Exhibit 10.26
EMPLOYMENT AGREEMENT
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Xxxx Xxxxxx
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This Employment Agreement ("Agreement") is made and entered into on this
___ day of January, 2002, by and between Davox Corporation (the "Company" or
"Davox") and Xxxx Xxxxxx (hereinafter called the "Executive").
RECITALS
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A. The Executive is currently employed as President & Chief Executive
Officer of CELLIT, Inc.
B. CELLIT, Inc. has merged with and into Dolphin Acquisition Corp., which
is a wholly-owned subsidiary of Davox
C. The Executive possesses intimate knowledge of the business and affairs
of CELLIT, Inc.
D. Davox values Executive's knowledge of the business affairs of CELLIT,
INC. and desires to employ Executive.
E. The Executive wishes to leave the employ of CELLIT, Inc. and become
employed by Davox and is willing to make his services available to the
Company on the terms and conditions hereinafter set forth.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties agree as follows:
ARTICLE I
Employment At-Will and Best Efforts
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1.1 Subject to Article III, Executive's employment with the Company is on
an "at-will" basis. Either the Company or the Executive may terminate
Executive's employment at any time, for any or no reason, with or without prior
notice.
1.2 During the period of Executive's employment by the Company, Executive
shall devote his full time and best efforts to the Company's business, and he
shall neither pursue any business opportunity outside the Company nor take any
position with any organization other than the Company without the approval of
the Company's Chief Executive Officer; provided, however, that Executive may
participate in professional, civic, social and/or charitable activities that do
not adversely affect his ability to carry out his responsibilities to the
Company.
ARTICLE II
Compensation
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2.1 The Executive shall be employed as Executive Vice President
Engineering reporting to the President & Chief Executive Officer of Davox
Corporation. Executive shall receive during the term of this Agreement a base
salary at the annual rate of Two Hundred Thousand Dollars ($200,000).
Executive's salary is subject to the review and discretion of Davox's Chief
Executive Officer.
2.2 Executive shall be eligible to participate in the Executive Incentive
Compensation Program. Total combined incentive at 100% of plan for the
year shall be equal to 50% of base salary. Eligibility is extended on
a quarterly and annual basis subject to the terms and conditions of
the the Incentive Compensation Plan. Bonus criteria is based on
Executive and company performance. A copy of the plan shall be
furnished to the executive annually.
2.3 Executive shall be eligible to participate in all benefits plans
offered by the Company subject to the general terms and conditions of each such
plan, and as such plans are amended from time-to-time.
2.4 Davox will grant employee the option to purchase 125,0000 shares of
Davox's common stock. The option will be subject to the terms and conditions of
Davox's Stock Option Plan and Davox's standard Stock Option Agreement, which
will include, among other terms and conditions, a vesting schedule.
2.5 Executive shall be eligible for vacation time each calendar year
during the term of this Agreement, subject to the terms and conditions of the
Company's standard vacation policy, as it is amended from time-to-time.
2.6 Executive will be reimbursed for all authorized business expenses in a
manner consistent with the Company's standard expense reimbursement policy, as
it is amended from time-to-time.
2.7 Executive's years of employment with CELLIT, Inc. shall be credited as
years of service to the Company for purposes of all Company plans and policies.
ARTICLE III
Severance
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3.1 Executive will be eligible for severance payments if terminated "for
economic reason" as defined in Article 3.2 below. If terminated for economic
reasons as defined herein, the Company shall continue Executive's then current
base salary and medical benefits (at the Company's cost) for a period of six (6)
months from the date of termination or until such time as Executive obtains new
employment, whichever occurs first.
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3.2 For purposes of this Article III, a termination "for economic reasons"
shall mean: (i) the Executive's inclusion in an economic layoff; (ii) the
Executive's inclusion in a downsizing which results in the elimination of
Executive's position; or (iii) a downsizing and/or reorganization which would
require Executive to relocate more than seventy-five (75) miles.
3.3 Receipt of the severance payment set forth in Article 3.1 is contingent
upon Executive's execution of a release of claims in a form reasonably
acceptable to the Company.
ARTICLE IV
Definitions
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4.1 Company: The term "Company" in Articles V through XI, exclusively, of
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this Agreement shall mean Davox Corporation and any parent, subsidiary,
affiliate, successor or assign of Davox Corporation (including without
limitation CELLIT, Inc. and its subsidiaries and affiliates).
4.2 Confidential Information: The term "Confidential Information" shall
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mean any trade secret, proprietary or confidential information concerning the
organization, personnel, business or finances of the Company, or of any third
party which the Company is under an obligation to keep confidential, and that is
maintained by the Company as confidential. Such Confidential Information shall
include, but is not limited to, trade secrets, proprietary or confidential
information respecting existing and future products and services, designs,
methods, formulas, drafts of publications, research, know-how, techniques,
systems, databases, processes, software programs or code, developments or
experimental work, works of authorship, customer lists and/or customer
information, business plans, marketing plans, financial information, sales
techniques, projects, the Company's salary and/or pay rates, and other Company
personnel information.
4.3 Developments: The term "Developments" shall mean any invention,
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modification, discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data, technique, know-how,
trade secret or intellectual property right whatsoever or any interest therein
(whether or not patentable or registrable under copyright, trademark or similar
statutes, including, but not limited to, the Semiconductor Chip Protection Act,
or subject to analogous protection).
ARTICLE V
Disclosure of Developments
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5.1 Executive agrees that he will forthwith communicate in writing to the
Board of Directors of the Company, or such officer or individual as the Board of
Directors of the Company may from time to time designate, a full and complete
disclosure of any and all Developments, research and other information,
discoveries and improvements made, developed,
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conceived and/or reduced to practice by him, alone, or jointly with others (i)
while in the employ of the Company and (ii) during a one [1] year period
following the termination of his employment or other association with the
Company if such Developments, research, discoveries or improvements relate to
the business of the Company.
5.2 The business of the Company includes any technical or business
interest that has been worked on by the Company in the past (including without
limitation any technical or business interest of CELLIT, Inc. and its
subsidiaries and affiliates), or in which there is work in progress at the
Company during the period of Executive's employment with the Company. The
business interests of the Company include Company operations or activities in
the planning stages. Executive understands that this disclosure of Developments
and the following assignment of Developments does not cover any of his patents
or patents applications that are filed or based exclusively on inventions made
by Executive before his employment or association with CELLIT, Inc.
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ARTICLE VI
Assignment of Developments
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6.1 If at any time or times during Executive's employment or other
association with the Company (including Executive's employment or other
association with CELLIT, Inc. and its subsidiaries and affiliates), Executive
has in the past (either alone or with others) made, conceived, created,
discovered, invented or reduced to practice any Development, and/or Executive
shall going forward (either alone or with others) make, conceive, create,
discover, invent or reduce to practice any Development, that (i) relates to the
business of the Company or any customer of or supplier to the Company or any of
the products or services being developed, manufactured or sold by the Company or
which may be used in relation therewith; or (ii) results from tasks assigned to
Executive by the Company; or (iii) results from the use of premises or personal
property (whether tangible or intangible) owned, leased or contracted for by the
Company, then all such Developments and the benefits thereof are and shall
immediately become the sole and absolute property of the Company and its
assigns, as works made for hire or otherwise. Executive shall promptly disclose
to the Company (or any persons designated by it) each such Development. At the
Company's expense, Executive hereby assigns all rights (including, but not
limited to, rights to inventions, patentable subject matter, copyrights and
trademarks) Executive may have or may acquire in the Developments and all
benefits and/or rights resulting therefrom to the Company and its assigns
without further compensation and shall communicate, without delay, and without
disclosing to others the same, all available information relating thereto (with
all necessary plans and models) to the Company.
6.2 Executive will assist, upon request, in locating writings and other
physical evidence of the making of Executive's Developments and provide
unrecorded information relating to them, and give testimony in any proceeding in
which any of Executive's Developments or any application or patent directed
thereto may be involved, provided that if Executive is no longer employed by the
Company reasonable compensation shall be paid for such services. To the extent
feasible, the Company will use its best efforts to request such assistance at
times and places as will least interfere with any other employment of the
Executive.
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6.3 If the Company is unable, after reasonable effort, to secure
Executive's signature on any application for patent, copyright, trademark or
other analogous protection or other documents regarding any legal protection
relating to a Development assigned or assignable to the Company under this
Article VI, whether because of Executive's physical or mental incapacity or for
any other reason whatsoever, Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as his agent
and attorney-in-fact, to act for and in his behalf and stead to execute and file
any such application or applications or other documents and to do all other
lawfully permitted acts to further the prosecution and issuance of patent,
copyright or trademark registrations or any other legal protection thereon with
the same legal force and effect as if executed by Executive.
6.4 Executive will promptly disclose to the Company all material which
Executive has produced, composed or written, and which Executive shall produce,
compose or write, individually or in collaboration with others, which arises out
of work delegated to Executive by the Company. Executive agrees that all such
material constitutes a work for hire, and at the expense of the Company,
Executive hereby assigns to the Company all his interest in such copyrightable
material and will sign all papers and do all other acts necessary to assist the
Company to obtain copyrights on such material in any and all countries.
6.5 Any Development relating to the Company's business made by
Executive within one [1] year following the termination of his employment (and
which is required to be disclosed in accordance with Section 5.1 above) shall be
presumed to be owned by the Company.
6.6 Executive represents that the Developments identified in the
Appendix attached hereto, if any, comprise all the Developments that he has made
or conceived prior to his employment by the Company, which Developments are
excluded from this Agreement. Executive understands that it is only necessary to
list the title of such Developments and the purpose thereof, but not details of
the Development itself. IF THERE ARE ANY SUCH DEVELOPMENTS TO BE EXCLUDED, THE
UNDERSIGNED SHOULD INITIAL HERE; OTHERWISE IT WILL BE DEEMED THAT THERE ARE NO
SUCH EXCLUSIONS. ______________.
ARTICLE VII
Non-Disclosure
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7.1 Executive agrees that he will not, at any time, whether during or
after the termination of his employment, without first obtaining the written
approval of the Board of Directors of the Company, or of such officer or
individual as the Board of Directors of the Company may from time to time
designate, divulge or disclose to any person or entity outside of the Company,
whether by private communications or by public address or publication, or
otherwise, any Confidential Information, except to the extent that such
disclosure is necessary to perform Executive's duties and fulfill Executive's
responsibilities as an employee of the Company or is required by law or legal
process. All original and copies of any Confidential Information or other
written materials relating to the business of the Company, however and whenever
produced, shall be the sole property of the Company, and shall be surrendered to
the Company upon termination of Executive's employment.
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7.2 Subject to Section 7.1, Executive shall keep confidential all
matters entrusted to him and shall not use or attempt to use any Confidential
Information, including confidential information related to third parties which
the Company is obligated to maintain as confidential, except as may be required
in the ordinary course of performing his duties as an employee of the Company,
nor shall he use any Confidential Information in any manner which may injure or
cause loss or may be calculated to injure or cause loss to the Company, whether
directly or indirectly.
ARTICLE VIII
Non-Competition
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8.1 Executive agrees that while in the employ of the Company and for
one [1] year thereafter (the "Restriction Term"), regardless of the reasons for
his termination, Executive shall not, directly or indirectly, alone or as a
consultant, partner, officer, director, employee, joint venturer, lender or
stockholder of any entity (a) accept employment or establish any other
relationship with any business within the United States that is in competition
with the products or services created, developed or under development,
manufactured or planning to be manufactured, marketed or planning to be
marketed, distributed or planning to be distributed, sold or planning to be
sold, by the Company at the time of his termination (collectively, the "Products
and Services"), or (b) engage in any business or activity within the United
States that is in competition with the Products and Services, provided, however,
that the record or beneficial ownership of five [5] percent or less of the
outstanding publicly traded capital stock of any entity shall not be deemed, in
and of itself, to be in violation of this Article.
8.2 Executive acknowledges and agrees that any violation by him of the
terms of this Article by either accepting employment or establishing any other
relationship that is in competition with the Company's Products and Services
will result in the inevitable disclosure (either intentionally or otherwise) of
the Company's valuable and sensitive Confidential Information.
ARTICLE IX
Non-Solicitation Of Customers
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9.1 Executive agrees that during the Restriction Term, regardless of
the reasons for his termination from employment, he will not directly or
indirectly, alone or as a consultant, partner, officer, director, employee,
joint venturer, lender or stockholder of any entity, solicit or do business in
any capacity that competes with any of the Company's Products and Services with
any customer of the Company or any potential customer of the Company (a) with
whom Executive had contact during the course of his employment with the Company,
or (b) about whom Executive obtained Confidential Information during the course
of his employment with the Company.
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ARTICLE X
Non-Solicitation/Non-Hire Of Employees
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10.1 Executive agrees that during the Restriction Term, regardless of
the reasons for his termination, he will not directly or indirectly, alone or as
a consultant, partner, officer, director, employee, joint venturer, lender or
stockholder of any entity, recruit, solicit for hire, hire or knowingly and with
his involvement encourage (explicitly or implicitly) any company or business
organization in which he is employed or which is directly or indirectly
controlled by him to recruit, solicit for hire or hire any Company employee,
agent, representative or consultant, or any such person who has terminated
his/her relationship with the Company within six months of Executive's departure
from the Company.
ARTICLE XI
Company Property
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11.1 Except for de minimis personal use, at Executive's cost, Executive
agrees that during his employment he shall not make, use or permit to be used
any Company Property otherwise than for the benefit of the Company. The term
"Company Property" shall include all notes, memoranda, reports, lists, records,
drawings, sketches, rolodexes, specifications, software programs, software code,
data, computers, cellular telephones, pagers, palm pilots and their equivalents,
credit and/or calling cards, keys, access cards, documentation or other
materials of any nature and in any form, whether written, printed, electronic or
in digital format or otherwise, relating to any matter within the scope of the
business of the Company or concerning any of its dealings or affairs, and any
other Company property in Executive's possession, custody or control. Executive
further agrees that he shall not, after the termination of his employment, use
or permit others to use any such Company Property. Executive acknowledges and
agrees that all Company Property shall be and remain the sole and exclusive
property of the Company. Immediately upon the termination of his employment
Executive shall deliver all Company Property in my possession, and all copies
thereof, to the Company.
ARTICLE XII
Acknowledgement By Executive
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12.1 Executive acknowledges and confirms that (i) the restrictive
covenants contained in this Agreement are reasonably necessary to protect the
legitimate business interests of the Company, and (ii) the restrictions
contained in this Agreement (including without limitation the length of the term
of the provisions) are not overboard, overlong, or unfair and are not the result
of overreaching, duress or coercion of any kind. Executive further acknowledges
and confirms that his full, uninhibited and faithful observance of each of the
covenants contained in this Agreement will not cause him any undue hardship,
financial or otherwise, and that enforcement of each of the covenants contained
herein will not impair his ability to obtain employment commensurate with his
abilities and on terms fully acceptable to him or otherwise to obtain income
required for the comfortable support of him and his family and the satisfaction
of the needs of his creditors. The Executive acknowledges and confirms that his
special knowledge of
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the business of the Company is such as would cause the Company serious injury or
loss if he were to use such ability and knowledge to the benefit of a competitor
or were to compete with the Company in violation of the terms of this Agreement.
The Executive further acknowledges that the restrictions contained in this
Agreement are intended to be, and shall be, for the benefit of and shall be
enforceable by, the Company's successors and assigns.
ARTICLE XIII
General Provisions
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13.1 Executive agrees that this Agreement shall be binding upon him
irrespective of the duration of his employment or other association with the
Company, the reasons for the cessation of his employment or other association
with the Company, or the amount of his wages and/or salary.
13.2 Executive agrees that any breach of this Agreement by him will
cause irreparable damage to the Company and in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violations of my obligations hereunder.
13.3 This Agreement sets forth the complete, sole and entire agreement
between the parties with respect to the subject matter herein and supersedes any
and all other agreements, negotiations, discussions, proposals, or
understandings, whether oral or written, previously entered into, discussed or
considered by the parties, including that certain Amended and Restated
Employment Agreement that Executive entered into with CELLIT, Inc. on November
19, 1998. Executive represents, warrants and agrees that entering into the
instant Agreement, and the employment relationship with the Company, does not
constitute a termination without cause by CELLIT, Inc. of Executive as that term
is used in the Amended and Restated Employment Agreement. No modification or
variation to this Agreement shall be deemed valid unless in writing and signed
by the Company and Executive.
13.4 Executive does not have the right to assign or delegate his rights
or obligations hereunder to any other person and this Agreement shall be binding
upon Executive's heirs, executors, administrators and legal representatives. The
Company has the right to assign this Agreement by operation of law or otherwise,
without notice, to any entity which acquires by merger or otherwise a majority
voting interest in Company. This Agreement shall inure to the benefit of the
successors and assigns of the Company.
13.5 Executive represents and warrants to the Company that he is not
under any obligations to any person, firm, corporation, or other business entity
other than the Company, and has no other interest which is inconsistent or in
conflict with this Agreement, or which would prevent, limit or impair, in any
way, the performance by him of any of the covenants hereunder or his duties in
his employment with the Company. Executive has not entered into, and shall not
enter into, any agreement either oral or written in conflict herewith.
13.6 Any waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other
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provision hereof. In addition, any amendment to or modification of this
Agreement or any waiver of any provision hereof must be in writing and signed by
the Company and Executive.
13.7 The parties agree that each provision and the subparts of each
provision herein shall be treated as a separate and independent clause, and the
unenforceability of any one clause shall in no way impair the enforceability of
any of the other clauses of the Agreement. Moreover, if one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to scope, activity, subject or otherwise, so as to be
unenforceable by law, such provision or provisions shall be construed by the
appropriate judicial body by limiting or reducing it or them, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear. The parties hereby further agree that the language of all parts of
this agreement shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against either of the parties.
13.8 The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
13.9 Executive acknowledges and agrees that the Company conducts
business throughout the United States and that the Company has an interest in
the uniform interpretation and enforcement of its Employment Agreements.
Accordingly, the Company and Executive acknowledge and agree that this Agreement
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts and shall in all respects be interpreted, enforced
and governed under the internal and domestic laws of such state, without giving
effect to the principles of conflicts of laws of such state.
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AGREED AND ACCEPTED:
Employee: /s/ Xxxx Xxxxxx Date: 1/10/02
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Xxxx Xxxxxx
Witness: /s/ Xxxx Xxxxxxx Date: 1/10/02
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Company: Davox Corporation
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: VP, General Counsel & Secretary
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APPENDIX - TITLE/PURPOSE OF DEVELOPMENTS
The following is a complete list of all Developments and the purpose of
those Developments:
X No Developments
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________ See Below
Developments and purpose:
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/s/ Xxxx Xxxxxx
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Employee Signature
Xxxx Xxxxxx
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Print Name
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