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EXHIBIT 10(PPPPPP)
CONSULTING AGREEMENT
(Voice Powered Technology International, Inc.
Xxxxxx X. Xxxxxxxx)
This Consulting Agreement (this "Agreement") is entered into as of
this 2nd day of May, 1997, by and between Voice Powered Technology
International, Inc., a California corporation (the "Company"), and Xxxxxx X.
Xxxxxxxx, an individual ("Consultant").
RECITALS
A. The Company is engaged in the business of developing,
marketing, licensing, and otherwise exploiting voice recognition technology and
products.
B. The Company and Consultant are presently parties to that
certain 1993 Employment Agreement dated August 3, 1997, and as thereafter
amended (the "Employment Agreement"), pursuant to which Consultant is employed
by the Company.
C. Simultaneously with the execution of this Agreement, the
parties are executing a Termination Agreement (the "Termination Agreement")
whereby they agree to terminate the Employment Agreement.
D. The Company desires to retain Consultant to provide the
services described below upon the terms and conditions hereinafter set forth.
AGREEMENT
1. Term of Agreement. Consultant hereby agrees with the
Company to provide the services hereinafter described on the terms and
conditions set forth herein for the period commencing on the date of this
Agreement and ending on June 30, 1998 (the "Term").
2. Duties. Consultant shall assist appropriate Company
personnel using Consultant's commercially reasonable efforts to enable such
personnel to learn and take over all of the executive and other functions
previously performed by Consultant for the Company, and to provide the Company
with Consultant's advice and services on and subject to the terms herein
provided. Consultant shall provide such services, and such other services as the
Company may request which are similar to those heretofore provided by Consultant
to the Company, in person, via telephone or other means acceptable to both
parties for a minimum of two (2) days per week during the Term of this
Agreement. The Company shall give reasonable advance notice to Consultant
regarding the exact hours during which such services are to be provided.
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In addition to the foregoing duties, the Consultant may
(though he is not required to) continue to serve on the Company's Board of
Directors.
3. Nature of Services; Competition. Consultant shall use his
commercially reasonable efforts in the performance of his duties hereunder. For
a period of one (1) year immediately following the commencement of the Term
hereof, Consultant will neither permit his name to be used by, nor engage in or
carry on, directly or indirectly, either for himself or as a member or manager
of a partnership or limited liability company, or as a stockholder (except as a
stockholder of less than one percent (1%) of the issued and outstanding stock of
a publicly held corporation), investor, officer or director of a corporation or
as an employee, agent, associate or consultant of any person, partnership,
limited liability company or corporation in any business in competition with the
Company's voice recognition technology business.
4. Consulting Fee. The Company shall pay the Consultant a
consulting fee of Five Thousand Dollars ($5,000) per month on the 15th day of
each month, with the first payment due on May 15, 1997.
The Company shall pay all sums called for hereunder as and when
required notwithstanding any dispute or disagreement with Consultant concerning
his services hereunder or any other matter unless and until the Company obtains
a final judgment from a court of competent jurisdiction to the effect that the
Company is not obligated to make such payments and the appeal period and any
appeal of any such judgment has expired or concluded, as the case may be, and,
additionally, Consultant shall not have a duty to mitigate his damages
hereunder. Any failure to pay a monthly installment hereunder must be cured by
the Company within five (5) business days of its receipt of written notice of
such failure.
5. Medical Insurance. The Company will maintain health
insurance coverage for Consultant through June 30, 1997, after which all such
insurance coverage will be terminated. Thereafter, the Company will pay to
Consultant an additional Two Hundred Dollars ($200) per month during the Term of
this Agreement in lieu of providing health insurance coverage.
6. Relationship and Authority, Taxes, Insurance, Other. The
relationship between the Company and Consultant intended to be created by this
Agreement is that of an independent contractor, and nothing herein contained
shall be construed as creating a relationship of employer and employee or
principal and agent between the parties hereto. Consultant covenants and agrees
that he shall not act as if or make any representation that he is authorized to
act as an agent or officer of the Company. Consultant, not the Company, shall
pay all federal income taxes, FICA taxes, medicare taxes, state
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income taxes, state disability insurance, and all other federal, state, and
local taxes, insurance, or other charges relating to Consultant's performance of
services hereunder. Consultant shall also carry for himself any required
worker's compensation insurance.
7. Surrender of Books and Records. Consultant agrees that, as
and when requested to do so by the Company, and in any event upon the
termination of this Agreement, Consultant shall immediately surrender to the
Company all lists, books and records (and any copies thereof) of, or in
connection with, the business of the Company, and all other properties belonging
to the Company then in his possession, it being distinctly understood that all
such lists, books and records, and other documents or property are the
confidential, proprietary property of the Company.
8. Trade Secrets of the Company. Prior to and during the Term
hereof Consultant has had and will have access to and become acquainted with
various trade secrets consisting of devices, secret inventions, processes, and
compilations of information, records, and specifications, which are owned by the
Company, and which are regularly used or to be used in the operation of the
business of the Company. Consultant shall not disclose any of the aforesaid
trade secrets, directly or indirectly, or use them in any way, either during the
Term of this Agreement or at any time thereafter, except as required in the
course of rendering his services to the Company. All files, records, documents,
drawings, specifications, equipment, and similar items relating to the business
of the Company, whether prepared by the Consultant or otherwise coming into his
possession, shall remain the exclusive property of the Company and shall not be
removed under any circumstances from the premises where the work of the Company
is being carried on without the prior written consent of the Company or
consistent with the Company's normal business practices.
9. Inventions and Patents. Consultant agrees that as to any
inventions relating to the Company's business made by him during the Term of his
employment prior to the date hereof, or during the Term of this Agreement,
solely or jointly with others, which are made with the equipment, supplies,
facilities or trade secret information of the Company, or which relate at the
time of the conception or reduction to purchase of the invention to the business
of the Company (which currently is voice recognition technology products) or the
Company's actual or demonstrably anticipated research or development, or which
result from any work performed by Consultant for the Company, shall belong to
the Company, and Consultant promises to assign such inventions to the Company.
Consultant also agrees that the Company shall have the right to keep such
inventions as trade secrets, if the Company chooses. Consultant agrees to assign
to the Company Consultant's rights in any other inventions where the Company is
required to grant those rights to the United States government or any agency
thereof.
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This Agreement does not apply to any inventions which are
the subject of Section 2870 of the California Labor Code.
In order to permit the Company to claim rights to which it
may be entitled, Consultant agrees to disclose to the Company in confidence all
inventions which Consultant makes arising out of the Consultant's services
hereunder (or his prior employment) and all patent applications filed by
Consultant through expiration of the Term hereof.
Consultant shall assist the Company in obtaining patents
on all inventions, designs, improvements, and discoveries deemed patentable by
the Company in the United States and in all foreign countries, and shall execute
all documents and do all things necessary to obtain letters patent, to vest the
Company with full and extensive title thereto, and to protect the same against
infringement by others.
10. Confidential Data of Customers of the Company. Consultant
in the course of his employment prior to the commencement of the Term hereof,
and during the Term hereof, may be handling financial, accounting, statistical,
and personnel data of customers of the Company. All such data is confidential
and shall not be disclosed, directly or indirectly, or used by Consultant in any
way, either during the Term of this Agreement or at any time thereafter, except
as required in the course of rendering services hereunder.
11. Assignment. Neither the rights of the Company nor its
obligations under this Agreement may, without the consent of Consultant (which
consent may be granted or withheld in Consultant's sole and absolute
discretion), be assigned by the Company to any parent, subsidiary, or successor
of the Company; provided that such parent, subsidiary or successor acknowledges
in writing that it is also bound by the terms and obligations of this Agreement,
and any such assignment shall not release the Company from any of its
obligations hereunder. Except as provided in the preceding sentence, the Company
may not assign all or any of its rights, duties or obligations hereunder without
prior written consent of Consultant. Consultant may not assign all or any of his
rights, duties or obligations hereunder without the prior written consent of the
Company.
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12. Notices. All notices, demands, requests and other
communications required or permitted hereunder shall be in writing, and shall be
deemed to be delivered when actually received, or, if earlier and regardless of
whether actually received, three (3) business days after deposit in a regularly
maintained receptacle for United States mail, registered or certified, postage
fully prepaid, addressed to the addressee at its address set forth below or at
such other address as such party may have specified theretofore by notice
delivered in accordance with this paragraph and actually received by the
addressee:
If to Consultant:
Xx. Xxxxxx X. Xxxxxxxx
000 Xxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxxxxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
If to the Company:
Voice Powered Technology
International, Inc.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxx
With a copy to:
Xxx, Castle & Xxxxxxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
13. Miscellaneous.
1 Entire Agreement. This Agreement, the Termination
Agreement and that certain Indemnity Agreement dated August 3, 1993 between the
Company and Consultant constitute the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
negotiations and understandings of the parties in connection therewith,
including the aforementioned Employment Agreement.
2 Amendment. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated orally, or in
any manner other than by an instrument
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in writing signed by the party against which the enforcement or the change,
waiver, discharge or termination is sought.
3 Waiver. Any term or condition of this Agreement may be
waived only in writing at any time by the party hereto which is entitled to be
the benefit thereof, but such waiver shall only be effective if evidenced by a
writing signed by such party. A waiver on one occasion shall not be deemed to be
a waiver of the same or of any other breach on a future occasion.
4 Severability. If any term, provision, covenant, or
restriction is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants, or
restrictions of this Agreement shall remain in full force and effect and shall
in no way be effected, impaired, or invalidated; provided, however, that the
deletion of such term, provision, covenant, or restriction would not materially
impair the performance of the transactions contemplated hereunder.
5 Counterpart Execution. This Agreement may be executed
in two or more counterparts each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
6 Headings. The headings set out in this Agreement are
for the convenience of the parties and shall not be deemed a part of this
Agreement.
7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California and the parties
agree to submit to the jurisdiction of the courts in California with respect to
any lawsuits, judicial reference or other legal proceedings arising hereunder or
in connection herewith.
8 Dispute Resolution. Any dispute or disagreement
between the parties with respect to any term of this Agreement, the subject
matter hereof or the interpretation or enforcement hereof shall be resolved
pursuant to the dispute resolution provisions set forth in Sections 638 - 645.1
of the California Code of Civil Procedure and the unsuccessful party in any such
litigation shall pay to the successful party all costs and fees, including
reasonable attorneys' fees, incurred by the successful party and such costs and
fees shall be included in and as part of any judgment rendered in such action.
9 Legal Representation. Both parties acknowledge that
Xxx, Castle & Xxxxxxxxx, LLP has represented only the Company in connection with
the negotiation and preparation of this Agreement, and has not served as legal
counsel for Consultant in connection with same. Each party hereto has been
represented by its own separate legal counsel in
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connection with the negotiation and preparation of this Agreement. By execution
hereof, the Consultant consents to Xxx, Castle & Xxxxxxxxx, LLP representing the
Company in connection with the drafting and negotiation of this Agreement, and
waives any conflict of interest in connection therewith arising out of any past
representation of Consultant by Xxx, Castle & Xxxxxxxxx, LLP.
IN WITNESS WHEREOF, the parties hereto have executed this
Consulting Agreement as of the day and year first above written.
"COMPANY"
Voice Powered Technology
International, Inc., a
California corporation
By: /S/Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx,
President/CEO
"CONSULTANT"
Xxxxxx X. Xxxxxxxx, an
individual
By: /S/Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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