Exhibit 10.2
EXECUTION COPY
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made and entered into as
of the 21st day of May, 2009, by and between Comverse Technology, Inc., a New
York corporation (together with its successors and assigns permitted under this
Agreement, the "Company"), and Xxxxxxx X. Xxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to employ the Executive as its Executive
Vice President and Chief Financial Officer and to enter into an employment
agreement embodying the terms of such employment; and
WHEREAS, the Executive desires to enter into this Agreement and to
accept such employment, subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is mutually acknowledged, the Company and the Executive
(individually a "Party" and together the "Parties"), intending to be legally
bound, agree as follows:
1. Definitions.
(a) "Base Salary" shall mean the Executive's base salary as determined
in accordance with Section 4 below, including any applicable increases and
permitted decreases.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Cause" shall mean:
(i) an indictment or conviction of the Executive of, or a
plea of nolo contendere by the Executive to, any felony;
(ii) a material violation by the Executive of federal or
state securities laws, as determined by a court or other
governmental body of competent jurisdiction;
(iii) willful misconduct or gross negligence by the Executive
with regard to the Company resulting in material and
demonstrable harm to the Company;
(iv) a material violation by the Executive of any material
Company policy or procedure provided to the Executive,
including without limitation a material violation of the
Company's Code of Business Conduct and Ethics, resulting
in material and demonstrable harm to the Company;
(v) the repeated and continued failure by the Executive to
carry out, in all material respects, the reasonable and
lawful directions of the Company's Chief Executive
Officer and President and/or Board that are within the
Executive's individual control and consistent with the
Executive's status as a senior executive of the Company
and his duties and responsibilities hereunder; provided
such failure has continued after it has been brought to
the Executive's attention by the Chief Executive Officer
and President and/or Board, except, in all cases, for a
failure that is attributable to the Executive's illness,
injury or Disability; or
(vi) fraud, embezzlement, theft or material dishonesty by the
Executive against the Company (other than good faith
immaterial expense account disputes);
provided, however, that no finding of Cause pursuant to subsections (iii) or
(iv) hereof shall be effective unless and until the Company has provided the
Executive with written notice thereof in accordance with Section 25 below
stating with specificity the facts and circumstances underlying the finding of
Cause and, if the basis for such finding of Cause is capable of being cured by
the Executive, providing the Executive with an opportunity to cure the same
within thirty (30) calendar days after receipt of such notice in accordance with
Section 25 below.
For purposes of this Agreement, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith and without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon specific direction given pursuant to a
resolution adopted by the Board of Directors or on the advice of Company counsel
shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company.
Notwithstanding the above, any termination of Executive's employment based on
Cause shall not be deemed to be for Cause unless and until Executive has been
provided with (i) written notice specifying in detail the basis for such action
and (ii) on at least (10) days prior notice, an opportunity, together with legal
counsel, to be heard on such proposed determination with the Company's Chief
Executive Officer and Chairman of the Company's Audit Committee.
(d) "Change in Control" shall occur upon:
(i) any person, entity or affiliated group becoming the
beneficial owner or owners of more than fifty percent
(50%) of the outstanding equity securities of the
Company, or otherwise becoming entitled to vote shares
representing more than fifty percent (50%) of the total
voting power of the Company's then-outstanding
securities eligible to vote to elect members of the
Board (the "Voting Securities");
(ii) a consolidation or merger (in one transaction or a
series of related transactions) of the Company pursuant
to which the holders of the Company's equity securities
immediately prior to such transaction (or series of
related transactions) would not be the holders
immediately after such transaction (or series of related
transactions) of more than fifty percent (50%) of the
Voting Securities of the entity surviving such
transaction (or series of related transactions);
(iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the
entire Board ceased for any reason to constitute a
majority thereof unless the election, or the nomination
for election by the Company's shareholders, of each new
director was approved by a vote of at least two-thirds
of the directors then still in office who were directors
at the beginning of the period; or
(iv) a sale of all or substantially all of the Company's
assets.
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(e) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(f) "Compensation Committee" shall mean the Compensation Committee of
the Board or another committee of the Board that performs the functions
typically associated with a compensation committee.
(g) "Disability" shall mean the Executive's inability to substantially
perform his duties and responsibilities under this Agreement for a period of six
(6) consecutive months or nine (9) out of twelve (12) nonconsecutive months due
to a physical or mental disability, as the term "physical or mental disability"
is defined in the Company's long-term disability insurance plan then in effect
(or would be so found if the Executive applied for coverage or benefits under
such plan).
(h) "Effective Date" shall mean May 26, 2009.
(i) "Good Reason" shall mean, without the Executive's prior written
consent, the occurrence of any of the following events or actions, provided that
no finding of Good Reason shall be effective unless and until the Executive has
provided the Company, within sixty (60) calendar days of becoming aware of the
facts and circumstances underlying the finding of Good Reason, with written
notice thereof in accordance with Section 25 below stating with specificity the
facts and circumstances underlying the finding of Good Reason and, if the basis
for such finding of Good Reason is capable of being cured by the Company,
providing the Company with an opportunity to cure the same within thirty (30)
calendar days after receipt of such notice in accordance with Section 25 below:
(i) any reduction in the Executive's Base Salary or Target
Bonus, other than as part of an across-the-board
reduction applicable to all senior executives of the
Company that results in a reduction to the Executive
proportional to that of other executives, provided,
however, that an across-the-board reduction of
Executive's compensation in excess of 10% of Base Salary
or 20% of Target Bonus shall constitute Good Reason;
(ii) an actual relocation of the Executive's principal office
to another location more than 35 miles from Washington,
D.C.;
(iii) any material diminution in the Executive's title,
position or reporting status, or any material diminution
of the Executive's duties or responsibilities;
(iv) notice to Executive of the Company's intention not to
renew this Agreement pursuant to Section 2 below;
(v) a failure of the Company to obtain the assumption in
writing of its obligations under this Agreement by any
successor to all or substantially all of the assets of
the Company within ten (10) calendar days after
completion of a merger, consolidation, sale or similar
transaction and the failure to deliver a copy of the
document effecting such assumption to the Executive upon
the Executive's written request; or
(vi) a material breach by the Company of any provision of
this Agreement.
(j) "Term of Employment" shall mean the period specified in Section 2
below, as such period may be extended.
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2. Term of Employment.
The Company hereby employs the Executive, and the Executive hereby
accepts such employment, for the period commencing on the Effective Date and
ending January 31, 2011, subject to earlier termination of the Term of
Employment in accordance with the terms of this Agreement (the "Initial Term").
This Agreement shall be automatically renewed for additional one (1) year
periods at the end of the Initial Term and on each anniversary thereafter,
unless either Party notifies the other Party in writing, in accordance with
Section 25, of his or its intention not to renew this Agreement not less than
sixty (60) calendar days prior to such expiration date or anniversary, as the
case may be. Executive shall be based in the Company's offices located in
Washington, D.C. with such travel within and outside of the United States as may
be reasonably required in the performance of Executive's duties.
3. Position, Duties and Responsibilities; Reporting.
As of the Effective Date and continuing for the remainder of the
Term of Employment, the Executive shall be employed as the Executive Vice
President and Chief Financial Officer. In this capacity, the Executive shall be
have the duties, responsibilities and authority commensurate with the position
and such other duties and responsibilities as are appropriate for a person
holding the offices set forth in this section and assigned by the Company's
Chief Executive Officer. Unless prevented by illness, injury or Disability, the
Executive shall devote substantially all of the Executive's time, attention and
efforts during normal working hours, and at such other times as the Executive's
duties may reasonably require, to the duties of the Executive's employment;
provided, however, that the Executive may (a) serve on civic or charitable
boards or committees; or (b) with the approval of the Company's Chief Executive
Officer, serve on other corporate boards or committees; provided, in each case
of (a) and (b) and in the aggregate, that such activities do not conflict or
interfere with the performance of the Executive's duties hereunder or conflict
with Section 13. The Executive shall report to the Company's Chief Executive
Officer in carrying out his duties under this Agreement. If requested, the
Executive shall also serve as an executive officer and/or member of the board of
directors of any of the Company's subsidiaries or affiliates without additional
compensation.
4. Base Salary.
As of the Effective Date and for the remainder of fiscal year
2009, the Executive shall be paid a Base Salary at the rate of not less than six
hundred and twenty-five thousand dollars ($625,000) per annum, payable in
accordance with the regular payroll practices of the Company. Thereafter, the
Base Salary shall be reviewed no less frequently than annually, including in
respect of fiscal year 2010, and the amount thereof may be increased in the
discretion of the Board or the Compensation Committee. After giving effect to
the preceding two sentences, the Base Salary may not be decreased unless the
Executive provides his prior written consent to such decrease or it is part of
an across-the-board reduction applicable to all senior executive officers of the
Company that results in a reduction to the Executive proportional to that of
other executives (subject to the exception set forth in Section 1(i)(i)).
5. Incentive Compensation Arrangements.
The Executive's maximum annual bonus opportunity for each fiscal
year shall be $1,025,000 (and shall be adjusted based on future increases in
Base Salary) and will be payable based upon the achievement of performance
criteria developed by the Company's Chief Executive Officer; provided, however,
that the Executive's bonus for fiscal year 2009 shall not be less than Two
Hundred and Seventh-Five Thousand Dollars ($275,000). For purposes of this
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Agreement, Executive's target bonus opportunity ("Target Bonus") shall be
$625,000 (subject to achievement of the requisite performance criteria). Any
bonuses shall be payable in the fiscal year following the applicable fiscal year
when bonuses are customarily payable under the Company's regular payroll
practices, but in no event later than 2 and 1/2 months following the end of the
applicable fiscal year. The bonus for fiscal year 2009 shall be based on the
full year and not prorated as a result of the Effective Date.
6. Long-Term Incentive Compensation Programs.
(a) The Compensation Committee and the Company's management will
recommend that the Board approve, at its first scheduled meeting after the date
hereof, a grant to the Executive of 210,000 deferred stock units representing
the right to receive, upon vesting, shares of Company common stock ("Common
Stock") in accordance with the terms and conditions of the Company's 2005 Stock
Incentive Compensation Plan. One-third (1/3) of the award would be scheduled to
vest, and shares of Common Stock in respect thereof delivered, on each of the
first, second and third anniversary of the Effective Date. Notwithstanding the
foregoing, the vesting and delivery of 70,000 of the deferred stock units will
be conditioned upon the achievement by the Company and Comverse, Inc. of a
specified performance criterion based on pro forma operating income for fiscal
year 2009, and such shares will be forfeited if such performance criterion is
not achieved. The deferred stock award would be documented using the form of the
Company's Deferred Stock Award Agreement.
(b) During the Term of Employment (including fiscal year 2009), the
Executive will be eligible to receive equity awards under the Company's stock
incentive plans based on the performance of the Company and the performance of
the Executive, as recommended by the Company's Chief Executive Officer and
determined in the good faith discretion of the Board and/or Compensation
Committee, as applicable, and consistent with the Executive's role and
responsibilities as Executive Vice President and Chief Financial Officer of the
Company, with such awards to be assessed on an annual basis.
7. Employee Benefit Programs.
During the Term of Employment, the Executive shall be entitled to
participate in all employee welfare and pension benefit plans, programs and/or
arrangements applicable to senior-level executives other than those relating to
cash bonuses or equity awards (as to which Sections 5 and 6 hereof shall
govern).
8. Reimbursement of Business Expenses.
During the Term of Employment, the Executive is authorized to incur
reasonable business expenses in carrying out his duties and responsibilities
under this Agreement, and the Company shall reimburse him for all such
reasonable business expenses, subject to documentation in accordance with the
Company's policies relating thereto. In addition, the Company shall pay for
reasonable legal fees and expenses up to an amount of $15,000 incurred by the
Executive in connection with the negotiation and drafting of this Agreement.
9. Perquisites.
During the Term of Employment, the Executive shall be entitled to
participate in the Company's executive fringe benefit programs applicable to the
Company's senior-level executives (if any) in accordance with the terms and
conditions of such programs as in effect from time to time. During the term of
employment, the Executive shall be entitled to an annual additional supplemental
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payment of $25,000 payable as additional salary during the course of the year in
accordance with the regular payroll practices of the Company.
10. Vacation.
The Executive be entitled to four (4) weeks paid vacation in each
calendar year and seven (7) personal days administered in accordance with the
Company's policies in place from time to time.
11. Relocation.
In the event that the Executive is required to relocate to New York,
New York, the Company will extend to the Executive relocation assistance on
terms consistent with that available to other senior level executives and to be
agreed upon at such time.
12. Termination of Employment.
(a) Termination of Employment Due to Death or Disability. In the event
of the Executive's death or Disability during the Term of Employment, the Term
of Employment shall end as of the date of the Executive's death or Disability
and he, his estate and/or beneficiaries, as the case may be, shall be entitled
to the following, subject to Section 27 below:
(i) Base Salary earned but not paid prior to the date of his
death or Disability, and any annual bonus earned
pursuant to Section 5, but unpaid, as of the date of
death or Disability for the immediately preceding fiscal
year, payable to Executive in a lump sum less applicable
tax withholdings when bonuses are paid by the Company to
its senior-level executives in respect of such fiscal
year after the end of the applicable fiscal year (but
not later than 2-1/2 months after the end of such fiscal
year);
(ii) a pro-rata share of the annual bonus the Executive would
have earned pursuant to Section 5 if he had remained
employed through the end of the fiscal year in which the
termination occurred based on the number of days the
Executive is employed during the year of termination and
based on the Company's actual performance against the
goals set by the Compensation Committee for such fiscal
year, payable when bonuses are paid by the Company to
its senior-level executives in respect of such fiscal
year after the end of the applicable fiscal year (but
not later than 2-1/2 months after the end of such fiscal
year);
(iii) any amounts earned, accrued or owing to the Executive
prior to the date of his death but not yet paid under
Sections 7, 8, 9, 10 or 11 above in accordance with the
terms thereof payable to Executive in a lump sum less
applicable tax withholdings; and
(iv) such other or additional benefits, if any, as may be
provided under applicable plans, programs and/or
arrangements of the Company.
In no event shall a termination of the Executive's employment for Disability
occur unless the Party terminating the Executive's employment provides written
notice within ten (10) business days to the other Party in accordance with
Section 25 below.
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(b) Termination of Employment by the Company for Cause. If the Company
terminates the Executive's employment for Cause during the Term of Employment,
the Term of Employment shall end as of the date of termination and the Executive
shall be entitled to the following:
(i) Base Salary earned but not paid prior to the date of
termination payable to Executive in a lump sum less
applicable tax withholdings;
(ii) any amounts earned, accrued or owing to the Executive
prior to the date of termination but not yet paid under
Sections 7, 8, 9, 10 or 11 above in accordance with the
terms thereof payable to Executive in a lump sum less
applicable tax withholdings; and
(iii) such other or additional benefits, if any, as may be
provided under applicable plans, programs and/or
arrangements of the Company.
(c) Termination of Employment by the Company without Cause or by the
Executive for Good Reason. If the Executive's employment is terminated by the
Company without Cause (other than due to death or Disability) or by the
Executive for Good Reason, the Term of Employment shall end as of the date of
termination and the Executive shall be entitled to the following, subject to
Section 27:
(i) Base Salary earned but not paid prior to the date of
termination payable to Executive in a lump sum less
applicable tax withholdings;
(ii) any annual bonus earned pursuant to Section 5, but
unpaid, as of the date of termination for the
immediately preceding fiscal year, payable to Executive
in a lump sum less applicable tax withholdings when
bonuses are paid by the Company to its senior-level
executives in respect of such fiscal year after the end
of the applicable fiscal year (but not later than 2-1/2
months after the end of such fiscal year);
(iii) a pro-rata share of the annual bonus the Executive would
have earned pursuant to Section 5 if he had remained
employed through the end of the fiscal year in which the
termination occurred based on the number of days the
Executive is employed during the year of termination and
based on the Company's actual performance against the
goals set by the Compensation Committee for such fiscal
year, payable when bonuses are paid by the Company to
its senior-level executives in respect of such fiscal
year after the end of the applicable fiscal year (but
not later than 2-1/2 months after the end of such fiscal
year);
(iv) one hundred percent (100%) of the greater of (A) the
Base Salary in effect on the date of termination or (B)
the Base Salary in effect immediately prior to any
reduction that would constitute Good Reason, payable to
Executive in a lump sum less applicable tax withholdings
within the later of (i) 30 calendar days after the date
of termination or (ii) the seventh day after the
expiration of the revocation period, if applicable,
under the release contemplated by Section 12(i) below,
in accordance with the Company's regular payroll
practice;
(v) one hundred percent (100%) of the Target Bonus
(regardless of any performance requirements), payable to
Executive in a lump sum less applicable withholdings
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within the later of (i) 30 calendar days after the date
of termination or (ii) the seventh day after the
expiration of the revocation period, if applicable,
under the release contemplated by Section 12(i) below;
(vi) to have the Company pay the full premiums (employer and
employee portions) for the Executive's and any covered
beneficiary's coverage under COBRA health continuation
benefits over the twelve (12) month period immediately
following the date of termination;
(vii) any amounts earned, accrued or owing to the Executive
prior to the date of termination but not yet paid under
Sections 7, 8, 9, 10 or 11 in accordance with the terms
thereof payable to Executive in a lump sum less
applicable tax withholdings; and
(viii) such other or additional benefits, if any, as may be
provided under applicable plans, programs and/or
arrangements of the Company.
In no event shall a termination of the Executive's employment without Cause
occur unless the Company gives written notice to the Executive in accordance
with Section 25 below.
(d) Termination of Employment Due to a Change in Control. If the
Executive's employment is terminated by the Company without Cause or by the
Executive for Good Reason in connection with or within one (1) year after a
Change in Control, the Executive shall be entitled to the following, subject to
Section 27:
(i) Base Salary earned but not paid prior to the date of
termination payable to Executive in a lump sum less
applicable tax withholdings;
(ii) any annual bonus earned pursuant to Section 5, but
unpaid, as of the date of termination for the
immediately preceding fiscal year, payable to Executive
in a lump sum less applicable tax withholdings when
bonuses are paid by the Company to its senior-level
executives in respect of such fiscal year after the end
of the applicable fiscal year (but not later than 2-1/2
months after the end of such fiscal year);
(iii) a pro-rata share of the annual bonus the Executive would
have earned pursuant to Section 5 if he had remained
employed through the end of the fiscal year in which the
termination occurred based on the number of days the
Executive is employed during the year of termination and
based on the Company's actual performance against the
goals set by the Compensation Committee for such fiscal
year, payable when bonuses are paid by the Company to
its senior-level executives in respect of such fiscal
year after the end of the applicable fiscal year (but
not later than 2-1/2 months after the end of such fiscal
year);
(iv) one hundred and fifty percent (150%) of the greater of
(A) the Base Salary in effect on the date of termination
or (B) the Base Salary in effect immediately prior to
any reduction that would constitute Good Reason, payable
to Executive in a lump sum less applicable tax
withholdings within the later of (i) 30 calendar days
after the date of termination or (ii) the seventh day
after the expiration of the revocation period, if
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applicable, under the release contemplated by Section
12(i) below, in accordance with the Company's regular
payroll practice;
(v) one hundred and fifty percent (150%) of the Target Bonus
(regardless of any performance requirements), payable to
Executive in a lump sum less applicable tax withholdings
within the later of (i) 30 calendar days after the date
of termination or (ii) the seventh day after the
expiration of the revocation period, if applicable,
under the release contemplated by Section 12(i) below;
(vi) to have the Company pay the full premiums (employer and
employee portions) for the Executive's and any covered
beneficiary's coverage under COBRA health continuation
benefits over the eighteen (18) month period immediately
following the date of termination;
(vii) any amounts earned, accrued or owing to the Executive
prior to the date of termination but not yet paid under
Sections 7, 8, 9, 10 or 11 in accordance with the terms
thereof payable to Executive in a lump sum less
applicable tax withholdings;
(viii) the immediate vesting of all stock options and deferred
stock awarded to the Executive, with any options granted
after the Effective Date having a minimum exercise
period of one (1) year from the date of termination or,
if less, the maximum exercise period permitted by
Section 409A, subject to any option plan provisions
relating to a change in control or similar event and to
the initial ten (10) year term of the options; provided,
however, that, if necessary, such exercise period shall
be extended if permitted by Section 409A until the
exercise of the options would cease to violate any
federal or state securities laws subject to the initial
ten (10) year term of the options; and
(ix) such other or additional benefits, if any, as may be
provided under applicable plans, programs and/or
arrangements of the Company.
(e) Termination of Employment by the Executive Without Good Reason. If
the Executive terminates his employment without Good Reason, other than a
termination of employment due to death or Disability, the Executive shall be
entitled to the same payments and benefits as provided in Section 12(b) above.
In no event shall a termination of the Executive's employment without Good
Reason occur unless the Executive gives at least thirty (30) calendar days
advance written notice to the Company in accordance with Section 25 below.
(f) Termination by Notice of Nonrenewal by the Company. If the Company
terminates the Executive's employment as a result of or following the Company
providing a notice of non-renewal of this Agreement in accordance with Section 2
above, the Executive shall be entitled to the same payments and benefits as
provided in Section 12(c) or 12(d), as applicable. If the Company provides such
nonrenewal notice, but does not terminate Executive's employment, then the
Executive shall have Good Reason under Section 1(i).
(g) No Mitigation; No Offset. In the event of a termination of the
Executive's employment for any reason under this Section 12, the Executive shall
be under no obligation to seek other employment and there shall be no offset
against amounts due to the Executive under this Agreement on account of any
compensation attributable to any subsequent compensation he may receive. The
Company's obligation to make the payments provided for in this Agreement and
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otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action which
the Company may have against the Executive or others; provided that the
foregoing shall in no way limit the Company's remedies upon a breach or
threatened breach of the restrictive covenants in Section 13.
(h) Additional Payments. If the Executive becomes subject to the excise
tax imposed by Code Section 4999 (the "Parachute Excise Tax") with respect to
any payment(s), benefit(s) or distribution(s) received by, or payable to or for
the benefit of, the Executive (or otherwise) in connection with, or by reason
of, any Change in Control or any change in ownership or effective control of the
Company (as determined under IRC Section 280G) that occurs prior to January 31,
2011, the Company and the Executive agree that the Company shall pay to the
Executive a tax gross-up payment so that after payment by the Executive of all
federal, state and local excise, income, employment, Medicare and any other
taxes (including any related penalties and interest) resulting from the payment
of the parachute payments and the tax gross-up payments to the Executive by the
Company, the Executive retains on an after-tax basis an amount equal to the
amount that the Executive would have retained if he had not been subject to the
Parachute Excise Tax.
(i) Waiver and Release. As a condition precedent to receiving the
compensation and benefits provided under Section 12(c) and 12(d) (but not any of
the amounts described in clauses (i), (vii) and (ix) of Sections 12(c) and 12(d)
above), the Executive shall execute a waiver and release substantially in the
form attached to this Agreement as Exhibit A.
13. Restrictive Covenants.
(a) Nondisclosure. During the Term of Employment and thereafter, the
Executive shall not disclose to anyone or make use of any trade secret or
proprietary or confidential information of the Company, including such trade
secret or proprietary or confidential information of any customer or other
entity to which the Company owes an obligation not to disclose such information,
which he acquires during the Term of Employment, including, without limitation,
records kept in the ordinary course of business, except (i) as such disclosure
or use may be required or appropriate in connection with his work as an employee
of the Company, (ii) when required to do so by a court of law, governmental
agency or administrative or legislative body (including a committee thereof)
with apparent jurisdiction to order him to divulge, disclose or make accessible
such information or (iii) as to such confidential information that becomes
generally known to the public or trade without his violation of this Section 13
(a). Nothing herein shall preclude Executive from discussing or disclosing the
Agreement and/or any plan or other agreement referred to herein and/or any
aspect of his compensation and/or benefits with his family and/or his advisors
or necessary to enforce this Agreement.
(b) Assignment of Rights. The Executive hereby sells, assigns and
transfers to the Company all of his right, title and interest in and to all
inventions, discoveries, improvements and copyrightable subject matter (the
"Rights") that, during the Term of Employment, are made or conceived by him,
alone or with others, and that relate to the Company's present business or arise
out of any work he performs or information he receives regarding the business of
the Company while employed by the Company. The Executive shall fully disclose to
the Company as promptly as possible all information known or possessed by him
concerning the Rights, and upon request by the Company and without any further
compensation in any form to him by the Company, but at the expense of the
Company, execute all applications for patents and copyright registrations,
assignments thereof and other applicable instruments and do all things that the
Company may reasonably deem necessary to vest and maintain in it the entire
right, title and interest in and to all such Rights.
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(c) Noncompetition. For and in consideration of the compensation to be
paid by the Company pursuant to the terms hereof, and in recognition of the fact
that the Executive will have access to confidential information and other
valuable rights of the Company, the Executive covenants and agrees that he will
not, at any time during his employment with the Company and for a period of
twelve (12) months thereafter, directly or indirectly, engage in Competitive
Business. "Competitive Business" shall mean any business or any activity related
to the development, sale, production, manufacturing, marketing or distribution
of products or services that are in competition with products or services that
the Company or any of its subsidiaries (other than Verint Systems Inc., Ulticom,
Inc., Starhome, B.V. and their subsidiaries) produces, sells, manufactures,
markets, distributes or has interest in, in any state or foreign country in
which the Company or any of its subsidiaries (other than Verint Systems Inc.,
Ulticom, Inc. and Starhome, B.V. and their subsidiaries) then conducts business
or reasonably has plans to conduct business, provided that after the end of the
Executive's employment Competitive Business shall exclude product lines or
services that account for less than 5% of the Company's aggregate revenue as
projected in the Company's then current business plan for the three-year period
following termination of employment. It is not the intent of this covenant to
bar the Executive from employment in any company whose general business is the
manufacture of communications equipment or delivery of communications services,
only to limit specific and direct competition with the Company as aforesaid. In
furtherance thereof, it is acknowledged that it shall not be a breach of this
Section 13(c) for the Executive to provide services to an entity or person that
is not itself a Competitive Business, but has a division, business unit or
segment that is a Competitive Business, so long as the Executive demonstrates to
the Company's reasonable satisfaction that the Executive does not and will not,
directly or indirectly, provide services or advice to such division, business
unit or segment that is the Competitive Business. Notwithstanding the foregoing,
nothing contained in this Agreement shall prevent the Executive from being an
investor in securities of a competitor listed on a national securities exchange
or actively traded over-the-counter so long as such investments are in amounts
not significant as compared to his total investments or to the aggregate of the
outstanding securities of the issuer of the same class or issue of the specific
securities involved are less than 2% of the respective company's outstanding
equity securities and the Executive is solely a passive investor (or option
holder) in each such company and if such company has a Competitive Business, the
Executive does not and will not, directly or indirectly, provide services or
advice to such company.
(d) Nonsolicitation. For and in consideration of the compensation to be
paid by the Company pursuant to the terms hereof, and in recognition of the fact
that the Executive will have access to confidential information and other
valuable rights of the Company, the Executive covenants and agrees that he will
not, at any time during his employment with the Company and for a period of
twelve (12) months thereafter, directly or indirectly, induce, attempt to
induce, or aid others in inducing, an employee of the Company to accept
employment or affiliation with another firm or corporation engaging in such
business or activity of which the Executive is an employee, owner, partner or
consultant. The Executive further agrees that he will not, whether on
Executive's own behalf or on behalf of any other individual, partnership, firm,
corporation or business organization, either directly or indirectly, solicit,
induce, persuade, or entice, or endeavor to solicit, induce, persuade, or
entice, any person who is then a customer, supplier, or vendor of the Company or
any of its affiliates to cease being a customer, supplier, or vendor of the
Company or any of its affiliates or to divert all or any part of such person's
or entity's business from the Company or any of its affiliates.
(e) Duration and Scope. The Company and the Executive agree that the
duration and geographic scope of the restrictive covenants set forth in this
Section 13 are reasonable. In the event that any court of competent jurisdiction
determines that the duration or the geographic scope, or both, are unreasonable
and that such provision is to that extent unenforceable, the Company and the
Executive hereto agree that the provision shall remain in full force and effect
for the greatest lesser time period and in the greatest lesser area that would
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not render it unenforceable. The Company and the Executive intend that this
provision shall be deemed to be a series of separate covenants, one for each and
every county of each and every state of the United States of America and each
and every political subdivision of each and every country outside the United
States of America where this provision is intended to be effective. The
Executive acknowledges and agrees that the Company would not have an adequate
remedy at law and would be irreparably harmed in the event that any of the
provisions of this Section 13 were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the Executive agrees
that the Company shall be entitled to seek equitable relief, including
preliminary and permanent injunctions and specific performance, in the event
Executive breaches or threatens to breach any of the provisions of such
Sections, without the necessity of posting any bond or proving special damages
or irreparable injury. Such remedies shall not be deemed to be the exclusive
remedies for a breach or threatened breach of the provisions of this Section 13
by Executive, but shall be in addition to all other remedies available to the
Company at law or equity. The Executive acknowledges and agrees that no breach
by the Company of this Agreement or failure to enforce or insist on its rights
under this Agreement shall constitute a waiver or abandonment of any such rights
or defense to enforcement of such rights. If the provisions of this Section 13
are ever deemed by a court to exceed the limitations permitted by applicable
law, the Executive and the Company agree that such provisions shall be, and are,
automatically reformed to the maximum lesser limitations permitted by such law.
14. Indemnification.
The Company confirms and acknowledges that the Company is
obligated to indemnify the Executive pursuant to the terms of the
Indemnification Agreement between the Company and the Executive dated as of the
date hereof (the "Indemnification Agreement") and the Company's By-laws (without
taking into account any amendment to the Company's By-laws adopted after the
Effective Date which reduces his rights to indemnification) and that the
Executive shall, in any event, be indemnified to the fullest extent permitted by
law. The Executive shall be entitled to the same Director and Officer Insurance
coverages as apply to other executive officers of the Company.
15. Assignability; Binding Nature.
This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors, agents, heirs (in the case of the
Executive) and assigns. No rights or obligations of the Company under this
Agreement may be assigned or transferred by the Company; provided, however, that
such rights or obligations may be assigned or transferred pursuant to a sale of
more than 50% of the outstanding equity securities of the Company, a merger or
consolidation in which the Company is not the continuing entity, or the sale or
liquidation of all or substantially all of the assets of the Company; provided
further, however, that the assignee or transferee is the successor to all or
substantially all of the assets of the Company and such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law.
16. Representation.
The Company represents and warrants that it is fully authorized
and empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization. The Executive represents and warrants
that no agreement exists between him and any other person, firm or organization
that would be violated by the performance of his obligations under this
Agreement.
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17. Entire Agreement.
This Agreement (including the attached Exhibit A and any plan,
other agreements or attachments referred to herein) and the Indemnification
Agreement contains the entire understanding and agreement between the Parties
concerning the subject matter hereof and supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or
oral, with respect thereto including, without limitation, any offer letters or
employment agreements and any nondisclosure, nonsolicitation, inventions and/or
noncompetition agreements between the Parties.
18. Amendment or Waiver.
No provision in this Agreement may be amended unless such
amendment is agreed to in writing and signed by the Executive and an authorized
officer of the Company. No waiver by either Party of any breach by the other
Party of any condition or provision contained in this Agreement to be performed
by such other Party shall be deemed a waiver of a similar or dissimilar
condition or provision at the same or any prior or subsequent time. Any waiver
must be in writing and signed by the Executive or an authorized officer of the
Company, as the case may be.
19. Withholding.
The Company may withhold from any amounts payable under this
Agreement such federal, state and local taxes as may be required to be withheld
pursuant to any applicable law or regulation.
20. Severability.
In the event that any provision of this Agreement shall be
determined by a court of competent jurisdiction to be invalid or unenforceable
for any reason, in whole or in part, the remaining parts, terms or provisions of
this Agreement shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law.
21. Survivorship.
The respective rights and obligations of the Parties hereunder
shall survive any termination of the Executive's employment to the extent
necessary to preserve such rights and obligations.
22. Controlling Document.
If any provision of any agreement, plan, program, policy,
arrangement or other written document between or relating to the Company and the
Executive conflicts with any provision of this Agreement, the provision of this
Agreement shall control and prevail.
23. Beneficiaries/References.
The Executive shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Executive's death by
giving the Company written notice thereof. In the event of the Executive's
death, reference in this Agreement to the Executive shall be deemed, where
appropriate, to refer to his beneficiary, estate or other legal representative.
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24. Governing Law/Jurisdiction.
This Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of New York without reference to
principles of conflicts of law unless superseded by federal law. The Parties
agree that any suit, action or other legal proceeding that is commenced to
resolve any matter arising under or relating to any provision of this Agreement
shall be commenced only in a court of the State of New York (or, if appropriate,
a federal court located within the State of New York), and the Parties consent
to the jurisdiction of such court. Each Party shall be responsible for paying
its own fees and expenses (including reasonable attorney fees) in connection
with any dispute under this Agreement except to the extent (if any) that
Executive's legal fees and expenses are required to be reimbursed pursuant to
the Indemnification Agreement and/or D&O insurance coverage referred to in
Section 14 and except to the extent that the Executive has a right to
reimbursement of legal fees and expenses under applicable law.
25. Notices.
All notices shall be in writing, shall be hand delivered or sent
to the following addresses listed below using a reputable overnight express
delivery service and shall be deemed to be received when hand delivered or one
(1) calendar day after depositing with such overnight service for next day
delivery.
If to the Company: Comverse Technology, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
If to the Executive: Xxxxxxx X. Xxxx
at the most recent address of Executive
set forth in the personnel records of
the Company
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
26. Headings.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
14
27. Cooperation.
The Executive agrees to cooperate with the Company in the
investigation, defense or prosecution of any claims or actions now in existence
or which may be brought in the future against or on behalf of the Company
related to events occurring during Executive's employment with the Company. Such
cooperation shall include meeting with representatives of the Company upon
reasonable notice at reasonable times and locations to prepare for discovery or
any mediation, arbitration, trial, administrative hearing or other proceeding or
to act as a witness. The Executive shall notify the Company if the Executive is
asked to assist, testify or provide information by or to any person, entity or
agency in any such proceeding or investigation. The Company shall reimburse the
Executive for expenses reasonably incurred in connection therewith (including
reasonable attorney fees if it is determined that utilization of Company counsel
would create a conflict). The Company shall also compensate Executive for his
time in connection with such cooperation if he is no longer employed by the
Company at a rate of $300 per hour. Any such cooperation occurring after the
termination of Executive's employment shall be subject to Executive's other
business and personal commitments, and shall be scheduled to the extent
reasonably practicable so as not to unreasonably interfere with Executive's
business or personal affairs. Notwithstanding the above, nothing herein shall
require Executive to waive any legal rights he has or may have at any time.
28. Compliance with Code Section 409A.
(a) Six Month Delay for Specified Employees. If any payment,
compensation or other benefit provided to the Executive in connection with his
employment termination is determined, in whole or in part, to constitute
"nonqualified deferred compensation" within the meaning of Section 409A and the
Executive is a specified employee as defined in Section 409A(2)(B)(i), no part
of such payments shall be paid before the day that is six (6) months plus one
(1) day after the date of termination or earlier death (the "New Payment Date").
The aggregate of any payments that otherwise would have been paid to the
Executive during the period between the date of termination and the New Payment
Date shall be paid to the Executive in a lump sum on such New Payment Date.
Thereafter, any payments that remain outstanding as of the day immediately
following the New Payment Date shall be paid without delay over the time period
originally scheduled, in accordance with the terms of this Agreement.
Notwithstanding the foregoing, to the extent that the foregoing applies to the
provision of any ongoing welfare benefits to the Executive that would not be
required to be delayed if the premiums therefor were paid by the Executive, the
Executive shall pay the full cost of premiums for such welfare benefits during
the six-month period and the Company shall pay the Executive an amount equal to
the amount of such premiums paid by the Executive during such six-month period
promptly after its conclusion.
(b) Compliance. The Parties acknowledge and agree that the
interpretation of Section 409A and its application to the terms of this
Agreement is uncertain and may be subject to change as additional guidance and
interpretations become available. Anything to the contrary herein
notwithstanding, all benefits or payments provided by the Company to the
Executive that would be deemed to constitute "nonqualified deferred
compensation" within the meaning of Section 409A are intended to comply with
Section 409A. If, however, any such benefit or payment is deemed to not comply
with Section 409A, the Company and the Executive agree to renegotiate in good
faith any such benefit or payment (including, without limitation, as to the
timing of any severance payments payable hereof) so that either (i) Section 409A
will not apply or (ii) compliance with Section 409A will be achieved; provided,
however, that any resulting renegotiated terms shall provide to the Executive
the after-tax economic equivalent of what otherwise has been provided to the
Executive pursuant to the terms of this Agreement, and provided further, that
15
any deferral of payments or other benefits shall be only for such time period as
may be required to comply with Section 409A.
(c) Termination as a Separation from Service. A termination of
employment shall not be deemed to have occurred for purposes of any provision of
this Agreement providing for the payment of any amounts or benefits subject to
Section 409A upon or following a termination of employment unless such
termination is also a "separation from service" within the meaning of Section
409A, and for purposes of any such provision of this Agreement, references to a
"resignation," "termination," "terminate," "termination of employment" or like
terms shall mean separation from service.
(d) Payments for Reimbursements, In-Kind Benefits and Tax Gross-Ups.
All reimbursements for costs and expenses under this Agreement shall be paid in
no event later than the end of the calendar year following the calendar year in
which the Executive incurs such expense. With regard to any provision herein
that provides for reimbursement of costs and expenses or in-kind benefits,
except as permitted by Section 409A, (i) the right to reimbursement or in-kind
benefits shall not be subject to liquidation or exchange for another benefit,
and (ii) the amount of expenses eligible for reimbursements or in-kind benefits
provided during any taxable year shall not affect the expenses eligible for
reimbursement or in-kind benefits to be provided in any other taxable year,
provided, however, that the foregoing clause (ii) shall not be violated with
regard to expenses reimbursed under any arrangement covered by Section 105(b) of
the Code solely because such expenses are subject to a limit related to the
period the arrangement is in effect. Any tax gross-up payments under this
Agreement shall be paid in no event later than the end of the calendar year
following the year in which any excise tax, income tax or other amount
comprising a gross-up payment was remitted to the relevant taxing authority.
(e) Payments within Specified Number of Days. Whenever a payment under
this Agreement specifies a payment period with reference to a number of days
(e.g., "payment shall be made within thirty (30) days following the date of
termination"), the actual date of payment within the specified period shall be
within the sole discretion of the Company.
(f) Installments as Separate Payment. If under this Agreement, an
amount is paid in two or more installments, for purposes of Section 409A, each
installment shall be treated as a separate payment.
29. Counterparts.
This Agreement may be executed in two or more counterparts, and
such counterparts shall constitute one and the same instrument. Signatures
delivered by facsimile shall be deemed effective for all purposes to the extent
permitted under applicable law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
COMVERSE TECHNOLOGY, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer and President
16
THE EXECUTIVE
/s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
17
EXHIBIT A
This RELEASE ("Release") dated as of ____________________ between
Comverse Technology, Inc., a New York corporation (the "Company"), and Xxxxx X.
Xxxx (the "Executive").
WHEREAS, the Company and the Executive previously entered into an
employment agreement dated May __, 2009 under which the Executive was employed
to serve as the Company's Executive Vice President and Chief Financial Officer
(the "Employment Agreement"); and
WHEREAS, the Executive's employment with the Company (has been) (will
be) terminated effective __________________; and
WHEREAS, pursuant to Section 12 of the Employment Agreement, the
Executive is entitled to certain compensation and benefits upon such
termination, contingent upon the execution of this Release;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein and in the Employment Agreement, the Company and the Executive
agree as follows:
1. The Executive, on his own behalf and on behalf of his heirs, estate
and beneficiaries, does hereby release the Company, and in such capacities, any
of its subsidiaries or affiliates, and each of their respective past, present
and future officers, directors, agents, employees, shareholders, employee
benefit plans and their administrators or fiduciaries, insurer of any such
entities, and its and their successors and assigns and others related to such
entities, in each case, only in such person's capacity as such, from any and all
claims made, to be made, or which might have been made of whatever nature,
whether known or unknown, from the beginning of time, including those that arose
as a consequence of his employment with the Company, or arising out of the
separation from the Company, the severance of such employment relationship, or
arising out of any act committed or omitted during or after the existence of
such employment relationship, all up through and including the date on which
this Release is executed, including, but not limited to, those which were, could
have been or could be the subject of an administrative or judicial proceeding
filed by the Executive or on his behalf under federal, state or local law,
whether by statute, regulation, in contract or tort, and including, but not
limited to, every claim for front pay, back pay, wages, bonus, fringe benefits,
any form of discrimination (including but not limited to, every claim of race,
color, sex, religion, national origin, disability or age discrimination),
wrongful termination, tort, emotional distress, pain and suffering, breach of
contract, fraud, defamation, compensatory or punitive damages, interest,
attorney's fees, reinstatement or reemployment, and any rights or claims under
the Civil Rights Act of 1866; the Age Discrimination in Employment Act; the
Americans with Disabilities Act; the Family and Medical Leave Act, the Civil
Rights Act of 1964, Title VII, as amended; the Civil Rights Act of 1991; the
Employee Retirement Income Security Act of 1974, as amended; the Equal Pay Act;
the Worker Adjustment and Retraining Notification Act; or any other federal,
state or local law relating to employment, discrimination in employment,
termination of employment, wages, benefits or otherwise. If any arbitrator or
court rules that such waiver of rights to file, or have filed on his behalf, any
administrative or judicial charges or complaints is ineffective, the Executive
agrees not to seek or accept any money damages or any other relief upon the
filing of any such administrative or judicial charges or complaints. The
Executive relinquishes any right to future employment with the Company and the
Company shall have the right to refuse to re-employ the Executive, in each case
without liability of the Executive or the Company. The Executive acknowledges
and agrees that even though claims and facts in addition to those now known or
believed by him to exist may subsequently be discovered, it is his intention to
fully settle and release all claims he may have against the Company and the
persons and entities described above, whether known, unknown or suspected.
2. The Company and the Executive acknowledge and agree that the release
contained in Paragraph 1 does not, and shall not be construed to, release or
limit the scope of, or preclude the Executive from asserting his rights to
enforce any existing obligation of the Company (i) to indemnify the Executive
for his acts as an officer or director of Company in accordance with the
Company's By-laws, the Indemnification Agreement (as defined in Section 14 of
the Employment Agreement), and other agreements or the law, as to continued
coverage and rights under director and officer liability insurance policies,
(ii) to the Executive and his eligible, participating dependents or
beneficiaries under any existing group welfare, equity, or retirement plan of
the Company in which the Executive and/or such dependents are participants or
any existing rights relating to outstanding incentive equity held by the
Executive under written agreements relating to the same, or (iii) to pay any
amounts payable under the terms of the Employment Agreement (including, without
limitation, any severance or other items payable following termination of
Executive's employment). In addition, Executive does not waive his right to file
a charge with the Equal Employment Opportunity Commission ("EEOC") or
participate in an investigation conducted by the EEOC; however, Executive
expressly waives his right to monetary or other relief should any administrative
agency, including but not limited to the EEOC, pursue any claim on Employee's
behalf.
3. The Executive acknowledges that before entering into this Release,
he has had the opportunity to consult with any attorney or other advisor of the
Executive's choice, and the Executive is hereby advised to do so if he chooses.
The Executive further acknowledges that by signing this Release, he does so of
his own free will and act, that it is his intention to be legally bound by its
terms, and that no promises or representations have been made to the Executive
by any person to induce the Executive to enter into this Release other than the
express terms set forth herein. The Executive further acknowledges that he has
carefully read this Release, knows and understands its contents and its binding
legal effect, including the waiver and release of claims set forth in Paragraph
1 above.
4. The Executive acknowledges that he has been provided at least 21
days to review the Release. In the event the Executive elects to sign this
Release prior to this 21 day period, he agrees that it is a knowing and
voluntary waiver of his right to wait the full 21 days. The Executive further
understand that he has 7 days after the signing hereof to revoke this Release by
so notifying the Company ([ADDRESS], [Attention:]) in writing, such notice to be
received by the Company within the 7 day period. This Release shall not become
effective or enforceable, and no payments under the Release shall be made, until
this seven (7) day revocation period expires without the Executive having
revoked this Release.
IN WITNESS WHEREOF, the parties have executed this Release on the date
first above written.
COMVERSE TECHNOLOGY, INC.
By:
----------------------------------
Name:
Title:
THE EXECUTIVE
---------------------------------
Xxxxxxx X. Xxxx
2
