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EXHIBIT 10.2
INTERVOICE, INC.
SECOND AMENDED AND EXTENDED EMPLOYMENT AGREEMENT
This Second Amended and Extended Employment Agreement (this
"Agreement") is dated as of June 21, 1996 effective as of March 1, 1996 between
InterVoice, Inc., a Texas corporation with its principal executive offices at
00000 Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 (the "Company"), and Xxxxxx X.
Xxxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee is presently employed by the Company pursuant to
that certain Amended and Extended Employment Agreement dated February 28, 1993
(the "Old Agreement"), between the Company and the Employee; and
WHEREAS, the Employee and the Company desire to amend the terms and
conditions of the Old Agreement to, among other things, extend the term of the
Employee's employment by the Company, increase the Employee's base salary,
further define the Employee's bonus opportunity and grant additional stock
options to the Employee.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and subject to the
terms and conditions hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS.
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In addition to the words and terms elsewhere defined in this Agreement,
the following words and terms herein shall have the following meanings, unless
the context or use indicates a different meaning:
"Annualized Compensation Amount" means an amount equal to the
annualized salary payable and bonuses accrued or payable to the Employee
pursuant to Section 4 of this Agreement during the most recent completed fiscal
year of the Company.
"Applicable EPS Bonus Percentage" means, with respect to the applicable
fiscal year, the percentage set forth in the right hand column below as
determined with reference to the increase or decrease in the Company's earnings
per share between such fiscal year the immediately preceding fiscal year.
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Increase or Decrease in Earnings per
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Share in Applicable Fiscal Year
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Compared to Immediately Preceding Applicable EPS
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Fiscal Year Bonus Percentage
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40% or more increase 125%
35% through 39% increase 100%
25% through 34% increase 75%
10% through 24% increase 50%
0% through 9% increase 25%
1% through 10% decrease 10%
11% or more decrease 0%
"Applicable Revenue Bonus Percentage" means, with respect to the
applicable fiscal year, the percentage set forth in the right hand column below
as determined with reference to the increase or decrease in the Company's total
revenues between such fiscal year and the immediately preceding fiscal year:
Increase or Decrease in Revenues in
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Applicable Fiscal Year Compared to Applicable Revenue
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Immediately Preceding Fiscal Year Bonus Percentage
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40% or more increase 125%
35% through 39% increase 100%
25% through 34% increase 75%
10% through 24% increase 50%
0% through 9% increase 25%
Decrease in revenues 0%
"Cause" means (a) any act by the Employee that is materially adverse
to the best interests of the Company and which, if the subject of a criminal
proceeding, could result in a criminal conviction for a felony or (b) the
willful failure by the Employee to substantially perform his duties hereunder,
which duties are within the control of the Employee (other than the failure
resulting from the Employee's incapacity due to physical or mental illness),
provided, however, that the Employee shall not be deemed to be terminated for
Cause under this subsection (b) unless and until (1) after the Employee
receives written notice from the Company specifying with reasonable
particularly the actions of Employee which constitute a violation of this
subsection (b) and (2) within a period of 30 days after receipt of such notice
(and during which the violation is within the control of the Employee),
Employee fails to reasonably and prosecutively cure such violation.
"Common Stock" means the Company's common stock, no par value per share.
An "Event of Default" means the occurrence of any of the following
events prior to the Triggering Date, unless remedied or otherwise cured within
30 days after the Company's receipt
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of written notice from the Employee of such event, (a) a breach by the Company
of any of its express or implied obligations under this Agreement, (b) without
his prior concurrence, the Employee is assigned any duties or responsibilities
that are inconsistent with his position, duties, responsibilities or status at
the commencement of the term of this Agreement, or his reporting
responsibilities or titles in effect at such time are changed, (c) the
Employee's base compensation is reduced or any other failure by the Company to
comply with Section 4, or (d) any change in any employee benefit plans or
arrangements in effect on the date hereof in which the Employee participates
(including without limitation any pension and retirement plan, savings and
profit sharing plan, stock ownership or purchase plan, stock option plan, or
life, medical or disability insurance plan), which would adversely affect the
Employee's rights or benefits thereunder, unless such change occurs pursuant to
a program applicable to all executive officers of the Company and does not
result in a proportionately greater reduction in the rights of or benefits to
the Employee as compared to any other executive officer of the Company.
"Good Reason" means the occurrence of a Triggering Event (as defined
below) and (a) a breach by the Company of any of its express or implied
obligations under this Agreement, (b) without his prior concurrence, the
Employee is assigned any duties or responsibilities that are inconsistent with
his position, duties, responsibilities or status at the commencement of the
term of this Agreement, or his reporting responsibilities or titles in effect
at such time are changed, (c) the Employee's base compensation is reduced or
any other failure by the Company to comply with Section 4, (d) any change in
any employee benefit plans or arrangements in effect on the date hereof in
which the Employee participates (including without limitation any pension and
retirement plan, savings and profit sharing plan, stock ownership or purchase
plan, stock option plan, or life, medical or disability insurance plan), which
would adversely affect the Employee's rights or benefits thereunder, unless
such change occurs pursuant to a program applicable to all executive officers
of the Company and does not result in a proportionately greater reduction in
the rights of or benefits to the Employee as compared to any other executive
officer of the Company, or (e) the shareholders of the Company shall fail to
elect the Employee as a member of the Board of Directors of the Company.
"Triggering Date" means the date of a Triggering Event.
A "Triggering Event" shall be deemed to have occurred if (a) any person or
group (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly or
indirectly, of securities of the Company representing more than 20% of the
combined voting power of the Company's then outstanding securities, or (b) at
any annual or special meeting of shareholders of the Company one or more
directors are elected who were not nominated by management of the Company to
serve on the Board of Directors of the Company, or (c) the Company is merged or
consolidated with another corporation and as a result of such merger or
consolidation less than 51% of the outstanding voting securities of the
surviving or resulting corporation are owned in the aggregate by the former
shareholders of the Company, other than by a party to such merger or
consolidation or affiliates (within the meaning of the Exchange Act) of any
party to such merger or consolidation, as the same existed immediately prior to
such merger or consolidation, or (d) the Company sells all or substantially all
of its assets to another corporation which is not a wholly-owned subsidiary of
the Company.
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2. EMPLOYMENT.
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The Company hereby employs the Employee and the Employee hereby accepts
employment on the terms and conditions set forth herein.
3. TERM.
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The initial term of this Agreement shall be from March 1, 1996 until
February 28, 1999 unless sooner terminated in accordance with the provisions
herein regarding termination. Subject to earlier termination as provided
herein, the initial term of this Agreement shall be automatically extended for
one (1) year from March 1, 1999, unless either the Employee or the Company
gives written notice to the other six months or more prior to February 28,
1999.
4. COMPENSATION.
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(a) Base Salary. For all services rendered by the Employee under this
Agreement, the Company shall pay the Employee a base salary of $341,640 per
year. Such salary shall be payable in equal monthly installments in accordance
with the customary payroll policies of the Company in effect at the time such
payment is made, or as otherwise mutually agreed upon; provided, however, the
Company will promptly pay the Employee in a lump sum an amount equal to the
difference between (i) the aggregate base salary that is payable to the
Employee under this Agreement for the period March 1, 1996 through June 30,
1996, inclusive, and (ii) the aggregate base salary actually paid to Employee
under the Old Agreement for the period March 1, 1996 through June 30, 1996,
inclusive. On or about the anniversary date of this Agreement each year during
the term hereof, the Compensation Committee of the Company shall review
Employee's performance for the prior year and make such adjustments in base
salary from time to time at their discretion as the Employee and the Company
may agree.
(b) Annual Bonus. Effective for the Company's fiscal year ending February
29, 1997 and continuing with respect to each subsequent fiscal year thereafter
during the term of this Agreement, the Company will pay Employee an annual
bonus equal to the sum of (a) the mathematical product of Employee's base
salary pursuant to Subsection 4(a) for such fiscal year multiplied by the
Applicable Revenue Bonus Percentage and (b) the mathematical product of the
Employee's base salary pursuant to Subsection 4(a) for such fiscal year
multiplied by the Applicable EPS Bonus Percentage. Employee's bonus pursuant to
this Subsection 4(b) shall be earned as of the end of the Company's fiscal year
and payable within five days after the Company's receipt of its audited annual
financial statements. The formula set forth herein for determining annual
bonuses shall be adjusted from time to time when and if there occur stock
splits or other changes in capital structure which result in an increase or
decrease in outstanding capital stock of more than 25%.
(c) Bonus. In addition to the Employee's annual base salary and other
benefits provided for in this Agreement, the Company may pay to the Employee on
an annual basis a discretionary bonus in an amount to be approved by the Board
of Directors of the Company; provided, however, in no event shall the bonus
payable hereunder, if any, exceed Employee's annual base salary provided for in
Section 4(a).
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(d) Benefits. The Employee shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement made available
by the Company in the future to its executive officers and key management
personnel, subject to and on a basis consistent with the terms, conditions
and overall administration of such plan or arrangement. Nothing paid to the
Employee under any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the salary and bonuses payable to
the Employee pursuant to Subsections 4(a), (b) and (c).
(e) Stock Option. In consideration of the Employee's execution of
this Agreement, the Company has granted effective June 21, 1996 an option to
purchase 180,000 shares of the Company's Common Stock to the Employee pursuant
to the Company's 1990 Incentive Stock Option Plan. The exercise price for such
option will be the closing price for the Company's Common Stock on the Nasdaq
National Market on June 21, 1996. The grant of such option is subject to the
Company's shareholders approving, at the 1996 annual meeting, the proposed
amendment to increase the number of shares of Common Stock authorized for
issuance under the 1990 Incentive Stock Option Plan.
(f) Expenses. Upon receipt of itemized vouchers, expense account
reports, and supporting documents submitted to the Company in accordance with
the Company's procedures from time to time in effect, the Company shall
reimburse Employee for all reasonable and necessary travel, entertainment, and
other reasonable and necessary business expenses incurred ordinarily and
necessarily by Employee in connection with the performance of his duties
hereunder.
(g) Vacation. Employee shall be entitled to a minimum of 6 weeks paid
vacation during each twelve month period commencing on the effective date of
this Agreement.
5. POSITION, DUTIES, EXTENT OF SERVICES AND SITUS.
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(a) Position and Duties. Employee shall serve as the Chairman of the
Board and Chief Executive Officer of the Company, accountable only to the Board
of Directors of the Company and, subject to the authority of such board, shall
have supervision and control over, and responsibility for, the general
management and operation of the Company and shall have such other powers and
duties as may from time to time be prescribed by such board, provided that such
duties are reasonable and customary for a Chairman of the Board and Chief
Executive Officer of a public company.
(b) Extent of Services and Situs. The Employee shall devote
substantially all of his business time, attention, and energy to the business
and affairs of the Company and shall not during the term of his employment
under this Agreement engage in any other business activity which could
constitute a conflict of interest, whether or not such business activity is
pursued for gain, profit, or other pecuniary advantage. This shall not be
construed as preventing the Employee from managing his current investments or
investing his assets in such form or manner as will not require any services on
the part of the Employee in the operation and the affairs of the companies in
which such investments are made, subject to the provisions of Sections 6 and
27. The Employee shall not be required to change the principal place of his
employment to a
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(b) Extent of Services and Situs. The Employee shall devote substantially
all of his business time, attention, and energy to the business and affairs of
the Company and shall not during the term of his employment under this
Agreement engage in any other business activity which could constitute a
conflict of interest, whether or not such business activity is pursued for
gain, profit, or other pecuniary advantage. This shall not be construed as
preventing the Employee from managing his current investments or investing his
assets in such form or manner as will not require any services on the part of
the Employee in the operation and the affairs of the companies in which such
investments are made, subject to the provisions of Sections 6 and 27. The
Employee shall not be required to change the principal place of his employment
to a location which is more than 15 miles further away from his principal
residence than such principal place of employment at the time of the execution
of this Agreement.
6. COVENANT NOT TO COMPETE.
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(a) The Employee acknowledges that (i) as a result of his position and
tenure with the Company he has received and will continue to receive
specialized and unique training and knowledge concerning the Company, its
business, its customers and the industry in which it competes, (ii) the
Company's business, in large part, depends upon its exclusive possession and
use of the Proprietary Information (as defined in Section 27), (iii) the
Company is entitled to protection against the unauthorized disclosure or use by
Employee of the Proprietary Information or the training and knowledge received
by the Employee and (iv) he has received in this Agreement good and valuable
consideration for the covenants he is making in this Section 6 and in Section
27. The Company and the Employee acknowledge and agree that the covenants
contained in this Section 6 and in Section 27 are reasonably for the protection
of the Company and are reasonably limited with respect to the activities they
prohibit, their duration, their geographical scope and their effects on the
Employee and the public. The parties acknowledge that the purpose and effect of
the covenants are to protect the Company from unfair competition by the
Employee.
(b) Except as provided in the last sentence of Section 6(b), during the
period in which the Employee renders services to the Company under this
Agreement and for eighteen (18) months thereafter, the Employee shall not,
without the written consent of the Company, own, manage, operate, control,
serve as an officer, director, employee, partner or consultant of or be
connected in any way with or have any interest in any corporation, partnership,
proprietorship or other entity which carries on business activities in
competition with the Company's activities in any state of the United States or
in any foreign country in which the Company has sold or installed its products
or systems or has definitive plans to sell or install its products at any time
prior or at the time of the date of termination of the Employee's employment;
except that the Employee may own up to 1% of the shares of any publicly-owned
corporation, provided that none of his other relationships with such
corporation violates such covenant. Notwithstanding the foregoing, the
provisions of this Section 6 shall not apply if the Employee's employment with
the Company under this Agreement is terminated (i) by the Company, unless the
Employee is terminated in accordance with Section 7 or for Cause in accordance
with Subsection 9.l(a) or 9.2(a), or (ii) at the election of the Employee prior
to the Triggering Date after the occurrence of an Event of Default which has
not been waived in writing or on or after the Triggering Date for Good Reason.
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(c) The Company and the Employee hereby agree that in the event that the
noncompetition covenants contained herein should be held by any court or other
constituted legal authority of competent jurisdiction to be effective in any
particular area or jurisdiction only if said covenants are modified to limit
their duration, geographical area or scope, then the parties hereto will
consider Section 6 to be amended and modified with respect to that particular
area or jurisdiction so as to comply with the order of any such court or other
constituted legal authority and, as to all other jurisdictions or political
subdivisions thereof, the noncompetition covenants contained herein will remain
in full force and effect as originally written. The Company and the Employee
further agree that in the event that the noncompetition covenants contained
herein should be held by any court or other constituted legal authority of
competent jurisdiction to be void or otherwise unenforceable in any particular
area or jurisdiction notwithstanding the operation of this Section 6(c), then
the parties hereto will consider this Section 6 to be amended and modified so
as to eliminate therefrom that particular area or jurisdiction as to which such
noncompetition covenants are so held void or otherwise unenforceable, and, as
to all other areas and jurisdictions covered by the noncompetition covenants,
the terms and provisions hereof shall remain in full force and effect as
originally written.
(d) Employee recognizes and acknowledges that the Company would suffer
irreparable harm and substantial loss if Employee violated any of the terms and
provisions of this Section 6 or Section 27 and that the actual damages which
might be sustained by the Company as the result of any breach of this Section 6
or Section 27 would be difficult to ascertain. Employee agrees, at the election
of the Company and in addition to, and not in lieu of, the Company's right to
terminate Employee's employment and to seek all other remedies and damages
which the Company may have at law and/or equity for such breach, that the
Company shall be entitled to an injunction restraining Employee from breaching
any of the terms or provisions of this Section 6 or Section 27.
7. COMPENSATION IN THE EVENT OF DISABILITY.
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(a) Disability. If the Employee becomes disabled during the term of this
Agreement the Company shall cause to be paid to the Employee an amount equal to
his base salary in effect at the time of disability under Subsection 4(a), for
the shorter of the duration of the disability or the remainder of the term of
this Agreement and, subject to the provisions of Sections 22 and 25, with no
liability on its part for further payments to the Employee during the duration
of the disability. Subject to Subsection 7(b) below, full compensation shall be
reinstituted upon his return to employment and resumption of his duties. For
purposes of this Subsection 7(a) the Employee shall be deemed "disabled" when
he is unable, for a period of 90 consecutive days, to perform his normal duties
of employment due to bodily injury or disease or any other physical or mental
disability.
(b) Complete Disability. The Company shall have the right to terminate the
Employee's employment under this Agreement prior to the expiration of the term
upon the "Complete Disability" of the Employee as hereinafter defined
(provided, however, that the obligations of the Company under Subsection 7(a)
shall not terminate). The term "Complete Disability" as used in this Subsection
7(b) shall mean (i) the total inability of the Employee, due to bodily injury
or disease or any other physical or mental incapacity, to perform the services
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provided for hereunder for a period of 120 days, in the aggregate, within any
given period of 180 consecutive days during the term of this Agreement, and
(ii) where such inability will, in the opinion of a qualified physician
(reasonably acceptable to Employee), be permanent and continuous during the
remainder of his life.
8. COMPENSATION IN THE EVENT OF DEATH.
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If the Employee dies during the term of his employment, the Company
shall pay to such person as the Employee shall designate in a notice filed with
the Company, or, if no such person shall be designated, to his estate as a
death benefit, his base salary in effect at the time of his death pursuant to
Subsection 4(a) in equal semi-monthly installments on the first and fifteenth
day of each month immediately succeeding his death, for a period of months
(not exceeding 12) determined by multiplying the number of complete 12-month
periods of employment of the Employee by the Company (whether pursuant to an
employment agreement or not) by two, in addition to any payments the Employee's
spouse, beneficiaries, or estate may be entitled to receive pursuant to any
pension or employee benefit plan or life insurance policy maintained by the
Company, and, except for any obligations of the Company under Sections 22 and
25, all other obligations of the Company hereunder shall cease at the time of
the Employee's death.
9. TERMINATION.
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9.1 Termination Prior to the Triggering Date. (a) Upon at least 30
days' prior written notice to the Employee and prior to the Triggering Date,
the Company may terminate the Employee's employment with the Company under this
Agreement only for Cause or in accordance with Section 7 and, subject to the
provisions of Sections 7, 22, and 25, with no liability on its part for further
payments to the Employee. The Company may effect a termination for Cause
pursuant to this Subsection 9.1(a) only by the affirmative vote of a majority
of the members of the Board of Directors of the Company. In voting upon such
termination for Cause, if the Employee is also a member of the Board of
Directors of the Company, then he may not vote on, and will not be considered
present for any purpose with respect to, a matter presented to the Board of
Directors of the Company pursuant to this Subsection 9.1(a).
(b) Prior to the Triggering Date, the Employee may terminate his
employment with the Company under this Agreement by giving at least 90 days'
prior written notice of his desire to terminate employment to the Board of
Directors of the Company. If the Employee's employment with the Company under
this Agreement is terminated pursuant to this Subsection 9.1(b), the Employee
will continue to accrue and receive his base salary in effect at the time
pursuant to Subsection 4(a) through the date of termination with no liability
on the part of the Company for further payments to the Employee, subject to the
provisions of Sections 22 and 25.
(c) Prior to the Triggering Date, if the Employee's employment with
the Company is terminated by the Company without Cause or if the Employee
terminates his employment with the Company following the occurrence of an Event
of Default which has not been waived in writing by the Employee, the Employee
will continue to accrue and receive his base salary in effect at the time
pursuant to Subsection 4(a) through the date of termination and will be
entitled to receive the benefits provided for under Subsection 10.1 (unless the
Employee's employment
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is terminated in accordance with Section 7) with no liability on the part of
the Company for further payments to the Employee, subject to the provisions of
Sections 7, 22, and 25.
9.2 Termination On or After the Triggering Date. (a) Upon at least
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30 days' prior written notice to the Employee and on or after the Triggering
Date, the Company may terminate the Employee's employment with the Company
under this Agreement only for Cause or in accordance with Section 7 and,
subject to the provisions of Sections 7, 22 and 25, with no liability on its
part for further payments to the Employee. The Company may effect a
termination for Cause pursuant to this Subsection 9.2(a) only by the
affirmative vote of two-thirds of the members of the Board of Directors of the
Company. In voting upon such termination for Cause, if the Employee is also a
member of the Board of Directors of the Company, then he may not vote on, and
will not be considered present for any purpose with respect to, a matter
presented to the Board of Directors of the Company pursuant to this Subsection
9.2(a).
(b) On or after the Triggering Date, if the Employee's employment
with the Company is terminated by the Company without Cause or if the Employee
terminates his employment with the Company for Good Reason, the Employee will
continue to accrue and receive his base salary in effect at the time pursuant
to Subsection 4(a) through the date of termination and will be entitled to
receive the payments and benefits provided for under Subsections 10.2 and 10.3
(unless the Employee's employment is terminated in accordance with Section 7)
with no liability on the part of the Company for further payments to the
Employee, subject to the provisions of Sections 7, 22 and 25.
(c) On or after the Triggering Date, the Employee may, in his sole
and absolute discretion and without any prior approval by the Board of
Directors of the Company, and upon twelve months' prior written notice to the
Board of Directors of the Company, terminate his employment with the Company
under this Agreement for any reason whatsoever. If the Employee's employment
with the Company under this Agreement is terminated pursuant to this Subsection
9.2(c), the Employee will continue to accrue and receive his base salary in
effect at the time pursuant to Subsection 4(a) through the date of termination
and will be entitled to receive the benefits provided for under Subsections
10.2 and 10.3 with no liability on the part of the Company for further payments
to the Employee, subject to the provisions of Sections 22 and 25.
10. COMPENSATION AFTER CERTAIN TERMINATIONS.
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10.1 Remaining Compensation. If the Employee's employment with the
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Company is terminated (whether such termination is by the Employee or by the
Company) at any time prior to the Triggering Date for any reason other than (a)
termination by the Company for Cause in accordance with Subsection 9.1(a); (b)
termination by the Company in accordance with Section 7; (c) the Employee's
death; or (d) termination at the election of the Employee pursuant to
Subsection 9.1(b) then, within five days after the date of such termination,
(i) the Remaining Compensation (as herein defined) which would have been paid
to the Employee during the remainder of the term of this Agreement of
termination had not occurred shall become due and payable and shall be paid to
the Employee in a single lump sum in cash, and (ii) all stock options granted
to Employee pursuant to Subsection 4(e) hereof which are not then exercisable
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shall, notwithstanding the provisions of any other agreement, become
immediately exercisable and shall remain exercisable until they are exercised
or until they otherwise would expire. For purposes of this Subsection 10.1, the
"Remaining Compensation" shall mean the annual base salary payable to the
Employee pursuant to Subsection 4(a) at the time of termination plus an amount
representing the value of all employee benefits including, without limitation,
any unearned annual bonuses described in Subsection 4(b), discretionary bonuses
and incentive compensation under plans then in effect. For these purposes, the
value of any unearned annual bonuses and all of such other employee benefits
shall be deemed to be equal to 12 months base salary payable to the Employee
pursuant to Subsection 4(a) at the time his employment is terminated.
10.2 Post Triggering Date Severance Payment. If the Employee's
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employment with the Company is terminated (whether such termination is by the
Employee or by the Company) at any time on or within three years after the
Triggering Date for any reason other than (a) termination by the Company
for cause in accordance with Subsection 9.2(a) or (b) termination by the Company
in accordance with Section 7 or (c) the Employee's death or (d) termination at
the election of the Employee other than termination for Good Reason without
compliance with the retirements of Section 9.2(c) then, within five days after
the date of such termination, the Company shall pay the Employee a lump sum
amount in cash equal to 2.99 times the Annualized Compensation Amount.
10.3 Gross-Up Payment. In the event that (i) the Employee becomes
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entitled to the payments provided under Section 10.2 of this Agreement (the
"Change in Control Payments") and any of the Change in Control Payments will be
subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), or any successor provision, or
(ii) any payments or benefits received or to be received by the Employee
pursuant to the terms of any other plan, arrangement or agreement (the "Benefit
Payments") will be subject to the Excise Tax, the Company shall pay to the
Employee an additional amount (the "Gross-Up Payment") such that the net amount
retained by the Employee, after deduction of any Excise Tax on the Change in
Control Payments and the Benefit Payments, and any federal, state and local
income tax and Excise Tax upon the payment provided for by this Section 10.3,
shall be equal to the Change in Control Payments and the Benefit Payments,
provided, however, that in determining the amount of the Gross-Up Payment, any
Excise Tax on the Change in control Payments and the Benefit Payments shall be
determined using a rate no higher than 20%. For purposes of determining whether
any of the Change in Control Payments or the Benefit Payments will be subject
to the Excise Tax and the amount of such Excise Tax, (i) any payments or
benefits received or to be received by the Employee in connection with a change
in control of the Company or the Employee's termination of employment (whether
pursuant to the terms of this agreement or any other plan, arrangement or
agreement with the Company, any person whose actions result in change in
control or any person affiliated with the Company or such persons) shall be
treated as "parachute payments" within the meaning of Section 280G(b) (2) of
the Code, and all "excess parachute payments" within the meaning of Section
280G(b) (1) shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel selected by the Company's independent auditors and
acceptable to the Employee such payments or benefits (in whole or in part) do
not constitute parachute payments, or such excess payments (in whole or in
part) represent reasonable compensation for services actually rendered within
the meaning of Section 280G(b) (4) of the Code, (ii) the
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amount of the Change in Control Payments and the Benefit Payments that shall be
treated as subject to the Excise Tax shall be equal to the lesser of (A) the
total amount of the Change in Control Payments and the Benefit Payments or (B)
the amount of excess parachute payments within the meaning of Sections
280G(b)(1) and (4) (after applying clause (i), above) and (iii) the value of any
non-cash benefits or any deferred payment or benefit shall be determined by the
Company's independent auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, the Employee shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and state and local income taxes at
the highest marginal rates of taxation in the state and locality of the
Employee's residence on the date of termination, net of the maximum reduction
in federal income taxes at the highest marginal rates of taxation in the state
and locality of the income taxes which could be obtained from deduction of such
state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of the Employee's employment, the Employee shall repay to the
Company at that time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such reduction
plus interest on the amount of such repayment at the rate provided in Section
1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder at the time of the termination
of the Employee's employment (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-Up Payment),
the Company shall make an additional gross-up payment to the Employee in
respect of such excess (plus any interest payable with respect to such excess)
at the time that the amount of such excess is finally determined.
11. MITIGATION.
-----------
The Employee shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Agreement
be reduced by any compensation earned by the Employee as the result of
employment by another employer after the date of termination of Employee's
employment with the Company, or otherwise.
12. ENTIRE AGREEMENT.
-----------------
This Agreement embodies the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and supersedes all
prior negotiations, agreements, and understandings relating to such subject
matter, and may be modified or amended only by an instrument in writing signed
by the parties hereto.
13. LAW TO GOVERN.
--------------
This Agreement is executed and delivered in the State of Texas and
shall be governed, construed and enforced in accordance with the laws of the
State of Texas.
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14. ASSIGNMENT.
-----------
This Agreement is personal to the parties, and neither this Agreement
nor any interest herein may be assigned (other than by will or by the laws of
descent and distribution) without the prior written consent of the parties
hereto nor be subject to alienation, anticipation, sale, pledge, encumbrance,
execution, levy, or other legal process of any kind against the Employee or any
of his beneficiaries or any other person. Notwithstanding the foregoing, the
Company shall be permitted to assign this Agreement to any corporation or other
business entity succeeding to substantially all of the business and assets of
the Company by merger, consolidation, sale of assets, or otherwise, if the
Company obtains the assumption of this Agreement by such successor. Failure by
the Company to obtain such assumption prior to the effectiveness of such
succession shall be a breach of this Agreement and shall entitle the Employee
to receive compensation from the Company under this Agreement in the same
amount and on the same terms as he would be entitled to hereunder if he had
voluntarily terminated his employment after the Triggering Date, and, for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Triggering Date.
15. BINDING AGREEMENT.
------------------
Subject to the provisions of Section 14 of this Agreement, this
Agreement shall be binding upon and shall inure to the benefit of the Company
and the Employee and their respective representatives, successors, and assigns.
16. REFERENCES AND GENDER.
----------------------
All references to "Sections" and "Subsections" contained herein are,
unless specifically indicated otherwise, references to sections and subsections
of this Agreement. Whenever herein the singular number is used, the same shall
include the plural where appropriate, and words of either gender shall include
the other gender where appropriate.
17. WAIVER.
-------
No waiver of any right under this Agreement shall be deemed effective
unless the same is set forth in writing and signed by the party giving such
waiver, and no waiver of any right shall be deemed to be a waiver of any such
right in the future.
18. NOTICES.
--------
Except as may be otherwise specifically provided in this Agreement, all
notices required or permitted hereunder shall be in writing and will be deemed
to be delivered when deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, addressed to the party
or parties at 00000 Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, or at such other
addresses as may have theretofore been specified by written notice delivered in
accordance herewith.
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19. OTHER INSTRUMENTS.
------------------
The parties hereto covenant and agree that they will execute such other
and further instruments and documents as are or may become necessary or
convenient to effectuate and carry out the terms of this Agreement.
20. HEADINGS.
---------
The headings used in this Agreement are used for reference purposes
only and do not constitute substantive matter to be considered in construing
the terms of this Agreement.
21. INVALID PROVISION.
------------------
Any clause, sentence, provision, section, subsection or paragraph of
this Agreement held by a court of competent jurisdiction to be invalid,
illegal, or ineffective shall not impair, invalidate, or nullify the remainder
of this Agreement, but the effect thereof shall be confined to the clause,
sentence, provision, section, subsection or paragraph so held to be invalid,
illegal or ineffective.
22. RIGHTS UNDER PLANS AND PROGRAMS.
--------------------------------
Anything in this Agreement to the contrary notwithstanding, no
provision of this Agreement is intended, nor shall it be construed, to reduce
or in any way restrict any benefit to which the Employee may be entitled under
any other agreement, plan, arrangement, or program providing benefits for the
Employee.
23. MULTIPLE COPIES.
----------------
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument. The terms of this Agreement
shall become binding upon each party from and after the time that he or it
executed a copy hereof. In like manner, from and after the time that any party
executes a consent or other document, such consent or other document shall be
binding upon such parties.
24. WITHHOLDING OF TAXES.
---------------------
The Company may withhold from any amounts payable under this Agreement
all federal, state, city, or other taxes as shall be required pursuant to any
law or government regulation or ruling.
25. LEGAL FEES AND EXPENSES.
------------------------
The Company shall pay and be responsible for all legal fees and
expenses which the Employee may incur as a result of the Company's failure to
perform under this Agreement or as a result of the Company or any successor
contesting the validity or enforceability of this Agreement.
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26. SET OFF OR COUNTERCLAIM.
------------------------
Except with respect to any claim against or debt or other obligation
of the Employee properly recorded on the books and records of the Company prior
to the Triggering Date, there shall be no right of set off or counterclaim
against, or delay in, any payment by the Company to the Employee or his
beneficiaries provided for in this Agreement in respect of any claim against or
debt or other obligation of the Employee, whether arising hereunder or
otherwise.
27. ASSIGNMENT, PROTECTION AND CONFIDENTIALITY OF PROPRIETARY INFORMATION.
----------------------------------------------------------------------
Employee acknowledges and agrees that all items of the Company's
Proprietary Information constitute valuable, special and unique assets and
trade secrets of its business, which provide to the Company a competitive
advantage over others who do not have access thereto and access to which is
essential to the performance of Employee's duties hereunder. Employee shall
not, during the term of this Agreement or thereafter, use or disclose any
Proprietary Information that is not otherwise publicly available, in whole or
in part, for his benefit or for the benefit of any other person or party,
except for the Company. As used herein, "Proprietary Information" includes, but
is not limited to, customer lists and prices, whether current or prospective,
product designs or other product information, experimental developments and
other research and development information, testing processes, marketing
studies and research activities, and any other trade secrets concerning the
Company, its shareholders, officers, directors, employees, business prospects,
customers, transactions, finances, affairs, opportunities, operations,
properties or assets. The Employee further agrees that all inventions, devices,
compounds, processes, formulas, techniques, improvements and modifications
which he may develop, in whole or in part, during the term of his employment or
through or with the facilities, equipment or resources of the Company shall be
and remain the sole and exclusive property of the Company. The Employee agrees
to deliver to the Company at any time the Company may request, all memoranda,
notes, plans, records, reports, and other documents (including copies thereof
and all embodiments thereof whether in computerized form or any other medium)
relating to the business or affairs of the Company or its subsidiaries which he
may then possess or have under his control. Employee shall maintain in good
condition all tangible and other forms of Proprietary Information in Employee's
custody or control until his obligations under the preceding sentence are
satisfied. Employee agrees to execute all documents and take such other actions
as may be required to comply with this Section.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
INTERVOICE, INC.
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Pres. COO
/s/ XXXXX X. XXXXXXX
------------------------------
Xxxxx X. Xxxxxxx
