EMPLOYMENT AGREEMENT
THIS Employment Agreement ("Agreement") is made and entered into this 27th
day of March, 1997, by and between Xxxxx Xxxxxx ("Employee") and Brite Voice
Systems, Inc. ("Brite").
WHEREAS, Brite desires to engage Employee to perform services for Brite,
and Employee desires to perform such services on the terms and conditions set
forth herein:
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in consideration of the
covenants and obligations herein contained, the parties hereto agree as
follows:
1. EMPLOYMENT AND DUTIES. From and after March 28, 1997, ("Commencement
Date") Brite shall employ Xxxxx Xxxxxx as Vice President of Human
Resources and Corporate Communications. Such Employee, at this time,
shall report to the CEO. Employee shall use his best and most diligent
efforts on a full time, exclusive basis to promote the best interests of
Brite.
2. COMPENSATION AND BENEFITS.
A. SALARY. Employee's initial annual salary shall be $150,000
("Base Salary") payable pursuant to Brite's customary payroll policies in
force at the time of payment.
B. BONUS. For each year of employment commencing with calendar
year 1997, Employee will be entitled to participate in an incentive
compensation program which shall be based on the performance of Employee
measured against performance targets established for Employee. For
calendar year 1997, such bonus program shall provide for bonus
compensation of 20% of base salary if targeted performance is attained,
and additional bonus compensation, not to exceed an additional 30% of base
salary, upon the attainment of performance levels above the target
performance goal. For years subsequent to calendar year 1997, Employee
will be entitled to participate in such incentive compensation programs as
shall be established for other employees of Brite holding positions of
similar responsibility. In the first year the bonus will be based 50% on
the overall financial performance of the company and 50% on specific
personal objectives to be determined by May 1, 1997.
C. BENEFITS. Employee will be entitled to participate in Brite's
benefits provided to other employees having similar responsibilities with
Brite, as established and/or modified by Brite from time to time,
including, but not limited to, paid vacation time (three weeks), life
insurance, health insurance and dental insurance. The current benefit
program is represented by Attachment A.
D. BUSINESS EXPENSES. Pursuant to Brite's customary policies in
force at the time of payment, Employee shall be promptly reimbursed
against presentation of vouchers or receipts, for all authorized expenses
properly incurred by him in the performance of his duties hereunder.
3. RELOCATION.
Employee shall be entitled to the relocation package as described in
Attachment B.
47
4. TERMINATION.
A. TERMINATION FOR CAUSE. If Employee's employment is terminated
and such termination is a Termination for Cause, Employee shall be
entitled to payment of his Base Salary to the date of termination, accrued
bonus (if any) and benefits existing at the time of termination of his
employment. Termination for Cause means one or more of: (i) voluntary
termination of employment by Employee for any reason; (ii) the death of
Employee; (iii) Employee having been unable to render services required of
him hereunder for a consecutive period of six months or for any period in
the aggregate of six months in any twelve month period because of a
serious and continuing health impairment, which impairment will most
likely result in Employee's continued inability to render the services
required of him hereunder; (iv) Employee's misappropriation of corporate
funds; (v) Employee's conviction of a felony; (vi) Employee's conviction
of any crime involving theft, dishonesty, or moral turpitude; (vii)
Employee's failure to devote substantially his full business time to Brite
as provided in Section 1 hereof; (viii) falsification of any material
representation made by Employee to Brite; or, (ix) the commission by
Employee of a material breach of the terms of this Agreement.
B. TERMINATION OTHER THAN FOR CAUSE. If Employee's employment with
Brite is terminated and such termination is not a Termination for Cause,
Employee will be entitled to severance pay equal to one year of salary and
benefits, plus that portion of Employee's Base Salary, bonus and benefits
that had accrued as of the termination date. The foregoing payments and
benefits shall constitute full satisfaction of any and all payments or
benefits that might otherwise be due Employee hereunder.
5. OPTIONS TO PURCHASE COMMON STOCK
On the Commencement Date, or as soon thereafter as is practicable,
the Board of Directors of Brite shall grant Employee an option to purchase
25,000 shares of Brite's common stock. The terms of such option grant
shall be set forth in a stock option agreement in form substantially the
same as that set forth in Exhibit C hereto, with the option exercise price
being established at the close of business on the grant date. The stock
option agreement shall further provide that the options granted thereunder
shall vest ratably over a four year period, subject in all respects to the
terms of the Company's 1994 Stock Option Plan. Additional grants of
10,000 shares may be made annually subject to approval of the Board of
Directors.
6. CONFIDENTIAL INFORMATION.
A. DEFINITION OF CONFIDENTIAL INFORMATION. For purposes of this
Agreement, the term "Confidential Information" means:
That secret, proprietary information of Brite not otherwise
publicly disclosed (whether or not discovered or developed by
Employee) and known by Employee as a consequence of Employee's
employment with Brite. Without limiting the generality of the
foregoing, such proprietary information shall include:
information not generally known in the industry or related
industries which concerns (i) customer lists; (ii) computer
programs and facilities; (iii) the identity of specialized
48
consultants and contractors and confidential information
developed by them for Brite; (iv) operating and other cost data,
including information regarding salaries and benefits of
employees; (v) cost and pricing data; (vi) acquisition,
expansion, marketing, financial and other business plans; (vii)
Brite manuals, files, records; memoranda, plans, drawings and
designs, specifications and computer programs and records; and
(viii) all information which is a "trade secret" as defined in
the Uniform Trade Secrets Act as adopted in Kansas at K.S.A. 60-
3320.
B. CONFIDENTIAL INFORMATION. During Employee's employment with
Brite, Employee will have access to and become familiar with Confidential
Information of Brite. Employee acknowledges that such Confidential
Information is owned and shall continue to be owned solely by Brite.
During the term of Employee's employment with Brite and after termination
of such employment, Employee shall not use or divulge Confidential
Information to any person or entity other than Brite, or persons to whom
Brite has given its written consent, unless such information has become
common knowledge and is no longer Confidential Information.
C. RETURN OF DOCUMENTS. Upon termination of Employee's employment
with Brite, all procedural manuals, guides, specifications, plans,
drawings, designs, records, lists, notebooks, software, diskettes,
customer lists, pricing documentation and other property which is or
contains Confidential Information, including all copies thereof, in the
possession or control of Employee, whether prepared by Employee or others,
shall be forthwith delivered by Employee to Brite.
7. COVENANTS NOT TO COMPETE.
A. RESTRICTIVE COVENANT. Employee covenants and agrees that
during Employee's employment with Brite and for a period of one year
following the date of termination of Employee's employment with Brite (the
"Restricted Period"), Employee shall not, without the prior written
approval of the President of Brite, in any manner compete with Brite or
any successor to the business of Brite, as an owner, officer, director,
employee, agent, consultant, lender or otherwise, with any person or
entity in a business involving a line of business conducted by Brite
during the term of Employee's employment.
B. SOLICITATION OF EMPLOYEES. During the one-year period
following Employee's termination of employment with Brite, Employee shall
not without the prior written approval of the President of Brite, directly
or indirectly solicit, raid, entice, or induce any person who is, or was
at any time within six months prior to such termination, an employee of
Brite, to become employed by any other person, firm, or corporation in any
business which is in any manner in competition with Brite. Furthermore,
Employee shall inform Brite in writing if any other person employed by
Brite contacts Employee for the purpose of seeking employment during such
one year period.
C. NEW DEVELOPMENTS. Employee agrees that any developments made by
Employee or under Employee's direction in connection with the work of
Brite shall be the sole and complete property of Brite and that any and
all copyrights, patent rights and other proprietary rights therein shall
belong to Brite. Employee shall cooperate with Brite and execute any
documents prepared by Brite to secure or protect any such rights.
49
D. REASONABLENESS OF RESTRICTIONS, REFORMATION, AND SEVERABILITY.
Employee has carefully read and considered the provisions of this Section
7 and, having done so agrees that the restrictions set forth herein,
including, but not limited to, the duration of the Restricted Period and
the scope of the restriction are fair and reasonable and are reasonably
required for the protection of the interests of Brite.
In the event that, notwithstanding the foregoing any part of the
covenants set forth in this Section 7 shall be held to be invalid or
unenforceable, the remaining parts thereof shall nevertheless continue to
be valid and enforceable as though the invalid or unenforceable parts had
not been included therein. In the event that any provision of this Section
7 relating to the time period and/or scope of the restrictions shall be
declared by a court of competent jurisdiction to exceed the maximum time
period or area as such court deems reasonable and enforceable, said time
period and;/or areas of restrictions shall be deemed to become and
thereafter bye the maximum time period and/or scope which such court deems
reasonable and enforceable.
Any provision hereof otherwise prohibited by or unenforceable
under any applicable law or public policy in any jurisdiction which cannot be
reformed in accordance with the provisions herein, shall, as to such
jurisdiction, be ineffective without affecting any other provision of this
Agreement, or shall be deemed to be served or otherwise modified to conform
with such law or public policy; and the remaining provisions of this agreement
shall remain in force., provided that the purpose of this Agreement can be
effected. To the full extent, however, that the provisions of such applicable
law or public policy may be waived, this Agreement shall be deemed to be a
waiver thereof. The parties hereto understand and agree that all the covenants
set forth herein are an shall be separately enforceable, each to the full
extent permitted by applicable law.
E. TOLLING PERIOD. It if should become desirable for necessary for
Brite to seek compliance with this Section 7 by judicial proceedings, the
period during which Employee shall comply with its provisions shall extend
to the first anniversary of the date of the final, nonappealable order
requiring such compliance.
F. REMEDIES. It is agreed that Brite would be irreparably damaged
by reason of any violation of the provisions of this agreement and that
any remedy at law for a breach of the provisions of this agreement would
be inadequate. Therefore, Brite shall be entitled to seek injunctive or
other equitable relief in a court of competent jurisdiction against
Employee or Employee's agents, affiliates, partners, or other associates,
for any breach or threatened breach of this Agreement, without the
necessity of proving actual monetary loss. It is expressly understood that
the remedy described in this Paragraph F shall not be the exclusive remedy
of Brite for any breach of this agreement, and Brite shall be entitled to
seek such other relief or remedy at law or in equity to which it may be
entitled as a consequence of any breach of this Agreement.
8. NOTICES.
Any notice permitted or required to be given under this Agreement
shall be sufficient if in writing and delivered personally or by
registered mail return receipt requested, if to Employee, Xxxxx Xxxxxx at
his residence address as reflected in Brite's records, and if to Brite,
to the attention of President, Brite Voice Systems, Inc., 7309
00
Xxxx 00xx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxx 00000. A party may change its
address for receipt of notices by complying with this section.
9. ENTIRE AGREEMENT.
This agreement contains the entire understanding of the parties in
respect of its subject matter and supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
10. AMENDMENT; WAIVER.
This agreement may not be amended, supplemented, canceled or
discharged except by written instrument executed by the party affected
thereby. No failure to exercise, and no delay in exercising , any right,
power or privilege hereunder shall operate as a waiver thereof. No waiver
of any breach of any provision of this agreement shall be deemed to be a
waiver of any preceding or succeeding breach of the same or any other
provision.
11. BINDING EFFECT; ASSIGNMENT.
The rights and obligations of this Agreement shall bind and inure to
the benefit of any successor of Brite by reorganization, merger or
consolidation or any assignee of all or substantially all of Brite's
business and properties. Employee's rights or obligations under this
Agreement may not be assigned by employee, except that upon Employee's
death, all right to compensation hereunder shall pass to Employee's
executor or administrator.
12. HEADINGS.
The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
13. GOVERNING LAW; INTERPRETATION.
This Agreement shall be construed in accordance with, and governed
for all purposes by, the laws and public policy of the State of Florida
applicable to contracts executed and to be wholly performed with such
State.
14. FURTHER ASSURANCES
Each of the parties agrees to execute, acknowledge, deliver and
perform, and/or cause to be executed, acknowledged, delivered and
performed at any time and/or from time to time, as the case may be, all
such further acts, documents, transfers, conveyances, and/or assurances as
may be necessary and/or proper to carry out the provisions and/or intent
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
effective the date first above written.
BRITE VOICE SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
EMPLOYEE
/s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
51
