EXHIBIT 10.25
AGREEMENT
THIS AGREEMENT is made and entered into effective as of January 12, 1998,
by and between Brite Voice Systems, Inc. ("Company") and Xxxxxxx X. Xxxxxxx
("Xxxxxxx").
WHEREAS, Xxxxxxx is currently a full-time employee of the Company serving
in the capacity of Chairman of the Board; and
WHEREAS, Xxxxxxx has indicated his intention to resign his employment with
the Company for personal reasons; and
WHEREAS, the Company wishes to retain Xxxxxxx for the performance of
certain consulting services and Xxxxxxx has agreed to provide said services; and
WHEREAS, the Company and Xxxxxxx desire to document the terms and
conditions of their agreement with respect to the foregoing.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants and benefits herein set forth, the parties agree as follows:
1. TERMINATION OF EMPLOYMENT. Xxxxxxx'x employment with the Company as
Chairman of the Board shall terminate on January 12, 1998.
2. SEVERANCE; RELOCATION EXPENSE. The Company shall pay Xxxxxxx the sum
of $105,000 as severance, which amount, less applicable and required
holdings, shall be paid on or before January 23, 1998. In addition,
the Company shall reimburse Xxxxxxx in an amount not to exceed $10,000
for the costs of relocating his furniture, automobiles and other
property from his home in Orlando, Florida to Wichita, Kansas, upon
presentation of invoices for such costs.
3. RELEASE. Except for the obligations specifically assumed by the
Company in Sections 2, 4 and 5 hereof, Xxxxxxx releases and forever
discharges the Company, together with all past, present and future
agents or employees, directors and other persons, firms and
corporations in any way connected or related to the Company, from all
claims, liabilities, demands, damages, causes of action, agreements,
promises and rights of action of whatever kind or nature arising out
of, or in any way connected with, directly or indirectly, his
employment or termination of his employment with the Company, and this
Agreement constitutes settlement in full thereof.
4. HEALTH INSURANCE. The Company agrees to use its commercially
reasonable efforts to cause participation in any group health
insurance plan made available to the Company's employees to be made
available to Xxxxxxx during the period that he serves as a director of
the Company. If Xxxxxxx elects to participate in the Company's group
health insurance plan he shall pay that portion of each health
insurance premium as shall be required of other participants under the
plan.
5. CONSULTING SERVICES.
(a) GENERAL. The Company hereby contracts to engage the
services of Xxxxxxx as an independent contractor consultant to
the Company, to render consulting services to the Company to
assist the Company in its efforts to develop new business
concepts which expand and complement the Company's existing
business. Any proposal developed by Xxxxxxx during the term
hereof shall be presented to the Company by written memorandum
delivered to the President of the Company. Any business
development shall be subject to the Company's acceptance and
approval, in the Company's sole discretion, and Xxxxxxx shall
have no authority to contract for or to bind the Company to any
agreement or obligation.
(b) TERM. The term of this Agreement shall begin on the
effective date hereof and shall continue until July 1, 1998.
(c) COMPENSATION. As compensation for the consulting services
rendered to the Company, Xxxxxxx shall be paid the sum of
$50,000, which shall be paid in equal amounts on the last day of
each month during the term hereof.
(d) EXTENT OF SERVICES; USE OF COMPANY FACILITIES. Xxxxxxx shall
render services hereunder at the times and in the manner Xxxxxxx
believes are necessary and appropriate in order to accomplish the
purpose of this Agreement. For the performance of services
hereunder, Xxxxxxx shall be entitled to the use of the office
currently occupied by him at the Company's facility at 0000 Xxxx
00xx, Xxxxxxx, Xxxxxx, and shall be provided telephone,
facsimile, secretarial and administrative support as may be
reasonably required; provided, however, that Xxxxxxx shall not
request the support or assistance of any non-clerical employee of
the Company without the prior written approval of the President
of the Company.
(e) EXPENSES. The Company shall reimburse Xxxxxxx for all
direct out-of-pocket expenses incurred by Xxxxxxx in providing
consulting services hereunder, provided that expenses reasonably
anticipated to exceed $100.00 per day (such as travel, meals or
lodging) shall be authorized in advance by the President of the
Company.
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(f) DISCLOSURE OF INFORMATION. Xxxxxxx acknowledges that, as a
result of his services hereunder, and as a result of his prior
position with the Company, he has and will be making use of,
acquiring and/or adding to confidential information, trade
secrets and know-how of a special and unique nature and value
relating to certain aspects of the Company's business and such
matters as the Company's assets, business prospects, confidential
reports and lists of customers, as well as the nature and type of
services rendered by the Company. As a material inducement to
the Company to enter into this Agreement and to pay to Xxxxxxx
the compensation provided for herein, Xxxxxxx covenants and
agrees that he shall not, at any time during or following the
term of this Agreement, directly or indirectly, divulge or
disclose, for any purpose whatsoever, any such confidential
information, trade secrets or know-how which he now possesses or
obtains pursuant to his services hereunder. In the event of a
breach or threatened breach by Xxxxxxx of any of the provisions
of this Section 6, the Company, in addition to and not in
limitation of any other rights, remedies or damages available to
the Company, at law or in equity, shall be entitled to a
permanent injunction in order to prevent or restrain any such
breach by Xxxxxxx or by Xxxxxxx'x partners, agents,
representatives, servants, employers, employees and/or any and
all persons directly or indirectly acting for or with him.
(g) DEATH OR DISABILITY. If Xxxxxxx should die or become
disabled so that he cannot perform his duties hereunder during
the term of this Agreement, the obligations of the Company shall
continue hereunder, and the payments described in paragraph (c)
hereof shall be made to Xxxxxxx or his estate.
(h) INDEPENDENT CONTRACTOR. Notwithstanding anything herein
contained to the contrary, it is the purpose and intent hereof to
establish between the Company and Xxxxxxx a relationship of an
independent contractor, and all liabilities between the parties
shall be construed by application of the law of independent
contractor and not that of principal and agent. Xxxxxxx is not an
employee of the Company for any purpose and the Company is
interested only in the results obtained by Xxxxxxx. Xxxxxxx does
not have, nor shall Xxxxxxx hold himself out as having, any
right, power or authority to create any contract or obligation,
either express or implied, on behalf of, in the name of, or
binding upon the Company, unless the Company's authorized
representatives shall consent thereto in writing, it being the
express intention of the parties that all such arrangements
discussed or negotiated by Xxxxxxx shall be subject to the
Company's final approval.
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(i) DELEGATION. Xxxxxxx acknowledges that the Company desires to
obtain the benefit of Xxxxxxx'x own personal efforts. Xxxxxxx is
not entitled to delegate any of his duties under this Agreement
or to appoint any sub-agent in the performance of this Agreement.
6. AGREEMENT NOT TO COMPETE. Xxxxxxx covenants and agrees that, for a
period of 18 months from the effective date of this Agreement, he
shall not in any manner compete with the Company with respect to any
line of business conducted by the Company either as of the date of
this Agreement or during the term of the consulting period provided
for in Section 5 hereof.
This Agreement shall prevent Xxxxxxx, directly or indirectly, on
Xxxxxxx'x own behalf or as an employee, officer, agent, director,
partner, consultant, lender, or advisor, during the period covered by
this Agreement, from forming, owning, joining, controlling, financing,
or otherwise participating in the ownership or management of, or being
otherwise affiliated with, any person or entity engaged in the type of
business prohibited by this Agreement. During the period covered by
this Section 6, Xxxxxxx shall not permit any person or entity (other
than the Company) of which Xxxxxxx is a shareholder or partner or in
which Xxxxxxx has an ownership interest, to engage in any type of
business prohibited by this Section 6. Notwithstanding any other
provision herein, the parties agree that Xxxxxxx may, during the
period covered by Section 6, invest Xxxxxxx'x personal, private assets
as a passive investor in not more than one percent (1%) of the total
outstanding shares of any publicly traded company engaged in a
competing business, so long as Xxxxxxx does not participate in the
management or operations of the affairs of such company.
Xxxxxxx has carefully read and considered the provisions of this
Section 6 and, having done so, agrees that the restrictions set forth
herein, including, but not limited to, the time period of the
restriction and the scope of the restriction, are fair and reasonable
and are reasonably required for the protection of the interests of the
Company.
In the event that, notwithstanding the foregoing, any part of the
covenants set forth in this Section 6 shall be held to be invalid or
unenforceable, the remaining parts thereof shall nevertheless continue
to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein. In the event that any provision
of this Section 6 relating to the time period and/or scope of
restrictions shall be declared by a court of competent jurisdiction to
exceed the maximum time period or area as such court deems reasonable
and enforceable, said time period and/or areas of restrictions shall
be deemed to become and thereafter be the maximum time period and/or
scope which such court deems reasonable and enforceable.
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Any provision hereof otherwise prohibited by or unenforceable under
any applicable law or public policy in any jurisdiction which cannot
be reformed in accordance with the provisions herein, shall, as to
such jurisdiction, be ineffective without affecting any other
provision of this Agreement, or shall be deemed to be severed or
otherwise modified to conform with such law or public policy; and the
remaining provisions of this Agreement shall remain in force, provided
that the purpose of this Agreement can be effected. To the full
extent, however, that the provisions of such applicable law or public
policy may be waived, this Agreement shall be deemed to be a waiver
thereof. The parties hereto understand and agree that all the
covenants set forth herein are and shall be separately enforceable,
each to the full extent permitted by applicable law.
If it should become desirable or necessary for the Company to seek
compliance with this Section 6 by judicial proceedings, the period
during which Xxxxxxx shall comply with its provisions shall extend to
the first anniversary of the date of the final, nonappealable order
requiring such compliance.
It is agreed that the Company would be irreparably damaged by reason
of any violation of the provisions of this Agreement, and that any
remedy at law for a breach of the provisions of this Agreement would
be inadequate. Therefore, the Company shall be entitled to seek
injunctive or other equitable relief in a court of competent
jurisdiction against Xxxxxxx, Xxxxxxx'x agents, employees, affiliates,
partners, or other associates, for any breach or threatened breach of
this Agreement, without the necessity of proving actual monetary loss.
It is expressly understood that the remedy described herein shall not
be the exclusive remedy of the Company for any breach of this
Agreement, and the Company shall be entitled to seek such other relief
or remedy at law or in equity to which it may be entitled as a
consequence of any breach of this Agreement.
7. NOTICE. Any notice permitted or required by the provisions of this
Agreement shall be in writing and shall be deemed to have been given
when personally delivered, when delivered by recognized overnight
courier or, whether or not actually received, three business days
after being deposited in the United States mail by registered or
certified mail, return receipt requested, with proper postage prepaid
thereon, addressed as follows:
If to Company: Brite Voice Systems, Inc.
Attn: Xxxxx X. Xxxxxxx
000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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If to Xxxxxxx: Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxxx Xxxx, #00
Xxxxxxx, XX 00000
or to such other address as either party shall furnish the other in
accordance with the provisions of this paragraph.
8. MISCELLANEOUS.
(a) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
(b) BURDEN AND BENEFIT. This Agreement shall be binding upon,
and shall inure to the benefit of, the Company and Xxxxxxx, and
their respective heirs, personal and legal representatives,
successors and assigns.
(c) GOVERNING LAW. This Agreement shall be construed in
accordance with, and the rights and liabilities of the parties
hereto shall be governed by the laws of the State of Florida.
(d) ENTIRE AGREEMENT. This Agreement contains the entire
Agreement and understanding by and between the parties hereto,
and no representation, promise, agreement or understanding not
contained herein shall be of any force and effect. No change or
modification hereof shall be valid or shall be binding unless the
same is in writing and signed by the party intended to be bound.
(e) WAIVER. No waiver of any right under this Agreement shall
be deemed effective unless the same is set forth in a writing
signed by the party giving such waiver, and no waiver of any
right shall be deemed to be a waiver of any such right, or any
other right hereunder, in the future.
(f) CAPTIONS. The captions herein have been inserted for
convenience of reference only and are not to be used in the
interpretation of any provision hereof.
(g) SEVERABILITY. The provisions of this Agreement shall be
deemed severable, and the invalidity or unenforceability of any
one or more of the provisions hereof shall not affect the
validity or enforceability of the other provisions hereof.
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IN WITNESS WHEREOF the parties have executed this Agreement this 10th day
of January, 1998.
BRITE VOICE SYSTEMS, INC.
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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