EXHIBIT 10.12
EMPLOYMENT AGREEMENT
(XXXXXXX X. XXXXXXXX)
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of July 1, 1997
(the "Effective Date"), by and among APPLIED VOICE RECOGNITION, INC., a Utah
corporation ("Employer"), and XXXXXXX X. XXXXXXXX, an individual residing in
Xxxxxx County, Texas ("Employee").
W I T N E S S E T H:
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WHEREAS, Employer and Employee desire to enter into an agreement
regarding Employee's employment with Employer pursuant to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties covenant and agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee and Employee hereby
accepts employment with Employer on the terms and conditions set forth in this
Agreement.
2. TERM OF EMPLOYMENT. The term of Employee's employment hereunder
(the "Term") shall commence as of July 1, 1997 (the "Commencement Date") and
shall continue (subject to termination by either Employer or Employee as
hereinafter provided) for an initial term (the "Initial Term") expiring on
December 31, 2000 (the "Expiration Date"). The Expiration Date shall be
automatically extended unless terminated by Employer or Employee for successive
one year periods following the expiration of the Initial Term. If Employer
desires to terminate Employee's employment under this Agreement at the end of
the Initial Term or at the end of any succeeding one year term, Employer shall
give written notice of such desire to Employee at least one month prior to the
expiration of the Initial Term or any succeeding one year term. If Employee
desires to terminate Employee's employment under this Agreement at the end of
the Initial Term or at the end of any succeeding one year term, Employee shall
give written notice of such desire to Employer at least one month prior to the
expiration of the Initial Term or any succeeding one year term. At the
expiration of the then existing term, Employer shall have no further obligation
to Employee other than payment of earned and unpaid Commissions (as hereafter
defined) under Section 3(b), and Employee shall have no further obligation to
Employer except as set forth in Sections 7, 8, 9 and 10.
3. COMPENSATION AND OTHER BENEFITS.
a. As compensation for all services rendered by Employee in
performance of Employee's duties or obligations under this Agreement, Employer
shall pay Employee the following base salary (the "Base Salary"):
(1) from July 1, 1997 until December 31, 1997, a monthly
base salary of SIXTEEN THOUSAND SIX HUNDRED SIXTY-SIX AND 66/100
DOLLARS ($16,666.66);
(2) from January 1, 1998 until December 31, 1998, a monthly
base salary of EIGHTEEN THOUSAND SEVEN HUNDRED FIFTY AND 00/100
DOLLARS ($18,750.00); and
(3) from January 1, 1999 until the Expiration Date, a
monthly base salary of TWENTY THOUSAND EIGHT HUNDRED XXXXXX-THREE AND
33/100 DOLLARS ($20,833.33).
Employee's Base Salary shall be payable in equal semi-monthly installments or in
the manner and on the timetable which Employer's payroll is customarily handled
or at such intervals as Employer and Employee may hereafter agree to from time
to time.
b. In addition to receiving the Base Salary provided for in Section
3(a), beginning July 1, 1997 and through December 31, 1997, Employee shall be
entitled to receive a monthly commission (the "Commission") as follows:
(1) For each month of the period from July 1, 1997 through
December 31, 1997, the Commission will be calculated by multiplying (i) the
total amount of revenues actually received by Employer during a particular
month, by (ii) one and one half percent (1-1/2%).
(2) The Commission shall be paid by Employer to Employee along
with Employee's semi-monthly installment of Base Salary, but in any event
within forty-five (45) days after the last day of the month during which
such Commission was earned.
c. In addition to receiving the Base Salary provided for in Section
3(a), for the year beginning January 1, 1998 and thereafter during the Term
hereof, Employee shall be entitled to a bonus if, and only if, Employee has met
the performance criteria set by Employer for the applicable year. In connection
therewith, Employer agrees that by January 31 of each year, it shall set the
performance criteria for Employee's bonus to be earned during the applicable
year and shall communicate such criteria to Employee in writing. If Employee
successfully meets the performance criteria established by Employer (in the
discretion of Employer), Employer shall pay to Employee the bonus within thirty
(30) days of the end of the applicable year.
d. Employee shall be entitled to be reimbursed by Employer for all
reasonable and necessary expenses incurred by Employee in carrying out
Employee's duties under this Agreement in accordance with Employer's standard
policies regarding such reimbursements.
e. Employee shall be entitled during the Term, upon satisfaction of
all eligibility requirements, if any, to participate in all health, dental,
disability, life insurance and other benefit programs now or hereafter
established by Employer which cover substantially all other of Employer's
employees and shall receive such other benefits as may be approved from time to
time by Employer.
f. Employee shall be entitled to receive two weeks of paid vacation
for each year during the Term following the first anniversary of the
Commencement Date and shall be entitled to receive paid holidays as enjoyed by
all other employees of Employer.
g. Effective as of September 1, 1997, Employee shall be entitled to
receive an automobile allowance of $750 per month, payable on the first day of
each month during the remainder of the Term. Employee shall be responsible for
paying all costs related to ownership of Employee's vehicle, including
maintenance and repairs, insurance and fuel.
4. DUTIES.
a. Employee is employed to act as Chairman and Chief Executive Officer
of the Employer and in such other office or position as shall be assigned to
Employee from time to time by Employer, and to perform such duties as are
commensurate with Employee's position with Employer.
b. Employee agrees that during the period of employment, Employee
shall devote full-time efforts to Employee's duties as an employee of Employer
and Employee shall use Employee's best efforts to perform the duties of
Employee's position in an efficient and competent manner and shall use
Employee's best efforts to promote the interests of Employer and any affiliated
companies.
c. During the period of employment, Employee agrees not to (i) solely
or jointly with others undertake or join any planning for or organization of any
business activity competitive with the business activities of Employer, and (ii)
directly or indirectly, engage or participate in any other activities in
conflict with the best interests of Employer.
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d. Employee agrees that during the period of employment Employee shall
refer to Employer all opportunities in the computer industry related to voice
recognition software designs and applications to which Employee might become
exposed in carrying out Employee's duties and responsibilities hereunder.
5. TERMINATION OF EMPLOYMENT. Employee's employment and this
Agreement shall terminate upon the earliest to occur of any of the following
events (the actual date of such termination being referred to herein as the
"Termination Date"):
a. The termination of the Agreement pursuant to Section 2.
b. Employee's employment pursuant hereto shall terminate in the event
of the death of Employee.
c. Employer may terminate Employee's employment under this Agreement
for cause without any prior notice, upon the occurrence of any of the following
events:
(1) any embezzlement or wrongful diversion of funds of
Employer or any affiliate of Employer by Employee;
(2) gross malfeasance by Employee in the conduct of
Employee's duties;
(3) material breach of this Agreement;
(4) gross neglect by Employee in carrying out Employee's
duties; or
(5) the failure of Employee to be able to perform
Employee's duties hereunder for a period of not less than thirty days
by reason of disability. For purposes of this Agreement, Employee
shall be deemed to have become disabled when the Board of Directors of
Employer, upon the advice of a qualified physician, shall have
determined that Employee has become physically or mentally incapable
(excluding infrequent and temporary absences due to ordinary illness)
of performing Employee's duties under this Agreement. Before making
any termination decision pursuant to this Section 5 (c)(5), the Board
of Directors of Employer shall determine whether there is any
reasonable accommodation (within the meaning of the Americans with
Disabilities Act) which would enable Employee to perform the essential
functions of Employee's position under this Agreement despite the
existence of any such disability. If such a reasonable accommodation
is possible, Employer shall make that accommodation and shall not
terminate Employee's employment hereunder based on such disability.
d. If Employee's employment is terminated for any of the reasons
specified in Section 5(b), (c) or (f), Employer shall no longer be obligated to
make the payments specified under Section 3 or to pay to Employee any other
compensation or benefits whatsoever, except as may otherwise be provided in
Section 5(e) or (f). Notwithstanding the foregoing, if for any reason Employee's
employment is terminated hereunder, any salary payable under Sections 3(a) or
3(b) which shall have been earned but not yet paid shall be paid by Employer to
Employee or Employee's estate, as the case may be.
e. Employee shall have the right to terminate Employee's employment
hereunder upon ninety days' notice to Employer after the occurrence of any of
the following events:
(1) a sale of all or substantially all of the assets of
Employer to a third party for which Employee does not continue in
employment; or
(2) a merger or consolidation of Employer with an entity for
which Employee does not continue in employment.
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If this Agreement is terminated by Employee under this Section 5(e), any
then unvested Initial Options shall automatically become fully vested
immediately upon termination. The foregoing provisions of this Section 5(e)
shall not apply if the change of ownership that would otherwise trigger
Employee's termination right is caused by the registration by Employer or its
successors, of any class of equity securities pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended.
6. INVENTIONS AND CREATIONS BELONG TO EMPLOYER.
a. Any and all inventions, discoveries, improvements or creations
(collectively, "Creations") which Employee has conceived or made or may conceive
or make during the period of employment in any way, directly or indirectly,
connected with Employer's business shall be the sole and exclusive property of
Employer. Employee agrees that all copyrightable works created by Employee or
under Employer's direction in connection with Employer's business are "works
made for hire" and shall be the sole and complete property of Employer and that
any and all copyrights to such works shall belong to Employer. To the extent any
of the works described in the preceding sentence are not deemed to be "works
made for hire," Employee hereby assigns all proprietary rights, including
copyright, in these works to Employer without further compensation.
b. Employee further agrees to (i) disclose promptly to Employer all
such Creations which Employee has made or may make solely, jointly or commonly
with others during the period of employment to the extent connected with
Employer's business, (ii) assign all such Creations to Employer, and (iii)
execute and sign any and all applications, assignments or other instruments
which Employer may deem necessary in order to enable Employer, at Employer's
expense, to apply for, prosecute and obtain copyrights, patents or other
proprietary rights in the United States and foreign countries or in order to
transfer to Employer all right, title and interest in said Creations.
7. CONFIDENTIALITY; OWNERSHIP OF INFORMATION. Employer promises
that Employer will, during the Term, provide Employee with access to such
Confidential Information (as defined in Section 7(a)) owned by Employer and that
is used in the operation of Employer's business as reasonably necessary to allow
Employee to perform Employee's obligations hereunder. Employee acknowledges
that Employer has agreed to provide Employee with a definite term of employment
and with access to such Confidential Information of Employer during that term of
employment.
a. DEFINITION. For purposes of this Agreement, "Confidential
Information" means any and all information relating directly or indirectly to
Employer that is not generally ascertainable from public or published
information or trade sources and that represents proprietary information to
Employer, excluding, however, (i) Employees' business contacts, (ii) information
already known to Employee prior to Employee's employment with Employer, and
(iii) information required to be divulged in any legal or administrative
proceeding in which Employee is involved. Confidential Information shall consist
of, for example, and not intending to be inclusive, (A) software (source and
object codes), algorithms, computer processing systems, techniques,
methodologies, formulae, processes, compilations of information, drawings,
proposals, job notes, reports, records and specifications, and (B) information
concerning any matters relating to the business of Employer, any of its
customers, prospective customers, customer contacts, licenses, the prices it
obtains or has obtained for the licensing of its software products and services,
or any other information concerning the business of Employer and Employer's good
will.
b. NO DISCLOSURE. During the Term and at all times thereafter,
Employee shall not disclose or use in any manner, directly or indirectly, and
shall use Employee's best efforts and shall take all reasonable precautions to
prevent the disclosure of, any such trade secrets or other Confidential
Information, except to the extent required in the performance of Employee's
duties or obligations to Employer hereunder or by express prior written consent
of a duly authorized officer or director of Employer (other than Employee).
c. OWNERSHIP OF INFORMATION. Such Confidential Information is and
shall remain the sole and exclusive property and proprietary information of
Employer or Employer's customers, as the case may be, and is disclosed in
confidence by Employer or permitted to be acquired from such customers in
reliance on Employee's agreement
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to maintain such Confidential Information in confidence and not to use or
disclose such Confidential Information to any other person except in furtherance
of Employer's business.
d. RETURN OF MATERIAL. Upon the expiration or earlier termination of
this Agreement for any reason, Employee shall immediately turn over to Employer
all documents, disks or other magnetic media, or other material in Employee's
possession or under Employee's control that (i) may contain or be derived from
Creations or Confidential Information, or (ii) are connected with or derived
from Employee's services to Employer. Employee shall not retain any Confidential
Information in any form (e.g., computer hard drive, microfilm, etc.) upon the
expiration or earlier termination of this Agreement.
8. NONCOMPETE; WORKING FOR COMPETITOR. In consideration of
Employee's employment by Employer, Employee will not, at any time during the
Term or at any time for twenty-four (24) months subsequent to any termination of
Employee's employment pursuant to the provisions of Section 5(c) or the
voluntary termination of employment by Employee pursuant to Section 2, directly
or indirectly, within the United States, Canada, Mexico, South America or
Europe, for Employee's own account or on behalf of any direct competitors of
Employer, engage in any business or transaction involving the design,
installation, integration, service or consulting with respect to voice
recognition software designs and applications (whether as an employee, employer,
independent contractor, consultant, agent, principal, partner, stockholder,
corporate officer, director or in any other individual or representative
capacity), without the prior written consent of Employer, which consent may be
withheld by Employer in Employer's sole and absolute discretion.
9. NON-SOLICITATION OF EMPLOYEES. During the Term and for a period
of twenty-four (24) months after the date of termination of employment, Employee
will not in any way, directly or indirectly (i) induce or attempt to induce any
employee of Employer to quit employment with Employer; (ii) otherwise interfere
with or disrupt Employer's relationship with its employees; (iii) solicit,
entice or hire away any employee of Employer; or (iv) hire or engage any
employee of Employer or any former employee of Employer whose employment with
Employer ceased less than one year before the date of such hiring or engagement.
Employee acknowledges that any attempt on the part of Employee to induce others
to leave Employer's employ, or any effort by Employee to interfere with
Employer's relationship with its other employees would be harmful and damaging
to Employer.
10. EMPLOYEE'S ACKNOWLEDGEMENT. It is the express intention of
Employee and Employer to comply with sections 15.50 et seq. of the Texas
Business and Commerce Code in effect as of the date of execution hereof.
Employee stipulates that the provisions of this Agreement are not oppressive or
overly burdensome to Employee and will not prevent Employee from earning an
income following termination of this Agreement. Employee warrants and
represents that:
a. Employee is familiar with non-compete and non-solicitation
covenants;
b. Employee has discussed or acknowledges the opportunity to discuss
the provisions of the non-compete and non-solicitation covenants contained
herein with Employee's attorney and has concluded that such provisions
(including, without limitation, the right to equitable relief and the length of
time provided for herein) are fair, reasonable and just under the circumstances;
c. Employee is fully aware of the obligations, limitations and
liabilities included in the non-compete and non-solicitation covenants contained
in this Agreement;
d. The scope of activities covered hereby are substantially similar to
those activities to be performed by Employee under this Agreement;
e. The twenty-four (24) month non-compete and non-solicitation period
is a reasonable restriction, giving consideration to the following factors: (1)
Employee and Employer reasonably anticipate that this Agreement, although
terminable under certain provisions, will continue in effect for sufficient
duration to allow Employee to attain superior bargaining strength and an ability
for unfair competition with respect to the customers covered hereby; (2) the
duration of the twenty-four (24) month non-compete and non-solicitation period
is a reasonably necessary period to allow
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Employer to restore its position of equivalent bargaining strength and fair
competition with respect to those customers covered hereby; and (3)
historically, employees of all types have remained with Employee for a duration
of longer than the duration of the twenty-four (24) month non-compete and non-
solicitation period; and
f. The limitations contained in this Agreement with respect to
geographic area, duration and scope of activity are reasonable; however, if any
court shall determine that the geographic area, duration or scope of activity of
any restriction contained in this Agreement is unenforceable, it is the
intention of the parties that such restrictive covenants set forth herein shall
not thereby be terminated, but shall be deemed amended to the extent required to
render such covenants valid and enforceable.
11. REMEDIES; INJUNCTION. In the event of a breach or threatened
breach by Employee of any of the provisions of this Agreement, Employee agrees
that Employer, in addition to and not in limitation of any other rights,
remedies or damages available to Employer at law or in equity, shall be entitled
to a permanent injunction without the necessity of proving actual monetary loss
in order to prevent or restrain any such breach by Employee or by Employee's
partners, agents, representatives, servants, employees and/or any and all
persons directly or indirectly acting for or with Employee. It is expressly
understood between the parties that this injunctive or other equitable relief
shall not be Employer's exclusive remedy for any breach of this Agreement, and
Employer shall be entitled to seek any other relief or remedy which it may have
by contract, statute, law or otherwise for any breach hereof.
12. ARBITRATION. The parties agree that all disputes or questions
arising in connection with this Agreement and/or the termination of Employee's
employment hereunder shall be settled by a single arbitrator pursuant to the
rules of the American Arbitration Association in the City of Houston, Texas, and
the award of the arbitrators shall be final, non-appealable, conclusive and
enforceable in a court of competent jurisdiction; provided, however,
notwithstanding the foregoing, in no event shall any dispute, claim or
disagreement arising under Sections 6, 7, 8, and 9 of this Agreement that
requires injunctive or other equitable relief be required to be submitted to
arbitration pursuant to this provision or otherwise.
13. NOTICES. Any notice, demand or request which may be permitted,
required or desired to be given in connection therewith shall be given in
writing and directed to Employer and Employee as follows:
If to Employer, at: Applied Voice Recognition, Inc.
0000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
with a copy to: Xxxxx, Xxxxx & Xxxxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: J. Xxxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
or, if to Employee, at: Xx. Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxx 00000
Notices shall be deemed properly delivered and received when and if either: (i)
personally delivered; (ii) delivered by nationally-recognized overnight courier;
(iii) when deposited in the U.S. Mail, by registered or certified mail, return
receipt requested, postage prepaid; or (iv) sent via facsimile transmission with
confirmation mailed by regular U.S. mail. Any party may change its notice
address for purposes hereof to any address within the continental United States
by giving written notice of such change to the other parties hereto at least
fifteen days prior to the intended effective date of such change.
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14. SEVERABILITY. If any provision of this Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by decree of a court of last resort, Employer and
Employee shall promptly meet and negotiate substitute provisions for those
rendered or declared illegal or unenforceable, but all the remaining provisions
of this Agreement shall remain in full force and effect.
15. ASSIGNMENT. This Agreement may not be assigned by any party
without the prior written consent of the other parties.
16. BINDING AGREEMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and their respective legal
representatives, heirs, successors and permitted assigns.
17. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas.
18. ATTORNEYS FEES. In the event of any dispute between the parties
regarding this Agreement, the prevailing party shall be entitled to be
reimbursed for such prevailing party's attorneys fees and costs of court by the
non-prevailing party.
19. AGREEMENT READ, UNDERSTOOD AND FAIR. Employee has carefully read
and considered all provisions of this Agreement and agrees that all of the
restrictions set forth are fair and reasonable and are reasonably required for
the protection of the interests of Employer.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties have executed this Agreement on this
1st day of September, 1997, effective as of the Effective Date.
EMPLOYER:
APPLIED VOICE RECOGNITION, INC., a Utah
corporation
By: /S/ XXXXXXX X. XXXXXXX
---------------------------------
Xxxxxxx X. Xxxxxxx, President
EMPLOYEE:
/S/ XXXXXXX X. XXXXXXXX
---------------------------------
XXXXXXX X. XXXXXXXX
Signature Page to
Employment Agreement
(Xxxxxxx X. Xxxxxxxx)
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