1
EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made this 1st
day of November, 1996 by and between Voice Plus, Inc., a California corporation
("Employer"), and Xxxxx X. Xxxxx, an individual resident of the State of Arizona
("Employee").
WITNESSETH
WHEREAS, pursuant to an Agreement and Plan of Merger dated as
of October 25, 1996, Employer has agreed to a merger whereupon it will become a
wholly owned subsidiary of NHancement Technologies inc., a Delaware corporation
(the "Merger"); and
WHEREAS, upon consummation of the Merger, Employer desires to
employ Employee and Employee agrees to be employed by Employer for the period
and upon and subject to the terms herein provided.
THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants and agreements contained herein and intending to be legally
bound, Employer and Employee agree as follows:
1. TERMS OF EMPLOYMENT
a) Term. Employer agrees to employ Employee for a period of
two (2) years commencing on the effective date of the Merger (the "Term"), and
for such additional term as may be agreed to in writing by the Parties hereto,
unless sooner terminated pursuant to Section 6 below.
b) Compensation. Employer will pay Employee a base salary for
her services during the term of her employment hereunder at an annual rate of
Sixty-Five Thousand Dollars ($65,000), payable in equal monthly installments in
accordance with Employer's standard practice, subject only to such payroll and
withholding deductions as are required by law, and subject to the same annual
incremental increase as is applicable to Employer's personnel with
responsibilities similar to those of Employee ("Similar Personnel").
c) Bonus and Commissions.
i) Commissions. During the Term hereof, Employer agrees to pay
Employee commissions based on a negotiated Sales Manager Compensation Plan
(the "Plan"). The Plan for the first year of the Term is attached hereto as
EXHIBIT A.
2
ii) Annual Performance Bonus. During the
Term hereof, Employer agrees to pay Employee an
annual performance-based bonus based on Employee
meeting negotiated performance targets set forth in
the Plan.
d) Insurance. Employer agrees to provide Employee with health,
hospitalization, life and disability insurance coverage in accordance with
coverage provided or offered to Similar Personnel.
e) Provision of Vehicle. Employer agrees that Employee shall
be provided with a vehicle, owned or leased by Employer, for her exclusive use
in connection with her employment hereunder.
2. OFFICE AND DUTIES. Employee shall have the title of Vice
President Sales Western Region and shall have responsibility, subject to the
direct supervision of Employer's President, for overseeing all sales and
marketing activities of Employer for its Western Region. Employee shall perform
such other tasks, not inconsistent with his position, as may from time to time
be assigned to her. Employee shall devote all of her business time, labor,
skill, undivided attention and best ability to the performance of her duties
hereunder in a manner which will faithfully and diligently further the business
and interests of Employer. During the term of her employment, Employee shall not
directly or indirectly pursue any other business activity without Employer's
prior written consent. Employee agrees that she will travel to whatever extent
is reasonably necessary in the conduct of Employer's business.
3. REIMBURSEMENT OF EXPENSES. Upon presentation of appropriate
documentation, Employee shall be entitled to be reimbursed in accordance with
such procedures as Employer has heretofore or may hereafter establish, for
reasonable and necessary expenses incurred by her in connection with the
performance of her duties hereunder.
4. VACATION DURING EMPLOYMENT. Employee shall be entitled to
such reasonable vacations as may be allowed by Employer in accordance with its
customary practice with respect to Similar Personnel.
5. ADDITIONAL BENEFITS. In addition to the benefits set forth
in Sections 1, 3 and 4, Employee shall be entitled to receive such fringe
benefits as are generally available to Similar Personnel, but Employer shall not
be required to establish or continue any such benefits or to take any action to
cause Employee to be eligible for any of such benefits on a basis more favorable
than that applicable to Similar Personally generally.
6. TERMINATION OF EMPLOYMENT.
a) Notwithstanding any other provision of this
Agreement, Employee's employment may be terminated:
-2-
3
i) By Employer for cause upon thirty (30) days' notice to
Employee setting forth in writing its election to terminate the
Agreement and the specific reasons for termination. For purposes of
this Agreement, "Cause" justifying the termination of this Agreement by
Employer is defined as: (1) willful misconduct or malfeasance relative
to the promotion and best interests of Employer's business; (2) willful
failure or refusal to perform the services required of her hereby, or
to carry out proper directions by Employer with respect to the services
to be rendered by her hereunder or the manner of rendering such
services, her willful misconduct in the performance of her duties
hereunder; and/or (3) Employee's conviction of a crime that either
results in imprisonment or involves defalcation or other activities
injurious to Employer; provided, however, that Employee shall have
thirty (30) days from the date of such notice to cure any default
pursuant to this subsection (a) other than a conviction of a crime.
ii) By Employer upon thirty (30) days' notice to Employee if
she should be prevented by illness, accident or other disability
(mental or physical) from discharging her duties hereunder for one or
more periods totaling six (6) months during any consecutive twelve (12)
month period.
iii) In the event of Employee's death during the term of her
employment.
iv) By Employer for any material breach by Employee of any of
the terms of this Agreement, if such material breach has not been
substantially cured within thirty (30) days following written notice of
such breach specifying the breach relied on for such termination, and
failure to cure such breach within such period or, if cure cannot
reasonably be effected within such 30-day period, if Employee does not
commence to cure the breach within such 30-day period and thereafter
pursue such cure continuously and with due diligence, until cure has
been fully effected.
b) Termination pursuant to subsection (a) shall
terminate all obligations of the parties hereunder except for the obligations
set forth in Sections 7 and 8.
c) In the event of a termination, other than pursuant
to subsection (a), during the term of this Agreement, Employer's obligation to
pay compensation pursuant to Section 1(b) hereunder for the duration of the Term
shall continue.
7. ASSIGNMENT OF INVENTIONS: WORK PRODUCT.
a) Employee further agrees that during his employment
she shall not make, use or permit to be used any notes, memoranda, reports,
lists, records, drawings, sketches, specifications, software programs, data,
documentation or other materials of any nature relating to any matter within the
scope of the business of Employer or concerning any of its dealings or
-3-
4
affairs otherwise than for the benefit of Employer. She further agrees that she
shall not, after the termination of her employment, use or permit to be used any
such notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials, it
being agreed that all of the foregoing shall be and remain the sole and
exclusive property of Employer and that immediately upon the termination of her
employment she shall deliver all of the foregoing, and all copies thereof, to
Employer, at its main office.
b) If at any time or times during her employment,
Employee shall (either alone or with others) make, conceive, discover or reduce
to practice any invention, modification, discovery, design, development,
improvement, process, software program, work of authorship, documentation,
formula, data, technique, know-how, secret or intellectual property right
whatsoever or any interest therein (whether or not patentable or registrable
under copyright or similar statutes or subject to analogous protection) (herein
called "Developments") that (i) relates to the business of Employer or, any
customer of or supplier to Employer or any of the products or services being
developed, manufactured or sold by Employer or which may be used in relation
therewith, (ii) results from tasks assigned her by Employer or (iii) results
from the use of premises or personal property (whether tangible or intangible)
owned, leased or contracted for by Employer, such Developments and the benefits
thereof shall immediately become the sole and absolute property of Employer and
its assigns, and Employee shall promptly disclose to Employer (or any persons
designated by it) each such Development and hereby assigns any rights she may
have or acquire in the Developments and benefits and/or rights resulting
therefrom to Employer and its assigns without further compensation and shall
communicate, without cost or delay, and without publishing the same, all
available information relating thereto (with all necessary plans and models) to
Employer.
c) Upon disclosure of each Development to Employer,
Employee will, during her employment and at any time thereafter, at the request
and cost of Employer, sign, execute, make and do all such deeds, documents, acts
and things as Employer and its duly authorized agents may reasonably require:
i) to apply for, obtain and vest in the name of
Employer alone (unless Employer otherwise directs) letters
patent, copyrights or other analogous protection in any
country throughout the world and when so obtained or vested to
renew and restore the same; and
ii) to defend any opposition proceedings in respect
of such applications and any opposition proceedings or
petitions or applications for revocation of such letters
patent, copyright or other analogous protection.
d) In the event Employer is unable, after reasonable
effort, to secure Employee's signature on any letters patent, copyright or other
analogous protection relating to a Development, whether because of any physical
or mental incapacity or for any other reason whatsoever, Employee hereby
irrevocably designates and appoints Employer and its duly authorized officers
and agents as her agent and attorney-in-fact, to act for and in her behalf and
-4-
5
stead to execute and file any such application or applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright or other analogous protection thereon with the same legal
force and effect as if executed by Employee.
8. NON-COMPETITION; CONFIDENTIALITY.
a) No Solicitation of Customers. Employee covenants
and agrees that she will not, directly or indirectly, until the lapse of two (2)
years after her termination pursuant to Sections 1 or 6, without the prior
written approval of Employer, call upon, cause to be called upon, solicit or
assist in the solicitation of, any customer or potential customer of Employer
for the purpose of diverting any existing or future business of such customers
to a Competing Business.
b) No Hiring of Employees. Employee covenants and
agrees that she will not, directly or indirectly, until the lapse of two (2)
years after her termination pursuant to Sections 1 or 6, without the prior
written approval of Employer, employ, engage, or seek to employ or engage,
directly or indirectly, any employee of Employer.
c) Confidentiality. Employee will not, without
Employer's prior written approval reveal to any person or entity any of the
trade secrets or confidential information concerning the organization, business
or finances of Employer or of any third party which Employer is under an
obligation to keep confidential (including but not limited to trade secrets or
confidential information respecting inventions, products, designs, methods,
know-how, techniques, systems, processes, software programs, works of
authorship, customer lists, projects, plans and proposals), except as may be
required in the ordinary course of performing her duties as an employee of
Employer, and she shall keep secret all matters entrusted to her and shall not
use or attempt to use any such information in any manner which may injure or
cause loss or may be calculated to injure or cause loss whether directly or
indirectly to Employer.
d) Equitable Remedies. The services to be rendered by
Employee and the information disclosed to Employee prior to and during the term
hereof are of a unique and special character, and any breach of Sections 7 or 8
hereof will cause Employer immediate and irreparable injury and damage, for
which monetary relief would be inadequate or difficult to quantify. Therefore,
Employer will be entitled to, in addition to all other remedies available to it,
injunctive relief and specific performance to prevent a breach and to secure the
enforcement of all provisions of Sections 7 and 8 hereof. Injunctive relief may
be granted immediately upon the commencement of any such action.
9. PROPERTY OF EMPLOYER. All books, documents, lists and
records pertaining to Employer's business (collectively, the "Records"), whether
the Records are written, typed, printed, contained on microfilm, contained on
computer disc, contained in tape or are set forth in some other medium of
expression, are the sole and exclusive property of Employer. Upon the
termination of Employee's employment with Employer, Employee shall promptly
return to
-5-
6
Employer all Records and copies thereof that are in Employee's possession or
that Employee has removed from Employer's premises.
10. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes
the entire understanding between the parties with respect to the subject matter
contained herein and supersedes any prior understandings and agreements among
them respecting such subject matter. This Agreement may be amended,
supplemented, or terminated only by a written instrument duly executed by both
parties.
11. HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not affect its interpretation.
12. GENDER; NUMBER. Words of gender may be read as masculine,
feminine, or neuter, as required by context. Words of number may be read as
singular or plural, as required by context.
13. SEVERABILITY. If any provision of this Agreement is held
illegal, invalid, or unenforceable, such illegality, invalidity, or
unenforceability shall not affect any other provisions hereof. This Agreement
shall, in such circumstances, be deemed modified to the extent necessary to
render enforceable the provisions hereof.
14. NOTICES. All notices, requests, demands, waivers,
consents, approvals, or other communications required or permitted hereunder
shall be in writing and shall be deemed to have been given if delivered
personally, sent by telegram, telex or sent by certified or registered mail or
same day or overnight courier service, postage prepaid, return receipt
requested, to the following addresses:
If to Employer, to:
Voice Plus, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
With a copy to:
NHancement Technologies Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, General Counsel
-6-
7
If to Employee, to:
Xxxxx X. Xxxxx
0000 X. Xxxxxx, Xxxxx 00
Xxxxxxx, XX 00000
Notice of any change in any such address shall also be given in the manner set
forth above. Whenever the giving of notice is required, the giving of such
notice may be waived by the party entitled to receive such notice.
15. WAIVER. The failure of any party to insist upon strict
performance of any of the terms or conditions of this Agreement shall not
constitute a waiver of any of his/its rights hereunder.
16. ASSIGNMENT. Employee may not assign any of his rights or
delegate any of his obligations hereunder, and such purported assignment or
delegation shall be void.
17. SUCCESSORS AND ASSIGNS. This Agreement binds, inures to
the benefit of, and is enforceable by the successors and permitted assigns of
the parties and does not confer any rights on any other persons or entities,
except as expressly provided herein.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH ARIZONA LAW EXCEPT FOR ANY ARIZONA
CONFLICT-OF-LAW PRINCIPLE THAT MIGHT REQUIRE THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION.
SUBMISSION TO JURISDICTION; SERVICE; WAIVERS. WITH
RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT, EACH PARTY HERETO (A)
IRREVOCABLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE JURISDICTION OF THE
STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF MARICOPA, ARIZONA, AND
APPELLATE COURTS THEREFROM, (B) AGREES THAT THE VENUE FOR ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE EXCLUSIVE TO
AND LIMITED TO SUCH COURTS, AND (C) IRREVOCABLY WAIVES ANY OBJECTION IT MAY HAVE
AT ANY TIME TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT, IRREVOCABLY WAIVES
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER IRREVOCABLY WAIVES THE RIGHT
TO OBJECT, WITH RESPECT TO SUCH CLAIM, SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER IT. EACH PARTY HERETO
HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION
OR PROCEEDING IN ANY OF THE AFORESAID COURTS BY THE MAILING OF COPIES
-7-
8
OF SUCH PROCESS TO THE OTHER PARTY OR PARTIES HERETO, BY CERTIFIED OR REGISTERED
MAIL AT THE ADDRESS SPECIFIED IN PARAGRAPH 12.
19. ATTORNEYS' FEES. In the event it becomes necessary for
either party hereunder to employ an attorney to enforce or interpret the
Agreement, the prevailing party, if any, shall be entitled to recover reasonable
attorneys' fees, costs and necessary disbursements from the opposing party.
[The remainder of this page intentionally left blank.]
-8-
9
IN WITNESS WHEREOF, the parties hereto have executed this
EMPLOYMENT AGREEMENT as of the date first above written.
EMPLOYER:
VOICE PLUS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxxx, President
EMPLOYEE:
/s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx
-9-
10
VOICE PLUS, INC.
1996 SALES MANAGER COMPENSATION PLAN
This Compensation Plan defines the basis for which Voice Plus, Inc.,
("VPI") Sales Managers are paid for the sales of company products. This Plan is
effective for a period of twelve months commencing March 1, 1996. It is the
SOLE plan for the payment of salaries, commissions and bonuses to all Sales
Managers.
The Compensation Agreement between VPI and each VPI Sales Manager
consists of the terms of this Plan and the terms stated in that sales manager's
completed and executed "Sales Manager and Territory Compensation Schedule",
which form is attached as Appendix A.
I. DEFINITIONS
a. "Total Order Value" is the dollar amount of a system sale as
indicated on a valid, signed purchase order or purchase
agreement accepted by VPI.
b. The "Net Order Value" is the Total Order Value minus the
following items or changes on which commissions are not
receivable.
1. Message Waiting Light Devices;
2. Discounted Installation charges;
3. Transportation and packing charges;
4. Any and all taxes charged on the sale; and
5. Trade-In Credit
6. Literature, User Guides, etc.
c. A "Sale" is deemed to occur only upon completion of all of the
following:
1. VPI's receipt of a valid purchase order or signed
purchase agreement;
2. VPI's formal booking of the order;
3. Shipment of the order;
4. Signed Acceptance of Equipment by Purchaser; and
5. Receipt of payment from customer.
A sale is deemed to be "In Process" during the period that
some, but not all, of the foregoing events have been completed.
II. TERRITORY AND ACCOUNTS
a. The Sales Manager will cover the territory and vertical accounts
assigned by the President of VPI, as set forth in Appendix A.
The President, may, in his sole discretion, make changes in
assignments. All assignments and changes will be in writing.
b. The Sales Manager is specifically prohibited from selling to the
following accounts or classes of accounts, unless otherwise
authorized in writing by the President:
1. Any firm or individual whom the Sales Manager knows, or
has reason to know or otherwise suspect, is purchasing
any part of the system for delivery outside the
continental United States.
2. Any firm outside the assigned sales territory or
vertical market, unless specifically authorized in
writing by the President or Sales Management.
11
III. COMPENSATION
a. Base Salary
The amount of base salary, if any, payable to Sales Manager, is
stated on Appendix A.
b. Commissions
Sales Manager entitled to commissions at the rates stated in
Appendix A based on the Net Order Value of all Sales by the
Sales Manager. A commission is not earned until completion of
the Sale, as defined herein. The Commission which the Sales
Manager would otherwise have earned on a Sale which is not
completed within 60 days of the invoice date may be modified or
forfeited.
c. Payment
Commissions will be paid in the middle of month pay cycle of the
month following completion of a Sale. Base Salary, if any, will
be paid in our regular payroll cycle.
VPI reserves the right to amend this Section III at any time,
by written notice, receipt of which shall be acknowledged by all
sales personnel.
IV. SALE CANCELLATIONS
Upon cancellation of a Sale on which commission and/or bonus has
previously been paid, the commission and bonus paid the Sales Manager
will be debited against subsequent commissions and bonuses earned by
that Sales Manager until fully liquidated.
V. INTER-TERRITORIAL SALES
At the time it becomes known that a sales effort is being made which, if
successful, will result in delivery and installation in another
territory, the Sales Manager must immediately notify the President, who
will make a determination regarding the appropriate commission/bonus
split between or among the Salespersons, if applicable. Such
determination will be based on an equitable division of revenue value
according to the degree of involvement in the Sale by each of the
affected parties. The normal division will be forty percent (40%) to the
Salesperson from the installing region and sixty percent (60%) to the
Salesperson from the selling region.
The total amount of commission/bonus paid to one or more salespersons
will not exceed the amount that would have been normally paid to a
single salesperson.
VI. RESIGNATION OR TERMINATION
Upon termination of employment with VPI, whether voluntary or
involuntary, commissions earned and payable to the Sales Manager under
the Plan will be paid. With respect to Sales In Process at the time of
termination, employee will be paid a portion of the Commission he/she
would have otherwise been entitled, allocated according to the
proportion of work completed, which allocation is to be determined in
the sole discretion of the President of VPI and such commissions will be
paid immediately upon completion of the Sale. The following schedule
defines the value associated with each step of the Sale in Progress.
Payment to a terminated Sales Manager will follow this schedule:
Booked 30%
Shipped 20%
Cutover 20%
Accepted & Paid 30% _______
Initial
Upon termination of employment the Sales Manager shall promptly return
to the Company all Company property, cash advances, correspondence,
customer files, and other papers and materials in his possession which
relate to the business of the Company.
VII. GENERAL PROVISIONS
a. Taxes
All earnings, whether salary, car allowance, commission or
bonus, will be subject to applicable withholding of federal,
state, and local taxes.
12
b. Benefits
The Sales Manager is eligible for the standard VPI Benefits
Package for exempt personnel in effect during the term of Sales
Manager's employment.
c. Acknowledgement
Two copies of this Plan and of the completed Sales Manager
Territory Compensation Schedule in the form of Appendix A, shall
be forwarded to each participant. The Sales Manager shall sign
one copy of the complete Appendix A and the acknowledgement of
receipt and acceptance at the end of the Plan, and return these
to the Company.
d. Customer Agreement
The Sales Manager is not authorized and hereby agrees not to
alter or amend in any way a contract or agreement between the
Company and a customer, either before or after execution of said
documents.
e. Payments to Customer or Customer Representatives
The Sales Manager shall not pay, assign, or give any part of the
commission or any other money, property or thing of value to any
agent, customer or representative of the customer or any other
person as an inducement or reward for assistance in making a
Sale. Gifts and entertainment above nominal value shall not be
given to a customer, agent or representative except in
accordance with the Company's written policy.
VII. AMENDMENT OF PLAN
This Plan may be amended as VPI, in its sole judgement, considers
modifications to be necessary or desirable. However, no modification
will reduce any commission or bonus which has been previously earned by
a Salesperson under this Plan, nor shall any modified plan be
retroactive. The Salesperson will be advised of any amendment in
writing.
IX. AUTHORITY OF SALES PERSONNEL
The Sales Manager is not authorized to sign binding agreements of any
kind on behalf of VPI.
X. VIOLATION OF PROVISIONS OF THE PLAN
Violation of any of the provisions of this Plan may, in VPI's
discretion, be grounds for termination of employment.
ATTACHMENT: APPENDIX A, Territory and Compensation Schedule
ACKNOWLEDGEMENT
I acknowledge receipt of a copy of the VPI 1996 Sales Manager's Compensation
Plan, together with a completed Appendix A, Territory and Compensation
Schedule, which jointly define the terms of my compensation agreement with the
Company and agree to abide by all its terms.
BY: ______________________________ DATE: _______________
13
APPENDIX A
VOICE PLUS, INC. TERRITORY AND COMPENSATION SCHEDULE
Sales Manager: Xxxxx X. Xxxxx
Territory: Western U.S.
Quarterly Quota: $300,000
Yearly Quota: $1,500,000 (Individual)
Base Salary: $65,000
Auto: Company vehicle provided
Medical Benefits: Standard: Accept _____ Reject _____
Expenses: Reasonable business related expenses will be reimbursed
upon approval of manager.
COMMISSIONS
New Systems & Parts
8% Of Sale at 100% of Retail Pricing (Retail is 2x + Installation)
6% Of Sale at 99-90% of Retail
5% Of Sale at 89-85% of Retail
10% Of GM less than 85% of Retail
Reconditioned Equipment & Parts
8% Of Sale
Rentals
10% Of monthly base rental fee, paid monthly
Maintenance
10% Of paid maintenance fee for a new VPI customer.
Service
6% If over $2,500 and submitted to order processing as a scheduled event.
Requests made directly to the Operations Dept. are excluded.
Managerial Override:
25% Of commission paid to Sales Personnel, under direct report
(except Sohaski).
25% Of Commissions paid to Sohaski as calculated under standard rather than
gross margin commission plan.
Other
Health Plan Available, with employee contribution
401K Plan Available
Long Term Disability, Life Insurance Available
Note: Discounted Service is not commissionable.
By: ______________________________ Date: _______________
