AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated EMPLOYMENT AGREEMENT (this “Agreement”) executed on October 9, 2006
between Intervoice, Inc., a Texas corporation (“Intervoice”), and Xxxxx X. Xxxxxxx (the
“Employee”).
WHEREAS, in connection with the Employee’s recent promotion to the position of Senior Vice
President Corporate Marketing, Intervoice and Employee desire to amend and restate Employee’s prior
Employment Agreement dated as of December 5, 2005;
WHEREAS, Intervoice desires to continue to employ the Employee, and the Employee desires to be
employed by Intervoice, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, Intervoice and the Employee hereby
agree as follows:
1. Employment.
Intervoice agrees to continue to employ the Employee, and the Employee agrees to enter the
employ of Intervoice under the terms of this Agreement through December 30, 2007, (the “Initial
Employment Term”). Following the expiration of the Initial Employment Term, the Employee’s
continued employment by Intervoice shall be at will, subject to the general policies and practices
of Intervoice as shall apply to a person having such position as the Employee may then and
thereafter from time to time hold.
2. Position and Duties.
(a) During the Initial Employment Term, the Employee shall devote her full time, skill, and
attention, and her best efforts during normal business hours to the business and affairs of
Intervoice, to the extent necessary to discharge faithfully and efficiently the duties and
responsibilities delegated and assigned to the Employee herein or pursuant hereto, except for
usual, ordinary, and customary periods of vacation and absence due to illness or other disability.
(b) All services that the Employee may render to Intervoice or any of its subsidiaries or
affiliates in any capacity during the Initial Employment Term shall be deemed to be services
required by this Agreement and consideration for the compensation provided for herein.
(c) The Employee shall perform her duties and responsibilities in the capacity of a senior
vice president level position.
3. Compensation and Related Matters.
(a) Base Salary. During the Initial Employment Term, Intervoice shall continue to pay
to the Employee for her services hereunder a base salary (“Base Salary”) at the rate of $215,000
per year, payable in semi-monthly installments in accordance with the general payroll practices
(including payroll withholding requirements) of Intervoice in effect at the time such payment is
made. The Base Salary may be increased, as determined to be appropriate by Intervoice, following
Intervoice’s annual review of the Employee’s performance.
(b) Employee Benefits. During the Initial Employment Term, the Employee shall be
entitled to receive all employee benefits which are from time to time generally made available by
Intervoice to its other similarly situated employees.
(c) Annual Bonus. Effective for Intervoice’s fiscal year beginning March 1, 2006, and
continuing with respect to the fiscal year ending February 28, 2008, the Employee will participate
in the bonus plan provided to the Employee by Intervoice for the applicable time period, according
to the terms of such plan. The Employee will participate under the plan at the senior vice
president level with an incentive target at plan of 40 percent of the Employee’s annual base salary
rate.
(d) Vacations and Other Authorized Absences. During the Initial Employment Term, the
Employee shall be entitled to paid vacations and such other paid absences for holidays, illness,
personal time, or other authorized reasons, in accordance with the policies, practices, and
procedures of Intervoice from time to time in effect. The Employee agrees to utilize her vacation
at such time or times as are (i) consistent with the proper performance of her duties and
responsibilities hereunder, and (ii) mutually convenient for Intervoice and the Employee.
(e) Stay Bonus. Within 15 days after satisfactory completion of her employment
through December 30, 2006, Intervoice shall pay to the Employee a retention bonus of $30,000, and
within 15 days after satisfactory completion of the remaining Initial Employment Term, Intervoice
shall pay to the Employee an additional retention bonus of $20,000 (collectively, the “Stay
Bonus”), less applicable withholding and otherwise according to the general payroll practices of
Intervoice, in consideration of the Employee’s continued satisfactory service, according to the
good-faith determination of Intervoice, during each year of the Initial Employment Term of this
Agreement. If the Employee voluntarily terminates employment with Intervoice during the Initial
Employment Term for any reason (including, without limitation, to accept a new job or to retire)
other than for Good Reason (as defined in Paragraph 4 herein), or if the Employee’s employment with
Intervoice is terminated for Cause (as defined in Paragraph 4 herein) or because of her death or
Disability (as defined in Paragraph 4 herein) in accordance with this Agreement, then the Employee
shall not be entitled to receive any portion of the Stay Bonus not already earned according to the
criteria stated above. However, if the Employee’s employment is terminated by Intervoice prior to
the completion of the Initial Employment Term for any reason other than for Cause, death,
Disability, or pursuant to the provisions of Paragraph 1(b) hereof, then the portion of the Stay
Bonus for the first or second year of the Initial Employment Term, as applicable
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according to whether the termination occurs during the first or second year of the Initial
Employment Term, shall be payable in full as soon as practicable following the Employee’s
termination; provided, however, that in the event such payment constitutes deferred compensation
that may not be paid before the date that is six months after the date of the Employee’s separation
from service (or, if earlier, the date of death of the Employee) as provided in Section 409A(a)(2)
of the Internal Revenue Code of 1986, as amended (the “Code”) in order to meet the requirements of
Section 409A of the Code, as determined by Intervoice in its sole judgment, the Stay Bonus shall be
paid in full as soon as administratively practicable following the date that is six months after
the date of the Employee’s separation from service (or, if earlier, the date of death of the
Executive).
4. Termination of Employment.
(a) Events of Termination. The Employee’s employment hereunder shall terminate
automatically upon the first to occur of the Employee’s death, Disability (as herein defined),
termination by Intervoice for Cause (as herein defined), or termination by the Employee for Good
Reason (as herein defined).
(b) Certain Definitions. For purposes of this Agreement:
(i) The “Disability” of the Employee shall be deemed to have occurred if the Employee
shall have been unable to perform her duties hereunder, despite any reasonable accommodation
required by law, on a full-time basis for 60 consecutive days, or for an aggregate of 90
days within any given period of 180 consecutive days (excluding any leaves of absence
approved by Intervoice) as a result of her physical or mental incapacity.
(ii) “Cause” shall mean any of the following.
(A) conduct by the Employee that, in the good-faith opinion of the Employee’s
supervising officer, an executive officer, or the Board of Directors of Intervoice
is materially detrimental to Intervoice or reflects unfavorably on Intervoice or the
Employee to such an extent that Intervoice’s best interest reasonably requires the
Employee’s discharge;
(B) conduct by the Employee that constitutes willful misconduct or gross
negligence in the performance of her duties hereunder;
(C) conduct by the Employee that constitutes fraud or a criminal act, whether
or not related to Intervoice or the Employee’s duties hereunder;
(D) the continued failure by the Employee to substantially perform her duties
hereunder (other than any such failure resulting from illness of or injury to the
Employee or the Employee’s physical or mental incapacity), after demand for
substantial performance is delivered by
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Intervoice that specifically identifies the manner in which Intervoice believes
the Employee has not substantially performed her duties; or
(E) any material breach by the Employee of any of the material provisions of
this Agreement.
(iii) “Good Reason” shall mean any of the following (without the Employee’s consent).
(A) the assignment to the Employee by Intervoice of any significant duties
materially inconsistent with the Employee’s position with Intervoice at the time of
such assignment, or the Employee is required by Intervoice to permanently office at
a location which is more than 30 miles from Intervoice’s current facility in Santa
Clara, California;
(B) the removal by Intervoice from the Employee of a significant and material
portion of those duties usually appertaining to the Employee’s position with
Intervoice at the time of such removal;
(C) a reduction by Intervoice of the Employee’s Base Salary as then in effect
pursuant to the provisions hereof, or the failure of Intervoice to pay such Base
Salary to the Employee substantially at the time and in the manner specified in
Paragraph 3(a) of this Agreement; or
(D) any failure by Intervoice to otherwise comply with any material provision
of this Agreement in any material respect after receiving 30 days’ written notice
from the Employee.
(c) Date of Termination. For purposes of this Agreement, “Date of Termination” shall mean
the effective date of termination of the Employee’s employment hereunder, which date shall be (i)
if the Employee’s employment is terminated by her death, the date of her death, (ii) if the
Employee’s employment is terminated because of her Disability, the 30th day following Intervoice’s
notice that the Employee’s employment is being terminated due to Disability, (iii) if the
Employee’s employment is terminated by Intervoice for Cause, the third day following the date on
which Intervoice gives notice that the Employee’s employment is being terminated for Cause, (iv) if
the Employee’s employment is terminated by the Employee for Good Reason, the fifth day following
the date on which the Employee gives notice that she is terminating her employment for Good Reason,
and (v) if the Employee’s employment is terminated for any other reason, the date specified in the
notice of termination, which date shall in no event be earlier than the date such notice is given.
5. Obligations of Intervoice Upon Termination of Employment.
(a) Death. If the Employee’s employment hereunder is terminated by reason of the
Employee’s death, Intervoice shall pay to the Employee’s estate, in a lump sum in cash, the sum of
(i) the Employee’s Base Salary through the Date of Termination, to the extent not theretofore paid,
and (ii) an amount equal to the Base Salary the Employee
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would have been entitled to receive had the Employee remained in Intervoice’s employ through the
end of the calendar month during which her employment terminated.
(b) Disability. If the Employee’s employment hereunder is terminated by reason of the
Employee’s Disability, Intervoice shall pay to the Employee, in a lump sum in cash, the sum of (i)
the Employee’s Base Salary through the Date of Termination, to the extent not theretofore paid, and
(ii) an amount equal to the Base Salary the Employee would have been entitled to receive had the
Employee remained in Intervoice’s employ through the end of the calendar month during which her
employment terminated.
(c) Termination for Cause. If the Employee’s employment hereunder is terminated for
Cause, Intervoice shall pay to the Employee, in a lump sum in cash, the Employee’s Base Salary
through the Date of Termination, to the extent not theretofore paid, and, thereafter, Intervoice
shall have no further obligations to the Employee under this Agreement.
(d) Termination by the Employee Other than for Good Reason. If the Employee’s
employment hereunder is terminated by the Employee other than for Good Reason, Intervoice shall pay
to the Employee, in a lump sum in cash, the Employee’s Base Salary through the Date of Termination,
to the extent not theretofore paid.
(e) Termination by Company Other Than for Cause, Etc., or by the Employee for Good
Reason. If the Employee’s employment hereunder is terminated by Intervoice other than for
Cause, Death, Disability, or pursuant to the provisions of Paragraph 1(b), or if the Employee’s
employment hereunder is terminated by the Employee for Good Reason, Intervoice shall pay to the
Employee, in a lump sum in cash, the aggregate of the following amounts:
(i) the Employee’s Base Salary through the Date of Termination to the extent not
theretofore paid; and
(ii) an amount equal to the Employee’s Base Salary for the period of time commencing on
the Date of Termination and continuing through the last to occur of (A) 180 days, or (B)
expiration of the Initial Employment Term of this Agreement pursuant to Paragraph 1(a)
hereof.
(f) Time of Payment. The Base Salary payments provided for under clause (ii) of
subparagraphs (a), (b), and (e) of this Paragraph 5 shall be paid at the time and in the manner
such Base Salary would have been paid had there been no termination of employment (except as
otherwise required by applicable law) unless such payments constitute deferred compensation that
may not be paid before the date that is six months after the date of the Employee’s separation from
service (or, if earlier, the date of death of the Employee) as provided in Section 409A(a)(2) of
the Internal Revenue Code of 1986, as amended (the “Code”) in order to meet the requirements of
Section 409A of the Code, as determined by Intervoice in its sole judgment, in which case the sum
of the payments that otherwise would have been made during such six-month period shall be paid in a
single lump-sum payment as soon as administratively
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practicable following the date that is six months after the date of the Employee’s separation from
service (or, if earlier, the date of death of the Executive) and any remaining payments provided
for under this Paragraph 5 shall be paid at the time and in the manner such Base Salary would have
been paid had there been no termination of employment.
(g) Sole Remedy. The right to receive the payments and other benefits provided for
under this Paragraph 5 shall be the Employee’s sole and exclusive remedy for the termination of her
employment and shall be in lieu of any claim that she might otherwise have against Intervoice
arising from such termination.
6. Confidential Information.
(a) “Confidential Information” means, without limitation, all documents or information, in
whatever form or medium, concerning or evidencing sales; costs; pricing; strategies; forecasts and
long range plans; financial and tax information; personnel information; business, marketing and
operational projections, plans, and opportunities; and customer, vendor, and supplier information;
but excluding any such information that is or becomes generally available to the public other than
as a result of any breach of this Agreement or other unauthorized disclosure by the Employee.
(b) The Employee acknowledges and agrees that (i) Intervoice is engaged in a highly
competitive business; (ii) Intervoice has expended considerable time and resources to develop
goodwill with its customers, vendors, and others, and to create, protect, and exploit Confidential
Information; (iii) Intervoice must continue to prevent the dilution of its goodwill and
unauthorized use or disclosure of its Confidential Information to avoid irreparable harm to its
legitimate business interests; (iv) in the voice and data solutions business (including
particularly, but without limitation, the segments of interactive voice response/portal solutions,
messaging solutions, payment solutions, maintenance and related services, and managed services
provided for customers on an outsourced or managed service provider basis), her participation in or
direction of Intervoice’s day-to-day financial activities, operations, and strategic planning are
an integral part of Intervoice’s continued success and goodwill; (v) given her position and
responsibilities, she necessarily will be creating Confidential Information that belongs to
Intervoice and enhances Intervoice’s goodwill, and in carrying out her responsibilities she in turn
will be relying on Intervoice’s goodwill and the disclosure by Intervoice to her of Confidential
Information; and (vi) she will have access to Confidential Information that could be used by any
Competitor of Intervoice in a manner that would irreparably harm Intervoice’s competitive position
in the marketplace and dilute its goodwill.
(c) Intervoice acknowledges and agrees that the Employee must have and continue to have
throughout her employment the benefits and use of its goodwill and Confidential Information in
order to properly carry out her responsibilities. Intervoice accordingly promises upon execution
and delivery of this Agreement to provide the Employee immediate access to new and additional
Confidential Information and to authorize her to engage in activities that will create new and
additional Confidential Information.
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(d) Intervoice and the Executive thus acknowledge and agree that during the Employee’s
employment with Intervoice and upon execution and delivery of this Agreement she (i) has received,
will receive, and will continue to receive, Confidential Information that is unique, proprietary,
and valuable to Intervoice; (ii) has created, will create, and will continue to create,
Confidential Information that is unique, proprietary, and valuable to Intervoice; and (iii) has
benefited, will benefit, and will continue to benefit, including without limitation by way of
increased earnings and earning capacity, from the goodwill Intervoice has generated and from the
Confidential Information.
(e) Accordingly, the Employee acknowledges and agrees that at all times during her employment
by Intervoice and/or any of its subsidiaries and thereafter:
(i) all Confidential Information shall remain and be the sole and exclusive property of
Intervoice and/or its Affiliates;
(ii) she will protect and safeguard all Confidential Information;
(iii) she will hold all Confidential Information in strictest confidence and not,
directly or indirectly, disclose or divulge any Confidential Information to any person other
than an officer, director, or employee of, or legal counsel for, Intervoice or its
subsidiaries, to the extent necessary for the proper performance of her responsibilities
unless authorized to do so by Intervoice or compelled to do so by law or valid legal
process;
(iv) if she believes she is compelled by law or valid legal process to disclose or
divulge any Confidential Information, she will notify Intervoice in writing sufficiently in
advance of any such disclosure to allow Intervoice the opportunity to defend, limit, or
otherwise protect its interests against such disclosure;
(v) at the end of her employment with Intervoice for any reason or at the request of
Intervoice at any time, she will return to Intervoice all Confidential Information and all
copies thereof, in whatever tangible form or medium, including electronic; and
(vi) absent the promises and representations of the Employee in this Paragraph 6 and in
Paragraph 7, Intervoice would require her immediately to return any tangible Confidential
Information in her possession, would not provide the Employee with new and additional
Confidential Information, would not authorize the Employee to engage in activities that will
create new and additional Confidential Information, and would not enter or have entered into
this Agreement.
7. Nonsolicitation and Nondisparagement Obligations. In consideration of Intervoice’s
promises to provide the Employee with new and additional Confidential Information and to authorize
her to engage in activities that will create new and additional Confidential Information upon
execution and delivery of this Agreement, and the other promises and undertakings of Intervoice in
this Agreement, the Employee
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agrees that, while she is employed by Intervoice and/or any of its subsidiaries and for a six-month
period following the end of that employment for any reason, she shall not engage in any of the
following activities (the “Restricted Activities”):
(a) She will not directly or indirectly disparage Intervoice or its subsidiaries, any
products, services, or operations of Intervoice or its subsidiaries, or any of the former, current,
or future officers, directors, or employees of Intervoice or its subsidiaries;
(b) She will not, whether on her own behalf or on behalf of any other individual, partnership,
firm, corporation, or business organization, either directly or indirectly solicit, induce,
persuade, or entice, or endeavor to solicit, induce, persuade, or entice, any person who is then
employed by or otherwise engaged to perform services for Intervoice or its subsidiaries to leave
that employment or cease performing those services;
(c) She will not, whether on her own behalf or on behalf of any other individual, partnership,
firm, corporation or business organization, either directly or indirectly solicit, induce,
persuade, or entice, or endeavor to solicit, induce, persuade, or entice, any person who is then a
customer, supplier, or vendor of Intervoice or any of its subsidiaries to cease being a customer,
supplier, or vendor of Intervoice or any of its subsidiaries or to divert all or any part of such
person’s or entity’s business from Intervoice or any of its subsidiaries; and
(d) The Employee acknowledges and agrees that the restrictions contained in this Paragraph 7
are ancillary to an otherwise enforceable agreement, including without limitation the mutual
promises and undertakings set forth in Paragraph 6; that Intervoice’s promises and undertakings set
forth in Paragraph 7 and the Employee’s position and responsibilities with Intervoice give rise to
Intervoice’s interest in restricting the Employee’s post-employment activities; that such
restrictions are designed to enforce the Employee’s promises and undertakings set forth in this
Paragraph 7 and her common-law obligations and duties owed to Intervoice and its subsidiaries; 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; that she will immediately notify Intervoice
in writing should she believe or be advised that the restrictions are not, or likely are not, valid
or enforceable under Texas law or the law of any other state that she contends or is advised is
applicable; that the mutual promises and undertakings of Intervoice and the Employee under
Paragraphs 6 and 7 are not contingent on the duration of the Employee’s employment with Intervoice;
and that absent the promises and representations made by the Employee in this Paragraph 7 and in
Paragraph 6, Intervoice would require her to return any Confidential Information in her possession,
would not provide the Employee with new and additional Confidential Information, would not
authorize the Employee to engage in activities that will create new and additional Confidential
Information, and would not enter or have entered into this Agreement.
8. Business Records. Given the secretive and competitive environment in which Intervoice
does business and the fiduciary relationship that the Employee will have with
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Intervoice hereunder, the Employee agrees to promptly deliver to Intervoice, upon termination of
her employment, or at any other time when Intervoice so requests, all memoranda, notes, records,
drawings, manuals, and other documents (and all copies thereof and therefrom) in any way relating
to the business or affairs of Intervoice or any of its subsidiaries or any of their clients,
whether made or compiled by the Employee or furnished to her by Intervoice or any of its employees,
customers, clients, consultants, or agents, which the Employee may then possess or have under her
control. The Employee confirms that all such memoranda, notes, records, drawings, manuals, and
other documents (and all copies thereof and therefrom) constitute the exclusive property of
Intervoice. The obligation of confidentiality set forth in Paragraph 6 shall continue
notwithstanding the Employee’s delivery of any such documents to Intervoice. The provisions of
this Paragraph 8 shall continue in effect notwithstanding termination of the Employee’s employment
hereunder for any reason.
9. Intellectual Property.
(a) Disclosure. The Employee shall promptly disclose to Intervoice all ideas,
inventions, discoveries, processes, designs, methods, substances, articles, computer programs, and
improvements, whether or not patentable or copyrightable (all of the foregoing being hereinafter
collectively called “Intellectual Property”), which the Employee conceives, invents, discovers,
creates, or develops, alone or with others, during the Initial Employment Term, if such conception,
invention, discovery, creation, or development (i) occurs in the course of the Employee’s
employment with Intervoice, or (ii) occurs with the use of Intervoice’s or any of its subsidiaries’
time, materials, or facilities, or (iii) relates or pertains in any way to Intervoice’s or any of
its subsidiaries’ purposes, activities, or affairs.
(b) Assignment. The Employee hereby assigns and agrees to assign to Intervoice, its
successors, assigns, or designees, all of the Employee’s right, title, and interest in and to all
Intellectual Property that the Employee is obligated to disclose to Intervoice pursuant to
Paragraph 9(a).
(c) Assistance. The Employee shall assist Intervoice in the preparation of and shall
execute and deliver all disclosures, applications for patents or reissue of patents, rights of
priority, assignments, and other documents, give all testimony, and in general do all lawful things
requested by Intervoice to obtain, maintain, and enforce United States and foreign patents and to
obtain, maintain, and enforce on behalf of Intervoice or its designee legal title and all rights in
and to all Intellectual Property referred to in the preceding provisions of this Paragraph 9.
(d) Records. The Employee shall prepare and maintain adequate and current written
records of all Intellectual Property within the scope of Paragraphs 9(a) and (b) in the form of
notes, sketches, drawings, memoranda, or reports, all of which shall be promptly submitted by the
Employee to Intervoice and shall be owned exclusively by Intervoice.
(e) Consideration and Expenses. The Employee shall perform her obligations under this
Paragraph (at Intervoice’s expense), but without any additional compensation
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other than that which the Employee receives by reason of her employment with Intervoice or pursuant
to any separate agreement between Intervoice and the Employee that may be in effect from time to
time during the Initial Employment Term.
(f) Power of Attorney. If Intervoice or its designee is unable for any reason
whatsoever to obtain the Employee’s signature to any documents that Intervoice is entitled to
require her to sign pursuant to this Paragraph 9, the Employee hereby irrevocably designates and
appoints Intervoice as her agent and attorney-in-fact to act for and on behalf of her and in her
stead to execute, deliver, and file all such documents (including, without limitation, all
applications for United States and foreign patents or for the reissue of such patents) and to do
all other lawful acts that Intervoice is entitled to require the Employee to do pursuant to this
Paragraph 9.
(g) Survival. The provisions of this Paragraph 9 shall continue in effect for two
years following the termination of the Employee’s employment hereunder for any reason.
10. Assistance in Litigation. During the Initial Employment Term and for a period of five
years thereafter, the Employee shall, upon reasonable notice, furnish such information and proper
assistance to Intervoice as may reasonably be required by Intervoice in connection with any
litigation in which Intervoice or any of its subsidiaries or affiliates is, or may become, a party.
The Employee promises that any testimony she may give in any such litigation shall be truthful.
The Company shall reimburse the Employee for all reasonable out-of-pocket expenses incurred by the
Employee in rendering such assistance. The provisions of this Paragraph 10 shall continue in
effect notwithstanding termination of the Employee’s employment hereunder for any reason.
11. Withholding Taxes. The Company shall withhold from any payments to be made to the
Employee hereunder such amounts (including Social Security contributions and federal income taxes)
as shall be required by federal, state, and local withholding tax laws.
12. CONDITIONS TO EMPLOYMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
EMPLOYEE’S EMPLOYMENT BY THE COMPANY AND THE EFFECTIVENESS OF THIS AGREEMENT ARE SUBJECT TO (i) A
BACKGROUND CHECK, AND (ii) THE EMPLOYEE’S COMPLETION OF A DRUG TEST. THE COMPANY MAY CHOOSE TO
WITHDRAW ITS PREVIOUS CONDITIONAL OFFER OF EMPLOYMENT TO THE EMPLOYEE IF THE RESULTS OF EITHER OF
THE FOREGOING CONDITIONS ARE DETERMINED BY THE COMPANY, IN ITS SOLE DISCRETION, TO BE
UNSATISFACTORY.
13. Compliance with Code Section 409A. Any provision of this Agreement to the contrary
notwithstanding, all compensation payable pursuant to this Agreement that is determined by
Intervoice in its sole judgment to be subject to Section 409A of the Code shall be paid in a manner
that Intervoice in its sole judgment determines meets the requirements of Section 409A of the Code
and any related rules, regulations, or other guidance, even if meeting such requirements would
result in a delay in the time of payment of such compensation.
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14. Attorneys’ Fees and Costs. In the event there is any litigation between the parties
hereto with respect to this Agreement, the prevailing party in such litigation shall be entitled to
recover all attorneys’ fees and costs incurred by such party in connection with such litigation.
15. Injunctive Relief. In recognition of the fact that a breach by the Employee of any of
the provisions of Paragraphs 6, 7, 8, and 9 will cause irreparable damage to Intervoice for which
monetary damages alone will not constitute an adequate remedy, Intervoice shall be entitled as a
matter of right (without being required to prove damages or furnish any bond or other security) to
obtain a restraining order, an injunction, an order of specific performance, or other equitable or
extraordinary relief from any court of competent jurisdiction, restraining any further violation of
such provisions by the Employee or requiring her to perform her obligations hereunder. Such right
to equitable or extraordinary relief shall not be exclusive but shall be in addition to all other
rights and remedies to which Intervoice may be entitled at law or in equity, including without
limitation the right to recover monetary damages for the breach by the Employee of any of the
provisions of this Agreement.
16. Jurisdiction and Venue. In respect of any action or proceeding arising out of or
relating to this Agreement, each of the parties hereto consents to the jurisdiction and venue of
any federal or state court located within Dallas County, Texas, waives personal service of any and
all process upon it or her, consents that all such service of process may be made by first class
registered or certified mail, postage prepaid, return receipt requested, directed to it or her at
the address specified in Paragraph 19, agrees that service so made shall be deemed to be completed
upon actual receipt thereof, and waives any objection to jurisdiction or venue of, and waives any
motion to transfer venue from, any of the aforesaid courts. This provision does not prevent
Intervoice from removing to an appropriate federal court any action brought in state court. THE
EMPLOYEE HEREBY CONSENTS TO, AND WAIVES ANY OBJECTIONS TO, REMOVAL TO FEDERAL COURT BY INTERVOICE
OF ANY ACTION BROUGHT AGAINST IT BY THE EMPLOYEE.
17. JURY TRIAL WAIVER. IN THE EVENT THAT ANY DISPUTE ARISING FROM OR RELATED TO THIS
AGREEMENT OR THE EMPLOYEE’S EMPLOYMENT WITH INTERVOICE RESULTS IN A LAWSUIT, BOTH INTERVOICE AND
THE EMPLOYEE MUTUALLY WAIVE ANY RIGHT THEY MAY OTHERWISE HAVE FOR A JURY TO DECIDE THE ISSUES IN
THE LAWSUIT, REGARDLESS OF THE PARTY OR PARTIES ASSERTING CLAIMS IN THE LAWSUIT OR THE NATURE OF
SUCH CLAIMS. INTERVOICE AND THE EMPLOYEE IRREVOCABLY AGREE THAT ALL ISSUES IN SUCH A LAWSUIT SHALL
BE DECIDED BY A JUDGE RATHER THAN A JURY.
18. Survival. Neither the expiration nor the termination of the term of the Employee’s
employment hereunder shall impair the rights or obligations of either party hereto which shall have
accrued hereunder prior to such expiration or termination. The provisions of Paragraphs 6, 7, 8,
9, 10, 14, and 15, and the rights and obligations of the parties
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thereunder, shall survive the expiration or termination of the term of the Employee’s employment
hereunder.
19. Notices. All notices, requests, demands, and other communications required or
permitted to be given or made hereunder by either party hereto shall be in writing and shall be
deemed to have been duly given or made (i) when delivered personally, (ii) when sent by
telefacsimile transmission, or (iii) three days after being deposited in the United States mail,
first class registered or certified mail, postage prepaid, return receipt requested, to the party
for which intended at the following addresses (or at such other addresses as shall be specified by
the parties by like notice):
If to Intervoice, at:
Intervoice, Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
Attention: Senior Vice President Human Resources
00000 Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
Attention: Senior Vice President Human Resources
If to the Employee, at:
20. Entire Agreement. This Agreement constitutes the entire agreement between the parties
hereto concerning the subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the parties with respect to such subject matter. The Employment
Agreement dated as of December 5, 2005 between Intervoice and Employee is terminated upon execution
and delivery of this Agreement.
21. Binding Effect; Assignment, No Third Party Benefit. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors, and assigns; provided, however, that the duties and responsibilities
of the Employee hereunder may not be assumed by, or delegated to, any other person. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any person other than the
parties hereto, and their respective heirs, legal representatives, successors, and permitted
assigns, any rights, benefits, or remedies of any nature whatsoever under or by reason of this
Agreement.
22. Amendment. This Agreement may not be modified or amended in any respect except by an
instrument in writing signed by both parties hereto.
23. Waiver. Any term or condition of this Agreement may be waived at any time by the party
hereto which is entitled to have the benefit thereof, but such waiver shall only be effective if
evidenced by a writing signed by such party, and a waiver on one
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occasion shall not be deemed to be a waiver of the same or any other type of breach on a future
occasion. No failure or delay by a party hereto in exercising any right or power hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right or power.
24. Severability. If any provision of this Agreement is held to be unenforceable, (i) this
Agreement shall be considered divisible, (ii) such provision shall be deemed inoperative to the
extent it is deemed unenforceable, and (iii) in all other respects this Agreement shall remain in
full force and effect; provided, however, that if any such provision may be made enforceable by
limitation thereof, then such provision shall be deemed to be so limited and shall be enforceable
to the maximum extent permitted by applicable law.
25. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas without regard to the principles of conflicts of
laws thereof.
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IN WITNESS WHEREOF, Intervoice has caused this Agreement to be executed on its behalf by its
duly authorized officer, and the Employee has executed this Agreement, as of the date first set
forth above.
| INTERVOICE, INC. | ||
By:
|
 |
|
Name:
|
H. Xxx Xxxxx | |
Title:
|
Senior Vice President Human Resources | |
EMPLOYEE |
||
| /s/ Xxxxx X. Xxxxxxx | ||
| Xxxxx X. Xxxxxxx | ||
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