxx, Esq. Attention:_______________________
Tel: (000) 000-0000 Tel:_____________________________
Fax: (000) 000-0000 Fax:_____________________________
e-mail: xxx@xxxxxxxxxxxxxx.xxx e-mail:__________________________
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 3(a) for the giving of notice.
(b) INDULGENCES; WAIVERS. Neither any failure nor any delay on the
part of either party to exercise any right, remedy, power, or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power, or privilege preclude any other or
further exercise of the same or of any other right, remedy, power, or privilege,
nor shall any waiver of any right, remedy, power, or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power, or
privilege with respect to any other occurrence. No waiver shall be binding
unless executed in writing by the party making the waiver.
(c) CONTROLLING LAW. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement, shall be governed by
and construed in accordance with the laws of the State of Arizona,
notwithstanding any Arizona conflict-of-interest or choice of law provisions to
the contrary.
(d) EXECUTION IN COUNTERPART. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.
Signatures may be given by facsimile or other electronic transmission, and such
signatures shall be fully binding on the party sending the same.
(e) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(f) ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements and conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
(g) SECTION HEADINGS. The section headings in this Agreement are for
convenience only. They form no part of this Agreement and shall not affect its
interpretation.
(h) BINDING NATURE OF AGREEMENT; SUCCESSORS AND ASSIGNS. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors, and assigns;
provided that because the obligations of Employee to provide services to
Employer involve the
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performance of personal services, such obligations shall not be delegated by
Employee. For purposes of this Agreement, successors and assigns shall include,
but not be limited to, any individual, corporation, trust, partnership, limited
liability company, or other entity to whom control is passed in the event of a
Change in Control or whom otherwise assumes such control. Employer shall require
any successor or assign (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of Employer to expressly assume and agree to perform this Agreement so as
to provide Employee with all of the rights and benefits intended by the parties
in entering into this Agreement. Without limiting the foregoing, unless the
context otherwise requires, the term "Employer" includes all subsidiaries of
Employer.
(i) CONSTRUCTION. The parties hereto acknowledge that each party was
represented by legal counsel (or had the opportunity to be represented by legal
counsel) in connection with this Agreement and that each of them and his or its
counsel have reviewed and revised this Agreement, or have had an opportunity to
do so, and that any rule of construction to the effect that ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments or any exhibits or schedules
hereto or thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Employer:
SYNTELLECT INC.
By /S/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Its President and Chief Executive Officer
--------------------------------------
Employee:
/S/ Xxxxxxx X. Xxxxxxxxx, III
-----------------------------
Xxxxxxx X. Xxxxxxxxx, III
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