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EXHIBIT 10.16
[INTERVOICE LETTERHEAD]
February 24, 1998
Xx. Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx
Xxxxx, XX 00000
Re: Consulting Services Agreement and General Release
Dear Xxxx:
This letter constitutes an agreement ("Consulting Agreement and Release")
between InterVoice, Inc. (the "Company") and you regarding the consulting
services that you will perform for the Company as set forth herein, and in
further consideration of the payments to be made by the Company as set forth
below, your general release. This Consulting Agreement and Release takes into
account certain requests made by you and your attorney, Xxxx X. Xxxxxxxx, and
replaces the proposed Consulting Agreement and Release dated January 27, 1998.
More specifically, the Company and you do hereby agree as follows:
1. CONSULTING SERVICES. The consulting services you will provide will
consist of such business consultations, marketing analyses, business
introductions, litigation assistance, advice, and other services as the
Company may reasonably request and as shall be consistent with your
previous position as the President and a director of the Company. All of
the consulting services will be provided at times that are mutually
convenient for the Company and you, and the Company expressly recognizes
(and will take into account) that you may be working full time for
another employer. The consulting services hereunder will be provided
during the period of March 1, 1998, through May 31, 1998.
2. PAYMENT. In consideration for such consulting services and your
general release, the Company will pay you the total amount of $77,000.00,
such amount payable in equal installments at the end of each month of the
term hereof, i.e., in the sum of $25,666.67 on March 30, 1998, April 30,
1998, and May 31, 1998. In the event the Company terminates your
consulting services prior to May 31, 1998, any unpaid portion of the
$77,000.00 fee for such services will become immediately due and payable.
If the Company claims or alleges any breach of the terms or conditions of
this Consulting Agreement and Release or of the 1997 Letter Agreement by
you, it shall continue to make all payments set forth in this Section 2
as and when due notwithstanding such claims or allegations. The Company
hereby waives any right of setoff against such payments.
3. RELATIONSHIP TO OTHER AGREEMENTS. This Consulting Agreement and
Release, together with the letter agreement between the Company and you
dated December 17, 1997 (the "1997 Letter Agreement") reflects the
entire agreement and understanding between the Company and you with
respect to your resignation and the termination of your employment under
the Amended and Extended Employment Agreement effective as of March 1,
1996, between the Company and you (the "Employment Agreement"); and no
other amounts or obligations of any
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February 24, 1998
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nature whatsoever are due or owing to you by the Company in connection
with your resignation and the termination of your employment under the
Employment Agreement or otherwise except as set forth in the 1997 Letter
Agreement and this Consulting Agreement. Except as modified hereby, the
1997 Letter Agreement remains in full force and effect. Your
post-employment obligations under the Employment Agreement (including
without limitation your obligations under Section 27) shall remain in
full force and effect in accordance with the terms thereof; provided,
however, the Company hereby releases you from any obligations under the
noncompetition provisions set forth in Section 6 of the Employment
Agreement.
4. GENERAL RELEASE. IN CONSIDERATION OF THE PAYMENT DESCRIBED IN
PARAGRAPH 2 ABOVE, YOU AND YOUR FAMILY MEMBERS, HEIRS, SUCCESSORS, AND
ASSIGNS (COLLECTIVELY THE "RELEASING PARTIES") HEREBY RELEASE, ACQUIT,
AND FOREVER DISCHARGE ANY AND ALL CLAIMS AND DEMANDS OF WHATEVER KIND OR
CHARACTER, WHETHER VICARIOUS, DERIVATIVE, OR DIRECT, THAT YOU OR THEY,
INDIVIDUALLY, COLLECTIVELY, OR OTHERWISE, MAY HAVE OR ASSERT AGAINST: (i)
THE COMPANY; AND (ii) ANY OFFICER, DIRECTOR, SHAREHOLDER, FIDUCIARY,
AGENT, EMPLOYEE, REPRESENTATIVE, INSURER, ATTORNEY, OR ANY SUCCESSORS AND
ASSIGNS OF THE ENTITIES OR PERSONS JUST NAMED (COLLECTIVELY THE "RELEASED
PARTIES"); PROVIDED, HOWEVER, THAT NOTHING CONTAINED HEREIN SHALL BE
DEEMED OR CONSTRUED TO BE A RELEASE OF ANY CLAIM FOR PERFORMANCE OF ANY
UNFULFILLED, FUTURE OBLIGATION OF THE COMPANY CONTAINED EITHER IN THIS
CONSULTING AGREEMENT AND RELEASE OR IN THE 1997 LETTER AGREEMENT, OR A
RELEASE OF ANY RIGHT TO INDEMNIFICATION FROM OR BY THE COMPANY PURSUANT
TO THE PROVISIONS OF THE COMPANY'S ARTICLES OF INCORPORATION OR ITS
BYLAWS, OR CONTAINED IN ANY AGREEMENT BETWEEN THE COMPANY AND YOU WITH
RESPECT TO ANY CLAIM AGAINST YOU BY ANY THIRD PARTY. THIS GENERAL RELEASE
INCLUDES BUT IS NOT LIMITED TO ANY CLAIM OR DEMAND BASED ON ANY FEDERAL,
STATE, OR LOCAL STATUTORY OR COMMON LAW OR CONSTITUTIONAL PROVISION THAT
APPLIES OR IS ASSERTED TO APPLY, DIRECTLY OR INDIRECTLY, TO THE
FORMATION, CONTINUATION, OR TERMINATION OF YOUR EMPLOYMENT RELATIONSHIP
WITH THE COMPANY, EXCEPT WITH RESPECT TO VESTED RIGHTS THAT YOU MAY HAVE
UNDER ANY EMPLOYEE BENEFIT OR INCENTIVE PLAN OF THE COMPANY IN WHICH YOU
WERE A PARTICIPANT. THUS, YOU AND THE OTHER RELEASING PARTIES AGREE NOT
TO MAKE ANY CLAIMS OR DEMANDS AGAINST THE COMPANY OR ANY OF THE OTHER
RELEASED PARTIES SUCH AS FOR WRONGFUL DISCHARGE OR UNLAWFUL EMPLOYMENT
DISCRIMINATION ON THE BASIS OF AGE (UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967 OR ANY SIMILAR STATE LAW) OR ANY OTHER FORM OF
UNLAWFUL EMPLOYMENT DISCRIMINATION, OR FOR ANY PERSONAL INJURY OR DAMAGE
ALLEGEDLY ARISING FROM SUCH ALLEGED WRONGFUL OR UNLAWFUL ACTIONS, WHETHER
BASED ON RIGHTS CLAIMED UNDER STATUTE, IN CONTRACT, OR AT COMMON LAW.
THE EFFECT OF THIS AGREEMENT IS TO RELEASE, ACQUIT, AND FOREVER
DISCHARGE ANY AND ALL CLAIMS AND DEMANDS OF WHATEVER KIND OR CHARACTER
THAT YOU OR ANY OF THE OTHER RELEASING PARTIES MAY NOW HAVE OR HEREAFTER
HAVE OR ASSERT AGAINST THE COMPANY OR ANY OF THE OTHER RELEASED PARTIES
FOR ANY LIABILITY RESULTING FROM, GROWING OUT OF, CONNECTED WITH, OR
RELATED IN ANY WAY TO THE FORMATION, CONTINUATION, OR TERMINATION OF YOUR
EMPLOYMENT AND DIRECTOR
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February 24, 1998
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RELATIONSHIP WITH THE COMPANY (EXCEPT AS TO WHICH THERE IS EXISTING
VESTED ENTITLEMENT). THIS GENERAL RELEASE DOES NOT APPLY TO ANY RIGHTS OR
CLAIMS THAT MAY ARISE AFTER THE DATE THIS AGREEMENT IS EXECUTED.
5. EFFECTIVE DATE. This Consulting Agreement and Release will become
effective and enforceable upon the expiration of seven days after your
execution of it ("Effective Date"). At any time before the Effective
Date, you may revoke your acceptance.
6. TIME FOR CONSIDERATION, AND CONSULTATION WITH ATTORNEY. The
Company's offer set forth in this Consulting Agreement and Release will
expire at 5:00 p.m. on February 24, 1998, a period of more than 21 days
after you were first provided with the terms of the proposed Consulting
Agreement and Release for your consideration. You acknowledge that you
have consulted with and been represented by an attorney in your
consideration of this Consulting Agreement and Release, and that you have
had more than 21 days in which to consider the Company's proposal. You
have the right to consult with and be advised by an attorney of your
choosing before executing this Consulting Agreement and Release, and you
have until the expiration of 21 days from the date on which you receive
this document in which to consider whether you wish to accept the
Company's proposal.
7. KNOWING AND VOLUNTARY AGREEMENT. You acknowledge that you fully
understand the meaning and effect of your action in executing this
Consulting Agreement and Release; and that your agreement to the terms
and execution of this instrument are knowing and voluntary.
8. MISCELLANEOUS AGREEMENTS.
(a) PERSONAL COMPUTERS AND PRINTERS. The Company is giving you the two
personal computers and the printer described in Exhibit A hereto.
(b) RECOMMENDATIONS. The Company will (i) provide you with mutually
agreed favorable recommendations from Xxxxxx X. Xxxxxxx, Chairman of
the Board and Chief Executive Officer, and Xxx-Xxx X. Xxxxxx, Chief
Financial Officer and (ii) cause the members of its Board of
Directors not to make any disparaging and derogatory comments
(whether written or verbal) about you, and upon inquiry to any
member about you, to give favorable responses or recommendations in
line with the recommendation letters to be provided in accordance
with this subparagraph (b).
(c) PUBLIC FILING. You acknowledge and agree that the Company will file
this Consulting Agreement and Release with the Securities and
Exchange Commission and otherwise as required by law.
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Xx. Xxxxxxx X. Xxxxxx
February 24, 1998
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(d) ATTORNEY'S FEES AND EXPENSES. The Company will pay your attorney's
fees and expenses up to a maximum of $2,000.00 in the aggregate.
If this Consulting Agreement and Release correctly sets forth the
understanding between the Company and you, please so indicate by signing below
in the space provided and by obtaining your attorney's signature reflecting his
approval as to form.
Sincerely yours,
INTERVOICE, INC.
By: /s/ XXX-XXX X. XXXXXX
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Xxx-Xxx X. Xxxxxx
Chief Financial Officer
ACCEPTED AND AGREED TO:
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
APPROVED AS TO FORM:
/s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
