EXHIBIT 4.2
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
(Xxxxxx X. Xxxxxxxxxxxx)
THIS FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Amended
Agreement") is made effective as of January 1, 2000 (the "Effective Date"), by
and between APPLIED VOICE RECOGNITION, INC., a Delaware corporation
("Employer"), and XXXXXX X. XXXXXXXXXXXX, an individual residing in Spring,
Texas ("Employee").
W I T N E S S E T H:
WHEREAS, Employer, as successor by merger of Applied Voice
Recognition, Inc., originally a Utah corporation, and Employee executed that
certain Employment Agreement dated effective as of July 1, 1997 (the
"Agreement");
WHEREAS, prior to Employee's termination, Employer and Employee orally
agreed to allow any remaining salary payments due to Employee under the
Agreement to be paid in common stock of the Company; and
WHEREAS, Employer and Employee now desire to amend and restate the
Agreement pursuant to the terms and provisions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants contained herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereby covenant and agree to modify and
restate the Agreement as follows:
1. EMPLOYMENT. Employer hereby employs Employee and Employee
hereby accepts employment with Employer on the terms and conditions set forth in
this Amended Agreement.
2. TERM OF EMPLOYMENT. The term of Employee's employment
hereunder (the "Term") shall commence as of September 1, 1998 (the "Commencement
Date") and shall continue (subject to termination by either Employer or Employee
as hereinafter provided) for an initial term (the "Initial Term") expiring on
August 31, 2001 (the "Expiration Date"). The Expiration Date shall be
automatically extended unless terminated by Employer or Employee for successive
one year periods following the expiration of the Initial Term. If Employer
desires to terminate Employee's employment under this Amended Agreement at the
end of the Initial Term or at the end of any succeeding one year term, Employer
shall give written notice of such desire to Employee at least one month prior to
the expiration of the Initial Term or any succeeding one year term. If Employee
desires to terminate Employee's employment under this Amended Agreement at the
end of the Initial Term or at the end of any succeeding one year term, Employee
shall give written notice of such desire to Employer at least one month prior to
the expiration of the Initial Term or any succeeding one year term. At the
expiration of the then existing term, Employer shall
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have no further obligation to Employee other than payment of earned and unpaid
Base Salary (as hereafter defined) and bonuses under Sections 3(a) and 3(b),
respectively, and Employee shall have no further obligation to Employer except
as set forth in Sections 7, 8, 9 and 10.
3. COMPENSATION AND OTHER BENEFITS.
a. As compensation for all services rendered by Employee
in performance of Employee's duties or obligations under this Amended Agreement,
Employer shall pay Employee a monthly base salary (the "Base Salary") as
follows:
(i) for the period from the Commencement Date
through February 28, 1999, the sum of TEN THOUSAND FIVE HUNDRED
EIGHTY-THREE AND NO/100 DOLLARS ($10,583.00);
(ii) for the period of March 1, 1999 through
August 31, 1999, the sum of ELEVEN THOUSAND SEVEN HUNDRED FIFTY AND
NO/100 DOLLARS ($11,750.00); and
(iii) for the period of September 1, 1999 through the
Expiration Date, the sum of TWELVE THOUSAND TWO HUNDRED FIFTY AND
NO/100 DOLLARS ($12,250.00).
Employee's Base Salary shall be payable in equal semi-monthly
installments or in the manner and on the timetable which Employer's payroll is
customarily handled or at such intervals as Employer and Employee may hereafter
agree to from time to time.
b. In addition to receiving the Base Salary provided for
in Section 3(a), for the portion of the calendar year beginning with the
Commencement Date and each calendar year thereafter during the Term hereof,
Employee shall be entitled to a bonus of up to $153,000 per year (or pro rata
for portions of a year) if, and only if, Employee has met the performance
criteria set by Employer for the applicable year. In connection therewith,
Employer agrees that by October 1, 1998 and by January 31 of each year
thereafter, it shall set the performance criteria for Employee's bonus to be
earned during the applicable year and shall communicate such criteria to
Employee in writing. If Employee successfully meets the performance criteria
established by Employer (in the discretion of Employer), Employer shall pay to
Employee the bonus within thirty (30) days of the end of the applicable year.
c. Employee shall be entitled to be reimbursed by
Employer for all reasonable and necessary expenses incurred by Employee in
carrying out Employee's duties under this Amended Agreement in accordance with
Employer's standard policies regarding such reimbursements.
d. Beginning within thirty (30) days of the Commencement
Date, Employee shall be entitled during the Term, upon satisfaction of all
eligibility requirements, if any, to participate in all health, dental,
disability, life insurance and other benefit programs now or
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hereafter established by Employer which cover substantially all other of
Employer's employees and shall receive such other benefits as may be approved
from time to time by Employer.
e. Employee shall be entitled to receive two weeks of paid
vacation for each year during the Term following the first anniversary of the
Commencement Date and shall be entitled to receive paid holidays as enjoyed by
all other employees of Employer.
f. Employee shall be entitled, during the Term of this
Amended Agreement, to receive a monthly automobile allowance of $750.
4. DUTIES.
a. Employee is employed to act as Vice President of Sales
and Marketing of the Employer and in such other office or position as shall be
assigned to Employee from time to time by Employer, and to perform such duties
as are commensurate with Employee's position with Employer.
b. Employee agrees that during the period of employment,
Employee shall devote full-time efforts to Employee's duties as an employee of
Employer and Employee shall use Employee's best efforts to perform the duties of
Employee's position in an efficient and competent manner and shall use
Employee's best efforts to promote the interests of Employer and any affiliated
companies.
c. During the period of employment, Employee agrees not
to (i) solely or jointly with others undertake or join any planning for or
organization of any business activity competitive with the business activities
of Employer, and (ii) directly or indirectly, engage or participate in any other
activities in conflict with the best interests of Employer.
d. Employee agrees that during the period of employment
Employee shall refer to Employer all opportunities in the computer industry
related to voice recognition software designs and applications to which Employee
might become exposed in carrying out Employee's duties and responsibilities
hereunder.
5. STOCK OPTION PLAN. As a further inducement to Employee to
accept employment upon the terms set forth herein and in consideration of
Employee's execution of this Amended Agreement, Employee shall be granted
options entitling Employee to purchase 150,000 shares of Employer's common
stock, par value $0.001 (the "Options"), pursuant to, and Employee shall be
entitled to otherwise participate in, that certain Applied Voice Recognition,
Inc. 1997 Incentive Plan, as amended from time to time. The granting instrument
for the Options will provide, in addition to other terms set forth therein, that
(i) the purchase price for the Options shall be the average bid and ask price
for Employer's shares of common stock on the NASDAQ OTCBB (or any national
securities exchange hereafter listing Employer's common stock) on the day prior
to the Commencement Date, and (ii) one third (1/3rd) of the Options (being
options to purchase 50,000 shares) will vest on the first anniversary date of
the Commencement Date, and approximately one twenty-fourth (1/24th) of the
remaining Options will vest on the last day of each month following the first
anniversary date of the Commencement Date (specifically options to purchase
2,083 shares
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on the last day of months one through twenty-three and 2,091 shares on the last
day of the twenty-fourth month).
6. TERMINATION OF EMPLOYMENT. Employee's employment and this
Amended Agreement shall terminate upon the earliest to occur of any of the
following events (the actual date of such termination being referred to herein
as the "Termination Date"):
a. The termination of the Amended Agreement pursuant to
Section 2.
b. Employee's employment pursuant hereto shall terminate
in the event of the death of Employee.
c. Employer may terminate Employee's employment under
this Amended Agreement for cause without any prior notice (except as set forth
in subparagraph (3) below), upon the occurrence of any of the following events:
(1) any embezzlement or wrongful diversion of funds
of Employer or any affiliate of Employer by Employee;
(2) gross malfeasance by Employee in the conduct of
Employee's duties;
(3) breach of this Amended Agreement and the failure
to cure such breach following reasonable notice thereof;
(4) gross neglect by Employee in carrying out
Employee's duties; or
(5) the failure of Employee to be able to perform
Employee's duties hereunder for a period of not less than ninety (90)
days by reason of disability. For purposes of this Amended Agreement,
Employee shall be deemed to have become disabled when the Board of
Directors of Employer, upon the advice of a qualified physician, shall
have determined that Employee has become physically or mentally
incapable (excluding infrequent and temporary absences due to ordinary
illness) of performing Employee's duties under this Amended Agreement.
Before making any termination decision pursuant to this Section
6(c)(5), the Board of Directors of Employer shall determine whether
there is any reasonable accommodation (within the meaning of the
Americans with Disabilities Act) which would enable Employee to
perform the essential functions of Employee's position under this
Amended Agreement despite the existence of any such disability. If
such a reasonable accommodation is possible, Employer shall make that
accommodation and shall not terminate Employee's employment hereunder
based on such disability.
d. If Employee's employment is terminated for any of the
reasons specified in Section 6, Employer shall no longer be obligated to make
the payments specified under
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Section 3 or to pay to Employee any other compensation or benefits whatsoever,
except as may otherwise be provided in Section 6(e). Notwithstanding the
foregoing, if for any reason Employee's employment is terminated hereunder, any
salary or bonus payable under Sections 3(a) or 3(b) which shall have been earned
but not yet paid shall be paid by Employer to Employee or Employee's estate, as
the case may be.
e. Employer shall have the right to terminate Employee's
employment hereunder without prior notice and without cause; provided, however,
in such event, Employee shall continue to receive his Base Salary for six (6)
months following the date of such termination or, at the Employee's option, any
amount of the severance may be paid to Employee in shares of the Company's
common stock, par value $.001 per share (the "Common Stock"), at a 35% discount
to the Nasdaq Over-the-Counter Bulletin Board closing bid price on the day
before the filing of a Form S-8 covering such shares of Common Stock. If this
Amended Agreement is terminated by Employer under this Section 6(e), any Options
that would otherwise vest on or before the next vesting period (be it annual or
monthly) shall automatically become fully vested immediately upon termination;
however, any additional unvested Options shall be cancelled upon termination.
Notwithstanding the foregoing, the prior provisions of this Section 6(e) shall
be void and of no force or effect in the event of (i) the sale of substantially
all of the assets of Employer, (ii) the merger of Employer into another entity,
or (iii) the merger of another entity into Employer if, as a result of any
transaction described in clause (i), (ii) or (iii), the shareholders of Employer
do not control a majority of the shares of the surviving entity. In the event of
any such sale or merger, any of the Options that have not yet vested shall
immediately vest.
7. INVENTIONS AND CREATIONS BELONG TO EMPLOYER.
a. Any and all inventions, discoveries, improvements or
creations (collectively, "Creations") which Employee has conceived or made or
may conceive or make during the period of employment in any way, directly or
indirectly, connected with Employer's business shall be the sole and exclusive
property of Employer. Employee agrees that all copyrightable works created by
Employee or under Employer's direction in connection with Employer's business
are "works made for hire" and shall be the sole and complete property of
Employer and that any and all copyrights to such works shall belong to Employer.
To the extent any of the works described in the preceding sentence are not
deemed to be "works made for hire," Employee hereby assigns all proprietary
rights, including copyright, in these works to Employer without further
compensation.
b. Employee further agrees to (i) disclose promptly to
Employer all such Creations which Employee has made or may make solely, jointly
or commonly with others during the period of employment to the extent connected
with Employer's business, (ii) assign all such Creations to Employer, and (iii)
execute and sign any and all applications, assignments or other instruments
which Employer may deem necessary in order to enable Employer, at Employer's
expense, to apply for, prosecute and obtain copyrights, patents or other
proprietary rights in the United States and foreign countries or in order to
transfer to Employer all right, title and interest in said Creations.
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8. CONFIDENTIALITY; OWNERSHIP OF INFORMATION. Employer
promises that Employer will, during the Term, provide Employee with access to
such Confidential Information (as defined in Section 8(a)) owned by Employer and
that is used in the operation of Employer's business as reasonably necessary to
allow Employee to perform Employee's obligations hereunder. Employee
acknowledges that Employer has agreed to provide Employee with a definite term
of employment and with access to such Confidential Information of Employer
during that term of employment.
a. DEFINITION. For purposes of this Amended Agreement,
"Confidential Information" means any and all information relating directly or
indirectly to Employer that is not generally ascertainable from public or
published information or trade sources and that represents proprietary
information to Employer, excluding, however, (i) Employees' business contacts,
(ii) information already known to Employee prior to Employee's employment with
Employer, and (iii) information required to be divulged in any legal or
administrative proceeding in which Employee is involved. Confidential
Information shall consist of, for example, and not intending to be inclusive,
(A) software (source and object codes), algorithms, computer processing systems,
techniques, methodologies, formulae, processes, compilations of information,
drawings, proposals, job notes, reports, records and specifications, and (B)
information concerning any matters relating to the business of Employer, any of
its customers, prospective customers, customer contacts, licenses, the prices it
obtains or has obtained for the licensing of its software products and services,
or any other information concerning the business of Employer and Employer's good
will.
b. NO DISCLOSURE. During the Term and at all times there
after, Employee shall not disclose or use in any manner, directly or indirectly,
and shall use Employee's best efforts and shall take all reasonable precautions
to prevent the disclosure of, any such trade secrets or other Confidential
Information, except to the extent required in the performance of Employee's
duties or obligations to Employer hereunder or by express prior written consent
of a duly authorized officer or director of Employer (other than Employee).
c. OWNERSHIP OF INFORMATION. Such Confidential
Information is and shall remain the sole and exclusive property and proprietary
information of Employer or Employer's customers, as the case may be, and is
disclosed in confidence by Employer or permitted to be acquired from such
customers in reliance on Employee's Amended Agreement to maintain such
Confidential Information in confidence and not to use or disclose such
Confidential Information to any other person except in furtherance of Employer's
business.
d. RETURN OF MATERIAL. Upon the expiration or earlier
termination of this Amended Agreement for any reason, Employee shall immediately
turn over to Employer all documents, disks or other magnetic media, or other
material in Employee's possession or under Employee's control that (i) may
contain or be derived from Creations or Confidential Information, or (ii) are
connected with or derived from Employee's services to Employer. Employee shall
not retain any Confidential Information in any form (e.g., computer hard drive,
microfilm, etc.) upon the expiration or earlier termination of this Amended
Agreement.
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9. NONCOMPETE; WORKING FOR COMPETITOR. In consideration of
Employee's employment by Employer, Employee will not, at any time during the
Term or at any time for twenty-four (24) months subsequent to any termination of
Employee's employment pursuant to the provisions of Section 6(c) or the
voluntary termination of employment by Employee pursuant to Section 2, directly
or indirectly, within the United States, Canada, Mexico, South America or
Europe, for Employee's own account or on behalf of any direct competitors of
Employer, engage in any business or transaction involving the design,
installation, integration, service or consulting with respect to voice
recognition software designs and applications (whether as an employee, employer,
independent contractor, consultant, agent, principal, partner, stockholder,
corporate officer, director or in any other individual or representative
capacity), without the prior written consent of Employer, which consent may be
withheld by Employer in Employer's sole and absolute discretion.
10. NON-SOLICITATION OF EMPLOYEES. During the Term and for a
period of twenty-four (24) months after the date of termination of employment,
Employee will not in any way, directly or indirectly (i) induce or attempt to
induce any employee of Employer to quit employment with Employer; (ii) otherwise
interfere with or disrupt Employer's relationship with its employees; (iii)
solicit, entice or hire away any employee of Employer; or (iv) hire or engage
any employee of Employer or any former employee of Employer whose employment
with Employer ceased less than one year before the date of such hiring or
engagement. Employee acknowledges that any attempt on the part of Employee to
induce others to leave Employer's employ, or any effort by Employee to interfere
with Employer's relationship with its other employees would be harmful and
damaging to Employer.
11. EMPLOYEE'S ACKNOWLEDGEMENT. It is the express intention of
Employee and Employer to comply with sections 15.50 et seq. of the Texas
Business and Commerce Code in effect as of the date of execution hereof.
Employee stipulates that the provisions of this Amended Agreement are not
oppressive or overly burdensome to Employee and will not prevent Employee from
earning an income following termination of this Amended Agreement. Employee
warrants and represents that:
a. Employee is familiar with non-compete and non-
solicitation covenants;
b. Employee has discussed or acknowledges the opportunity
to discuss the provisions of the non-compete and non-solicitation covenants
contained herein with Employee's attorney and has concluded that such provisions
(including, without limitation, the right to equitable relief and the length of
time provided for herein) are fair, reasonable and just under the circumstances;
c. Employee is fully aware of the obligations,
limitations and liabilities included in the non-compete and non-solicitation
covenants contained in this Amended Agreement;
d. The scope of activities covered hereby are
substantially similar to those activities to be performed by Employee under this
Amended Agreement;
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e. The twenty-four (24) month non-compete and non-
solicitation period is a reasonable restriction, giving consideration to the
following factors: (1) Employee and Employer reasonably anticipate that this
Amended Agreement, although terminable under certain provisions, will continue
in effect for sufficient duration to allow Employee to attain superior
bargaining strength and an ability for unfair competition with respect to the
customers covered hereby; (2) the duration of the twenty-four (24) month non-
compete and non-solicitation period is a reasonably necessary period to allow
Employer to restore its position of equivalent bargaining strength and fair
competition with respect to those customers covered hereby; and (3)
historically, employees of all types have remained with Employee for a duration
of longer than the duration of the twenty-four (24) month non-compete and non-
solicitation period; and
f. The limitations contained in this Amended Agreement
with respect to geographic area, duration and scope of activity are reasonable;
however, if any court shall determine that the geographic area, duration or
scope of activity of any restriction contained in this Amended Agreement is
unenforceable, it is the intention of the parties that such restrictive
covenants set forth herein shall not thereby be terminated, but shall be deemed
amended to the extent required to render such covenants valid and enforceable.
12. REMEDIES; INJUNCTION. In the event of a breach or
threatened breach by Employee of any of the provisions of this Amended
Agreement, Employee agrees that Employer, in addition to and not in limitation
of any other rights, remedies or damages available to Employer at law or in
equity, shall be entitled to a permanent injunction without the necessity of
proving actual monetary loss in order to prevent or restrain any such breach by
Employee or by Employee's partners, agents, representatives, servants, employees
and/or any and all persons directly or indirectly acting for or with Employee.
It is expressly understood between the parties that this injunctive or other
equitable relief shall not be Employer's exclusive remedy for any breach of this
Amended Agreement, and Employer shall be entitled to seek any other relief or
remedy which it may have by contract, statute, law or otherwise for any breach
hereof.
13. ARBITRATION. The parties agree that all disputes or
questions arising in connection with this Amended Agreement and/or the
termination of Employee's employment hereunder shall be settled by a single
arbitrator pursuant to the rules of the American Arbitration Association in the
City of Houston, Texas, and the award of the arbitrators shall be final, non-
appealable, conclusive and enforceable in a court of competent jurisdiction;
provided, however, notwithstanding the foregoing, in no event shall any dispute,
claim or this Amended Agreement arising under Sections 7, 8, 9 and 10 of this
Amended Agreement that requires injunctive or other equitable relief be required
to be submitted to arbitration pursuant to this provision or otherwise.
14. NOTICES. Any notice, demand or request which may be
permitted, required or desired to be given in connection therewith shall be
given in writing and directed to Employer and Employee as follows:
If to Employer, at: Applied Voice Recognition, Inc.
0000 Xx. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chairman
Facsimile No.: (000) 000-0000
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with a copy to: Xxxxx, Xxxxx & Xxxxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or, if to Employee, at: Xx. Xxxxxx X. Xxxxxxxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Notices shall be deemed properly delivered and received when and if either: (i)
personally delivered; (ii) delivered by nationally-recognized overnight courier;
(iii) when deposited in the U.S. Mail, by registered or certified mail, return
receipt requested, postage prepaid; or (iv) sent via facsimile transmission with
confirmation mailed by regular U.S. mail. Any party may change its notice
address for purposes hereof to any address within the continental United States
by giving written notice of such change to the other parties hereto at least
fifteen days prior to the intended effective date of such change.
15. SEVERABILITY. If any provision of this Amended Agreement is
rendered or declared illegal or unenforceable by reason of any existing or
subsequently enacted legislation or by decree of a court of last resort,
Employer and Employee shall promptly meet and negotiate substitute provisions
for those rendered or declared illegal or unenforceable, but all the remaining
provisions of this Amended Agreement shall remain in full force and effect.
16. ASSIGNMENT. This Amended Agreement may not be assigned by
any party without the prior written consent of the other parties.
17. BINDING AMENDED AGREEMENT. This Amended Agreement shall be
binding upon and shall inure to the benefit of the parties hereto, and their
respective legal representatives, heirs, successors and permitted assigns.
18. GOVERNING LAW. This Amended Agreement shall be governed by
and construed in accordance with the laws of the State of Texas.
19. ATTORNEYS FEES. In the event of any dispute between the
parties regarding this Amended Agreement, the prevailing party shall be entitled
to be reimbursed for such prevailing party's attorneys fees and costs of court
by the non-prevailing party.
20. AMENDED AGREEMENT READ, UNDERSTOOD AND FAIR. Employee has
carefully read and considered all provisions of this Amended Agreement and
agrees that all of the restrictions set forth are fair and reasonable and are
reasonably required for the protection of the interests of Employer.
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IN WITNESS WHEREOF, the parties have executed this Amended Agreement
on this 9th day of February, 2000, effective as of the Effective Date.
EMPLOYER:
APPLIED VOICE RECOGNITION, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx, Chairman
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxxxxxx
------------------------------------
XXXXXX X. XXXXXXXXXXXX
Signature Page to
First Amended and Restated
Employment Agreement
(Xxxxxx X. Xxxxxxxxxxxx)
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