EXHIBIT 10.16
K&S DRAFT
8/25/97
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
on this ___ day of __________, 1997, by and between XXXX X. XXXXXX, an
individual resident of the State of Georgia (the "Employee"), and SYNTELLECT
INC., a Delaware corporation (the "Company");
W I T N E S S E T H:
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WHEREAS, the Company desires to continue to employ the Employee, and
the Employee desires to continue to be employed by the Company on the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
Section 1. Employment
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The Employee shall continue to serve as Vice President, Chief
Financial Officer, Secretary and Treasurer of the Company and shall devote his
full business time, skills and best efforts to rendering services on behalf of
the Company. In addition, the Employee shall use his best efforts in the
performance of any other reasonable duties relating to the operation of the
business of the Company as may be assigned to him from time to time by the Chief
Executive Officer or President of the Company or by the Board of Directors of
the Company. In the performance of such duties, the Employee shall exercise
such care as is customarily required by employees undertaking similar duties for
companies similar to the Company.
Section 2. Compensation; Expenses
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2.1 Salary. During the term of his employment hereunder, the
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Employee shall be paid a Base Salary by the Company for the period commencing
(i) on the date hereof and ending December 31, 1997 ("Year One") in an amount on
an annual basis equal to $_________, and (ii) January 1, 1998 and ending
December 31, 1998 ("Year Two") and January 1, 1999 and ending December 31, 1999
("Year Three"), in an amount to be approved by the Board of Directors, but in
any case not to be an amount less than the Base Salary in the immediately
preceding year (in any such case, the "Base Salary"). The Base Salary shall be
paid to the Employee in equal monthly installments (or more frequently if in
accordance with the Company's payment policies of general application), less all
applicable withholding taxes.
2.2 Bonus.
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(a) Amount of Bonus. In addition to the Base Salary payable to the
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Employee in each of Years One, Two and Three, the Employee shall be entitled to
receive a bonus for each such year [based upon the Company's target financial
performance for any such year (in any such year, the "Target Performance"). For
purposes of this Agreement, Target Performance shall have the meaning set forth
in Exhibit A hereto. For Year One, the Target Performance shall be $_________.
The Board of Directors shall determine in good faith the Target Performance for
Years Two and Three prior to the commencement of each such year. At the end of
Years One, Two and Three, if the Company's actual financial performance ("Actual
Performance") is equal to or greater than 85% of the Target Performance for that
year, then the Employee shall be entitled to receive a bonus (the "Bonus") for
any such year equal to a percentage of the Employee's Base Salary for such year,
which percentage (the "Bonus Percentage") shall be determined as described in
the Management Incentive Program attached as Exhibit B hereto] OR [as the Board
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of Directors shall determine in its sole and absolute discretion].
(b) Payment of Bonus. The Employee's Bonus, if any, for any of Years
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One, Two or Three shall be payable by the Company to the Employee within 30 days
after the end of such year.
2.3 Expenses. The Employee shall be reimbursed for all reasonable
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expenses incurred by the Employee at the request and on behalf of the Company.
Section 3. Term; Termination of Agreement. The employment of the
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Employee hereunder shall commence as of the date hereof and shall continue until
the earlier of (i) [December 31, 1999], or (ii) the occurrence of any of the
following events:
(a) the death or total disability of the Employee (total
disability meaning the failure of the Employee to perform his normal
required services hereunder for a period of six consecutive months during
the term hereof by reason of the Employee's mental or physical disability)
(a "Disability Termination Event");
(b) termination by the Company of the Employee's employment
hereunder, upon 10 days prior written notice to the Employee, for
"Good Cause," which shall exist upon the occurrence of any of the
following: (i) the Employee is convicted of, pleads guilty to, or
confesses to any felony or any act of fraud, misappropriation or
embezzlement, (ii) the Employee has engaged in a fraudulent act to the
material damage or prejudice of the Company or any affiliate of the
Company, (iii) the Employee illegally used controlled substances, (iv)
any material act or omission by the Employee involving malfeasance or
negligence in the performance of the Employee's duties to the Company
to the material
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detriment of the Company and, within thirty (30) days after written
notice from the Company of any such act or omission, the Employee has
not corrected such act or omission, (v) the entry of an order of a
court that remains in effect and is not discharged for a period of at
least sixty (60) days, which enjoins or otherwise limits or restricts
the performance by the Employee in any material way of any of his
duties to the Company under this Agreement, that relates to any
contract, agreement or commitment made by or applicable to the
Employee in favor of any former employer or any other person, or (vi)
the Employee otherwise fails to comply with the terms of this
Agreement or deviates from any written policies or directives of the
Board of Directors, in either such case to the material detriment of
the Company, and, within thirty (30) days after written notice from
the Company of such failure or deviation, the Employee has not
corrected such failure (in any such case, a "Good Cause Termination
Event");
(c) termination by the Company of the Employee's employment
hereunder, upon ten (10) days prior written notice to the Employee,
for any reason other than as a result of a Good Cause Termination
Event or Disability Termination Event (a "No Cause Termination
Event"); or
(d) voluntary termination by the Employee of the Employee's
employment hereunder (a "Voluntary Termination Event").
Section 4. Result of Termination.
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4.1 Termination As Result Of Voluntary Or Good Cause Termination
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Events. If the Employee's employment hereunder is terminated prior to [December
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31, 1999] as a result of the occurrence of a Voluntary Termination Event or a
Good Cause Termination Event, as of the date of the termination of the
Employee's employment, the Company shall have no further obligation to pay to
the Employee any Base Salary, Bonus or any other additional benefits pursuant to
Section 5 of this Agreement. If such termination occurs prior to the end of any
pay period, the Employee shall be entitled to receive a portion of the Base
Salary for such pay period prorated to the date on which the Employee's
employment is terminated.
4.2 Disability Termination Event. If the Employee's employment
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hereunder is terminated prior to [December 31, 1999] as a result of the
occurrence of a Disability Termination Event, as of the date of the termination
of the Employee's employment hereunder, the Company shall have no further
obligation to pay the Employee any Base Salary or any other additional benefits
pursuant to Section 5 of this Agreement other than medical insurance. The
Company shall provide medical insurance substantially similar to the medical
insurance provided to the Employee prior to the termination of his employment
for the [thirty-six] consecutive months immediately following such termination.
The Employee shall be entitled to receive a portion of the Bonus for the year
prorated to the date on which the Employee's employment is terminated. If such
termination occurs prior to the end of any pay period, the Employee shall be
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entitled to receive a portion of the Base Salary for such pay period prorated to
the date on which the Employee's employment is terminated. Notwithstanding the
foregoing, the Employee shall be entitled to whatever benefits are available
pursuant to the disability insurance contemplated by Section 5.2 hereof.
4.3 Termination As Result Of No Cause Termination Event. If the
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Employee's employment hereunder is terminated prior to [December 31, 1999] as a
result of the occurrence of a No Cause Termination Event, in addition to any
other rights the Employee may have pursuant to Section 2.2(b), the Company shall
pay to the Employee as severance pay and in lieu of any other payments under
this Agreement other than as contemplated by Section 2.3 hereof, in six equal
monthly installments commencing 10 days after such termination, an amount equal
to the aggregate Base Salary then in effect that would have been payable to the
Employee pursuant to this Agreement if the Employee had remained employed by the
Company for the six consecutive months immediately following the termination of
his employment. If such termination occurs prior to the end of any pay period,
the Employee shall be entitled to receive a portion of the Base Salary for such
pay period prorated to the date on which the Employee's employment is
terminated. If, at the end of such six month period, the Employee has not
obtained employment on terms and conditions which are suitable to the Employee
and Employee is diligently searching for such employment, then the Employee
shall be entitled to receive additional monthly installments (the "Salary
Continuation Payments") in an amount equal to the aggregate monthly Base Salary
that would have been payable to the Employee if the Employee had remained
employed by the Company. Such Salary Continuation Payments shall be payable
until the earlier of (i) the date the Employee obtains additional employment
(any partial month to be pro rated) or (ii) such time as Employee has received
Salary Continuation Payments for a period of six months. In addition, the
Company shall provide medical insurance substantially similar to the medical
insurance provided to the Employee prior to the termination of his employment
for the six consecutive months immediately following such termination and for
such additional period of time that the Employee shall receive salary in
accordance with the provisions of the previous sentence. The Employee shall be
entitled to receive a portion of the Bonus for the year pro rated to the date on
which the Employee's employment is terminated.
Section 5. Additional Employment Benefits
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The Company shall provide the Employee with the following fringe
benefits:
5.1 Medical Insurance. The Company shall provide the Employee with
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medical, dental and life insurance as the Board of Directors of the Company
shall authorize from time to time for the benefit of employees of the Company
generally. To the extent any group life insurance policy maintained by the
Company for the benefit of its employees generally provides that employees may
purchase additional insurance at premiums in accordance with such policy's group
rates, the Employee shall be entitled to purchase such additional insurance
provided the Company incurs no cost or expense in connection therewith.
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5.2 Disability Insurance. The Company shall provide the Employee
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with disability insurance in the amount equal to [sixty (60)] percent on an
annualized basis of full Base Salary plus Bonus [calculated on a basis that
Actual Performance is equal to Target Performance] at no cost to the Employee.
[5.3 Automobile. The Company shall pay to the Employee a monthly
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allowance to reimburse (i) the cost of leasing an automobile for use by the
Employee, and (ii) the operating expense including the cost of gasoline used in
the course of Company business. The monthly allowance for leasing an automobile
shall be $_______ and the operating expense allowance shall be $_______ per
month.]
5.4 Vacation. The Employee shall receive [three (3)] weeks of paid
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vacation time each calendar year during the term of his employment hereunder,
which vacation shall be prorated if the Employee's employment hereunder is
terminated prior to December 31 of any year.
5.5 Fringe Benefits. In addition to the foregoing, the Employee
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shall have the right to receive such additional fringe benefits as the Board of
Directors shall authorize from time to time for the benefit of employees of the
Company generally.
Section 6. Confidential Information, Trade Secrets and Noncompetition
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Covenant
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6.1 Confidential Information. The Employee hereby agrees that,
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except as otherwise required in the course of his performance of any duties he
may have as an employee of the Company, during the period commencing on the date
hereof and ending on the second anniversary of the date on which the Employee's
employment is terminated:
(a) Neither the Employee nor any company or organization in
which the Employee has a direct or indirect financial interest will
directly or indirectly own, manage, operate, join, control or
participate in the ownership, management, operation or control of or
be connected in any manner with, any business conducted under any
corporate or trade name of the Company or name similar thereto without
the prior written consent of the Company; and
(b) The Employee shall hold in confidence and not directly or
indirectly disclose to anyone or use or otherwise appropriate for the
Employee's own benefit (i) any pricing information, marketing
information or sales technique of the Company, or any subsidiary of
the Company, or (ii) any other of the following confidential
information or documents of or relating to the Company or any
subsidiary of the Company: confidential records, computer software
programs, client and customer lists, terms of license or franchise
agreements, terms of contracts with clients and customers, and
planning and financial information of the Company or any subsidiary of
the Company (collectively, the "Confidential
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Data"). Notwithstanding the foregoing, Confidential Data shall not
include any information of the type specified above to the extent that
such materials or information are publicly known or utilized by others
engaged in the same business or activities. The Employee hereby
acknowledges and agrees that the prohibitions against disclosure of
Confidential Data recited herein are in addition to, and not in lieu
of, any rights or remedies that the Company or any subsidiary of the
Company may have pursuant to the laws of any jurisdiction or at common
law to prevent the disclosure of trade secrets, and the enforcement by
any such corporation of its rights and remedies pursuant to this
Agreement shall not be construed as a waiver of any other rights or
available remedies that it may possess in law or equity in the absence
of this Agreement.
6.2 Use of Confidential Information. The Employee represents and
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warrants to the Company that he has not knowingly or wrongfully utilized any
trade secrets or confidential information proprietary to any former employer or
other party, including, but not limited to, confidential business information of
such former employer or other party. The Employee covenants that during the
term of this Agreement he will not induce the Company to use any confidential
information that belongs to a former employer or other party.
[6.3 Noncompetition
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(a) Coverage. The Company is engaged in the business of developing,
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marketing and selling (i) computer hardware, software, support services and pay-
per-view ordering services for the purpose of automating certain telephone-based
customer service functions, and (ii) computerized outbound telephone dialing
hardware, software and support services (these businesses, and any other
businesses in which the Company competes during the term hereof are hereafter
referred to as the "Company Business") in the United States and throughout the
world (the "Territory") addressing a variety of vertical markets, including the
financial institutions, education, cable television, health care and newspaper
industries. The Employee acknowledges that the goodwill of the Company and the
business activities of the Company extend throughout the Territory.
(b) Covenants. In consideration of the Company's continued employment
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of the Employee pursuant to the terms of this Agreement, the Employee hereby
agrees that the Employee will not, during the period commencing on the date
hereof and ending on the first anniversary of the date on which the Employee's
employment is terminated, provided that if the Employee's employment is
terminated as a result of the occurrence of a No Cause Termination Event, such
period shall end on the first anniversary of the date on which the Employee
receives his last severance payment pursuant to Section 4.3 hereof (in either
case, the "Noncompete Period") (other than as an employee of or a consultant to
the Company), directly or indirectly compete in any way by performing directly
or indirectly any managerial, executive, or consulting services relating to the
Company Business within the Territory for the Employee or for any corporation,
individual or other entity engaged
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in such business. For the purposes of this Agreement:
(i) the words "compete in any way" shall mean, with respect to
the Employee, (A) calling on, soliciting, taking away, accepting as a
client or customer or attempting to call on, solicit, take away or
accept as a client or customer any individual, partnership,
corporation, or association that is or was a client or customer of the
Company; (B) hiring, soliciting, taking away or attempting to hire,
solicit, or take away any employee of the Company either on the
Employee's behalf or on behalf of any other person or entity; or (C)
entering into any business engaging in any aspect of the Company
Business competing with the Company, either alone or with any
individual, partnership, corporation, or association; and
(ii) the words "directly or indirectly" as they modify the word
"compete" shall include (A) acting as an agent, representative,
consultant, officer, director, independent contractor or employee of
any entity or enterprise in the Company Business competing in any way
with the Company; (B) participating in any such competing entity or
enterprise as a owner, partner, limited partner, joint venturer or
stockholder; or (C) communicating to any competing person, entity, or
enterprise the names or addresses of any past, present, or prospective
client or customer of the Company or any entity having title to the
goodwill of the Company.
Notwithstanding anything contained in this Agreement to the contrary, the
Employee shall not be prohibited from owning, directly or indirectly, up to 1%
of the outstanding equity interest of any company the stock of which is publicly
traded on a national securities exchange or in the over-the-counter market.]
6.4 Severability. If a judicial determination is made that any of
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the provisions of this Section 6 constitutes an unreasonable or otherwise
unenforceable restriction against the Employee, the provisions of this Section 6
shall be rendered void only to the extent that such judicial determination finds
such provisions to be unreasonable or otherwise unenforceable. In this regard,
the Company and the Employee hereby agree that any judicial authority construing
this Agreement shall be empowered to sever or modify any portion of the
Territory, any prohibited business activity or any time period from the coverage
of this Section 6 and to apply the provisions of this Section 6 to the remaining
portion of the Territory, the remaining business activities or the remaining
time period not so severed or modified by such judicial authority.
6.5 Equitable Relief. The Employee acknowledges that the services to
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be rendered by the Employee hereunder are of a special character, the loss of
which cannot be compensated adequately in damages in an action at law. By
reason thereof, the Employee agrees that the Company shall be entitled, in
addition to any other remedies it may have under this
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Agreement or otherwise, to injunctive and other equitable relief to prevent or
curtail any breach of this Agreement by the Employee.
Section 7. Miscellaneous
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7.1 Binding Effect. This Agreement shall inure to the benefit of and
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shall be binding upon the Employee and his executor, administrator, heirs,
personal representative and assigns, and the Company and its successors and
assigns; provided, however, that the Employee shall not be entitled to assign or
delegate any of his rights or obligations hereunder without the prior written
consent of the Company.
7.2 Governing Law. This Agreement shall be deemed to be made in, and
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in all respects shall be interpreted, construed and governed by and in
accordance with, the laws of the State of Georgia. No provision of this
Agreement or any related document shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or drafted such provision.
7.3 Headings. The section and paragraph headings contained in this
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Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.4 Notices. Unless otherwise agreed to in writing by the parties
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hereto, all communications provided for hereunder shall be in writing and shall
be deemed to be given when delivered in person or five (5) business days after
being sent by first class mail and addressed as follows:
(a) If to the Employee:
Xx. Xxxx X. Xxxxxx
___________________
___________________
(b) If to the Company, addressed to:
Syntellect Inc.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxx 000X
8
Roswell, Georgia 30076
Attention: Chief Executive Officer
7.5 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
7.6 Entire Agreement. This Agreement is intended by the parties
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hereto to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement may be modified only by a written instrument
signed by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SYNTELLECT, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: J. Xxxxxxxx Xxxxxxx
Title: Chairman and CEO
EMPLOYEE
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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EXHIBIT A
For Years One, Two and Three, Target Performance shall mean net income
before taxes, excluding interest income of the Company determined in accordance
with generally accepted accounting principles consistently applied.
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EXHIBIT B
Management Incentive Program
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