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EXHIBIT 10(W.4)
EMPLOYMENT AGREEMENT
(Xxxxxxx X. XxXxxx)
THIS AGREEMENT is entered into on __________________, 1998, between
VOICE POWERED TECHNOLOGY INTERNATIONAL, INC., a California corporation (the
"Company"), and XXXXXXX X. XXXXXX ("Employee").
Employee and Company, in consideration of the covenants and
agreements hereinafter contained, agree as follows with respect to the
employment by the Company of Employee and Employee's future business activities:
1. Employment; Term of Employment. The Company hereby employs
Employee and Employee hereby accepts such employment upon the terms and
conditions hereinafter set forth, effective as of the "Commencement Date" (as
defined hereafter). Subject to the provisions for earlier termination as
hereinafter provided, Employee's term of employment by the Company pursuant to
this agreement shall commence February 1, 1998 ( the "Commencement Date"), and
shall continue thereafter until December 31,1998.
2. Services to be Rendered by Employee.
(a) On and subject to the terms and provisions hereof,
Employee shall be employed as the Company's Vice President of Manufacturing and
Development, subject to the direction of the Board of Directors or a duly
authorized committee thereof from time to time, and subject to the authority and
direction of the the President and Chief Executive Officer of the Company.
Subject to the foregoing, Employee's responsibilities shall include management
of all of the Company's manufacturing, development and quality control
activities, and, Employee shall have such other powers and duties as may be
prescribed by the By-laws, the Board of Directors, or a duly
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authorized committee thereof, and shall perform such executive duties as from
time to time may be decided upon by the Board of Directors, or a duly authorized
committee thereof or the President of the Company. During the term of employment
hereunder, Employee's primary employment location shall be the greater Los
Angeles, Orange, and Ventura County areas.
(b) Employee shall devote substantially all his productive time,
energy and ability to the proper and efficient conduct of the Company's business
during the term of this Agreement. Employee shall not directly or indirectly
render any substantial services of a business, commercial, or professional
nature to any person or organization, other than the Company, whether for
compensation or otherwise, without the prior written consent of the Board of
Directors, or a duly authorized committee thereof, of the Company.
3. Compensation.
(a) For the services to be rendered by Employee during his
employment by the Company, the Company shall pay Employee, commencing as of the
Commencement Date, a yearly Base Salary of One Hundred Thousand Dollars
($100,000). The yearly Base Salary shall be payable in equal installments at
such times as other employees are paid but in any case at least monthly.
(b) The Company shall pay or reimburse Employee for all
expenses normally reimbursed by the Company and reasonably incurred by him in
furtherance of his duties hereunder and authorized by the Company, including,
without limitation, expenses for entertainment, traveling, meals, hotel
accommodations, cellular phone usage, and the like upon submission by him of
vouchers or an itemized list thereof as the Board of Directors may from time to
time adopt and authorize, and as may be required in order to permit such
payments as proper
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deductions to the Company under the Internal Revenue Code of 1986 and the rules
and regulations adopted pursuant thereto now or hereafter in effect.
(c) The Company shall pay to Employee an automobile allowance
of $500 per month for all automobile expenses incurred by Employee, including
fuel, repairs, maintenance, insurance, and any other expenses. Employee shall
pay all such expenses directly, and shall not be accountable to the Company
therefor.
(d) Employee and his immediate family (i.e., spouse and
children under 21 years of age) shall be entitled to participate, at the
Company's expense, in the health insurance plan and other benefit plans and
arrangements the Company may have in effect from time to time for its employees
and executives with salaries and responsibilities comparable to Employee, in
accordance with any policies adopted by the Board of Directors of the Company
with regard thereto from time to time.
(e) During the term of his employment hereunder, Employee
shall be entitled to two (2) weeks paid vacation per annum. Use thereof shall be
in accordance with the Company's policies in effect from time to time..
4. Direct Competition. While employed by the Company and thereafter
(subject to the term described below in this paragraph regarding applicability
of the prohibition in this paragraph to periods after termination of
employment), Employee will neither permit his name to be used by, nor engage in
or carry on, directly or indirectly, either for himself or as a member of a
partnership, or as a stockholder (except as a stockholder of less than one
percent (1%) of the issued and outstanding stock of a publicly held
corporation), investor, officer or director of a corporation or as an employee,
agent, associate or consultant of any person, partnership or corporation, any
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business in competition with any business carried on by the Company or a parent,
subsidiary, affiliate or successor of the Company, provided that for the period
after termination of employment, the provision of this Paragraph 4 shall only
apply to the Company's voice recognition technology, shall continue for a period
of one (1) year after termination of employee's employment hereunder, and shall
be limited geographically to those cities and counties in the United States and
outside of the United States where the Company's voice recognition technology
was being marketed and sold immediately prior to termination of Employee's
employment hereunder.
5. Termination of Employment.
(a) On and subject to the terms and provisions hereof, the
Company shall have the right at its option to terminate the employment of
Employee hereunder by giving written notice thereof to Employee in the event of
any of the following:
(1) Employee has materially breached any material
provision of this Agreement and does not cure such breach within 20 days after
the Company has given notice of such breach (specifying with particularity the
basis for such breach) to Employee, or Employee is convicted of fraud or
embezzlement, or has engaged in material misconduct in connection with his
material duties under this Agreement.
(2) If the Company gives Employee thirty (30) days
advance written notice of termination of employment, such notice not to be given
on or before April 1, 1998.
(3) If Employee dies (in which case except as otherwise
provided herein employment under this Agreement shall automatically terminate
upon such death).
(4) If Employee shall fail to carry out or to perform
the duties required of him because of mental or physical disability for thirty
(30) consecutive days or any
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thirty (30) days within a sixty (60) day period during the term hereof, and does
not resume his duties prior to the termination date specified in the Company's
written notice of termination by reason of such; provided, however, that in no
event may any such notice provide a termination date shorter than thirty (30)
days from the date the notice is delivered to Employee, and provided further,
that if Employee's employment hereunder is terminated because of Employee's
mental or physical disability or death, he or his estate shall be entitled to
receive the Severance Compensation, as hereinafter defined, he would otherwise
be entitled to hereunder.
If Employee's employment is terminated by the Company pursuant to
Paragraph 5(a)(2) hereof after April 1, 1998, then Employee shall receive
severance payments equal to twenty five percent (25%) of the annual Base Salary
("Severance Compensation"), such payments to be made to Employee in a lump sum
payment on the effective date of such termination.
(b) Except as specifically provided for in this Paragraph 5 or
by applicable law, Employee shall not be entitled to any severance compensation
upon termination of employment with the Company, whether at the Company's or
Employee's option. Except as specifically provided in this Paragraph 5, the
Company may not terminate Employee's employment for any reason.
(c) Employee shall have the right at his option to terminate
his employment hereunder at any time after April 1, 1998 by giving the Company
thirty (30) days advance written notice of such termination.
6. Soliciting Customers; Employees. Employee agrees that he will not
for a period of one (1) year immediately following the termination of his
employment with the Company, either directly or indirectly, make known to any
competing person, firm, or corporation the names
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or addresses of any of the customers of the Company, including any prospective
customers with whom the Company or its agents or its representatives have had
discussions or other communications concerning such persons or entities becoming
customers of the Company, or any other information pertaining to them. Employee
also agrees that following termination of employment hereunder, Employee shall
not, directly or indirectly, solicit any employees of the Company to leave the
employ of the Company for any reason, nor shall Employee assist or participate
with, directly or indirectly, any other person, organization or entity in so
doing.
7. Trade Secrets of the Company. During the term of employment under
this Agreement, Employee will have access to and become acquainted with various
trade secrets, consisting of devices, secret inventions, processes, and
compilations of information, records, and specifications, and licensing
arrangements and potential uses and/or applications of the Company's technology,
which are owned by the Company and which are regularly used or to be used in the
operation of the business of the Company. Employee shall not disclose any of the
aforesaid trade secrets, directly or indirectly, or use them in any way, either
during the term of this Agreement or at any time thereafter, except as required
in the course of his employment. All files, records, documents, drawings,
specifications, equipment, and similar items relating to the business of the
Company prepared by Employee or otherwise coming into his possession during the
term of his employment, shall remain the exclusive property of the Company and
shall not be removed under any circumstances from the premises where the work of
the Company is being carried on without the prior written consent of the
Company, or consistent with the Company's normal business practices.
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8. Inventions and Patents. Employee agrees that any inventions made
by him during the term of his employment, solely or jointly with others, which
are made with the equipment, supplies, facilities or trade secrets information
of the Company, or which relate at the time of conception or reduction to
practice of the invention to the business of the Company or the Company's actual
or demonstrably anticipated research or development, or which result from any
work performed by Employee for the Company, shall belong solely and exclusively
to the Company, and Employee promises to assign such inventions to the Company
without additional payment or consideration. Employee also agrees that the
Company shall have the right to keep such inventions as trade secrets, if the
Company chooses. Employee agrees to assign to the Company Employee's rights in
any such inventions where the Company is required to grant those rights to the
United States government or any agency thereof.
This Agreement does not apply to any inventions which are the
subject of Section 2870 of the California Labor Code.
In order to permit the Company to claim rights to which it may be
entitled, Employee agrees to disclose to the Company in confidence all
inventions which Employee makes arising out of Employee's employment, and all
patent applications filed by Employee within one (1) year after termination of
his employment. The Company agrees to maintain all information and documents
provided by Employee in strict confidence and to return any such information and
documents (including all copies thereof) to Employee within sixty (60) days of
Employee's request therefor which the Company does not obtain ownership of.
Employee shall, at the Company's expense, assist the Company in
obtaining patents on all inventions, designs, improvements, and discoveries
deemed patentable by the Company in
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the United States and in all foreign countries, and shall execute all documents
and do all things necessary to obtain letters patent, to vest the company with
full and exclusive title thereto, and to protect the same against infringement
by others, all at the Company's expense.
9. Confidential Data of Customers of the Company. Employee in the
course of his employment may be handling financial, accounting, statistical, and
personnel data of customers of the Company. All such data is confidential and
shall not be disclosed, directly or indirectly, or used by Employee in any way,
either during the term of this Agreement or at any time thereafter, except as
required in the course of his employment.
10. Severability. Each paragraph and subparagraph of this Agreement
shall be construed and considered separate and severable from the validity and
enforceability of any other provision contained in this Agreement.
11. Assignment. The rights of the Company (but not its obligations)
under this Agreement may, with the reasonable consent of Employee (which may be
withheld if, among other things, Employee's title or the scope or stature of
Employee's responsibilities within the Company would be substantially
diminished), be assigned by the Company to any parent, subsidiary, or successor
of the Company; provided that such parent, subsidiary or successor acknowledges
in writing that it is also bound by the terms and obligations of this Agreement.
Except as provided in the preceding sentence, the Company may not assign all or
any of its rights, duties or obligations hereunder without prior written consent
of Employee. Employee may not assign all or any of his rights, duties or
obligations hereunder without the prior written consent of the Company.
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12. Notices. All notices, requests, demands and other communications
shall be in writing and shall be deemed to have been duly given if delivered or
if mailed by registered mail, postage prepaid:
(a) If to Employee, addressed to him at the address set forth
below his name.
(b) If to the Company, addressed to:
Voice Powered Technology International, Inc.
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: The Board of Directors
with a copy to:
Xxxxxx X. Xxxxx
Tilles, Webb, Xxxxx & Grant
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
or to such other address as any party hereto may request by notice given as
aforesaid to the other parties hereto.
13. Titles and Headings. Titles and headings to paragraphs hereof
are for purposes of reference only and shall in no way limit, define or
otherwise affect the provisions hereof.
14. Governing Law. This Agreement is being executed and delivered
and is intended to be performed in the State of California, and shall be
governed by and construed in accordance with the laws of the State of
California.
15. 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. It shall not be
necessary in making proof of this Agreement
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to produce or account for more than one counterpart. Facsimile signatures shall
be accepted by the parties as valid and binding in lieu of original signatures;
however, if facsimile signatures are presented by any party in lieu of original
signatures, within two (2) business days after execution of the Agreement such
party shall also deliver to counsel for the other party(ies) an original
signature page signed by that party (but failure to do so shall not affect the
validity of this Agreement).
16. Cumulative Rights. Each and all of the various rights, powers
and remedies of the Company in this Agreement shall be considered as cumulative,
with and in addition to any rights, powers or remedies of the Company and no one
of them as exclusive of the others or as exclusive of any other rights, powers
and remedies allowed by law. The exercise or partial exercise of any right,
power or remedy shall neither constitute the election thereof nor the waiver of
any other right, power or remedy.
17. Entire Agreement. This Agreement contains the entire agreement
of the parties hereto with respect to the subject matter hereof and may be
modified or amended only by a written instrument executed by both parties.
18. Good Faith. Each of the parties hereto agrees that he or it
shall act in good faith in all actions taken under this Agreement.
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19. Expenses of Proceedings. In the event that any party hereto
brings any type of proceeding to enforce the terms and conditions of this
Agreement, the prevailing party in such proceeding shall be entitled to recover
from the unsuccessful party all incidental costs and reasonable attorneys' and
paralegals' fees incurred by said prevailing party.
20. Dispute Resolution. Any dispute or disagreement concerning this
Agreement or any term or provision hereof shall be heard and determined by a
reference under and in accordance with the provision of sections 638 to 645.1 or
the California Code of Civil Procedure, and the prevailing party therein shall
be entitled to recover its reasonable attorneys' fees and litigation and court
costs and expenses (including the fees of the referee or temporary judge).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
VOICE POWERED TECHNOLOGY
INTERNATIONAL, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Its: President and CEO
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/s/ Xxxxxxx X. XxXxxx
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Xxxxxxx X. XxXxxx
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