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EXHIBIT 10.11
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT, dated and entered into as of the 13th day of January,
1997, by and between Voicetek Corporation , a Massachusetts corporation (the
"Company"), and Sheldon Dinkes, an individual residing at 85 East India Row,
Apt. 21F, Boston, MA 02110 (the "Executive").
WHEREAS, the Company desires to engage the full-time services of the
Executive;
WHEREAS, the Executive desires to be so employed by the Company; and
WHEREAS, the Company desires to be assured that the unique and expert
services of the Executive will be available solely to the Company on such
full-time basis, and that the Executive is willing and able to render such
services on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of such employment and the mutual
covenants and promises herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive agree as follows:
Section 1. Employment. The Company hereby employs the Executive as
its President and Chief Executive Officer, and the Executive hereby accepts such
employment under and subject to the terms and conditions hereinafter set forth.
The Executive further agrees to serve as a member of the Board of Directors (the
"Board") of the Company if elected or appointed to such office in accordance
with the Company's By-Laws.
Section 2. Term. Unless sooner terminated as provided in Section 7,
the term of employment under this Agreement shall begin on the date hereof and
shall conclude on
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January 12, 2000 (the "Term").
Section 3. Duties. The Executive shall serve as President and Chief
Executive Officer, and he shall perform additional duties as the Board of
Directors of the Corporation may assign to him from time to time. The Executive
hereby agrees to devote his full business time and best efforts to the faithful
performance of such duties and to the promotion and forwarding of the business
and affairs of the Company for the Term.
Section 4. Salary Compensation. In consideration of the services
rendered by the Executive under this Agreement, the Company shall pay the
Executive a base salary (the "Base Salary") at the rate of Two Hundred Thousand
Dollars ($200,000) per calendar year. The Base Salary shall be paid in such
installments and at such times as the Company pays its regularly salaried key
executive employees, and the Board may change the Base Salary from time to time
in its sole discretion; provided, however, that in no event shall the Base
Salary for any calendar year be less than the Base Salary in effect for the
immediately prior calendar year.
Section 5. Bonus Compensation. The Executive shall be entitled to
receive such incentive or performance bonuses as the Board may determine from
time to time.
Section 6. Fringe Benefits. As a key executive employee of the
Company, the Executive shall be eligible to participate in all employee fringe
benefit programs as are made available from time to time to the Company's key
executive employees.
Section 6. Benefits. In addition to the compensation detailed in
Section 4 and 5 of this Agreement, the Executive shall be entitled to the
following additional benefits:
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Section 6.01. Paid Vacation. The Executive shall be entitled to four
(4) weeks paid vacation per calendar year, such vacation to extend for such
periods and shall be taken at such intervals as shall be appropriate and
consistent with the proper performance of the Executive's duties hereunder and
consistent with the Company's vacation policy.
Section 6.02. Insurance Coverage. During the Term, the Company shall
provide the Executive with group health, dental and life insurance protection to
the same extent that it makes such protection available to its other key
executive employees.
Section 6.03. Reimbursement of Expenses. The Company shall reimburse
the Executive for all reasonable expenses actually incurred by the Executive in
connection with the business affairs of the Company and the performance of his
duties hereunder. The Executive shall comply with such reasonable limitations
and reporting requirements with respect to such expenses as the Board may
establish from time to time.
Section 6.04. Disability and Other Benefits. If the Executive suffers
any illness, disability or incapacity which prevents the Executive from
performing the Executive's duties hereunder, and such illness, disability or
incapacity shall be deemed by a duly licensed physician (who may be the
Executive's personal physician) to be permanent; or, if the Executive is unable
to render full-time services to the Company of the character required hereunder
for a period of six (6) consecutive months by reason of illness, disability or
incapacity, and the Board has determined that the Executive has been permanently
disabled; then, and in either of such events, the Executive shall render such
advisory and consulting services to the Company as may be reasonably requested
of the Executive by the Board and officers of the Company but only to the
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extent that the Executive is able to perform such services. In such event, the
Executive shall be paid the amount of Two Hundred Thousand Dollars ($200,000)
annually, payable in equal installments in conformity with the Company's normal
payroll period. Such disability compensation shall commence upon the first day
of the first month following the determination that the Executive's illness,
disability or incapacity is permanent, and shall be paid for the balance of the
Term even if the Executive's Employee's illness, disability or incapacity
prevents the rendering by the Executive of any services to the Company and
continues for the entire remaining Term. During such periods of disability, the
Company reserves the right to, at its own expense, have a licensed physician
examine the person of the Executive when and as often as it may reasonably
require to determine if the Executive is permanently disabled. The Executive's
disability compensation hereunder shall be reduced by the amount of any
disability insurance proceeds paid to or for the benefit of the Executive under
any policy, the premiums for which have been paid by the Company. The Executive
will also be provided with those other benefits generally equivalent to those
made available to key executive employees performing similar functions for
similarly situated companies.
Section 7. Termination. This Agreement shall be terminated at the end
of the Term, or earlier as follows:
Section 7.01. Death. This Agreement shall terminate upon the death of
the Executive, except that the compensation provided in Section 4 shall continue
through the end of the month in which the Executive's death occurs.
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Section 7.02. Permanent Disability. In the event of any physical or
mental disability of the Executive rendering the Executive unable to perform his
or her duties hereunder for a period of at least one hundred twenty (120)
consecutive days and the further determination that the disability is permanent
with regard to the Executive's ability to return to work in his or full
capacity, this Agreement shall terminate automatically. Any determination of
disability shall be made by the Board in consultation with a qualified physician
or physicians selected by the Board and reasonably acceptable to the Executive.
Section 7.03. By The Company For Cause. The employment of the
Executive may be terminated by the Company for Cause (as defined below) at any
time effective upon written notice to the Executive. The Company shall provide
the Executive with at least ten (10) business days' prior written notice of a
Board meeting at which a termination for Cause will be considered and the
Executive will have an opportunity to attend and participate in that meeting.
For purposes hereof, the term "Cause" shall mean that the Board has determined
that any one or more of the following has occurred:
(a) The Executive shall have been convicted of, or shall
have pleaded guilty or nolo contendere to, any felony or a
crime involving moral turpitude;
(b) The Executive shall have repeatedly failed or refused to
perform his duties hereunder and such failure or refusal
shall have continued for a period of ten (10) days following
written notice from the Board, it being understood that the
Company's failure to achieve its business plan or
projections shall not itself be considered a failure or
refusal to perform duties;
(c) the Executive shall have intentionally committed any
fraud, embezzlement, misappropriation of funds, breach of
fiduciary duty or other act of dishonesty against the
Company which has a material adverse effect on the Company;
or
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(d) the Executive shall have (i) failed to perform his
duties hereunder in a manner that is reasonably satisfactory
to the Board, (ii) refused to carry out the duties assigned
to him by the Board, or (iii) breached any one or more of
the material provisions of this Agreement, which failure,
refusal or breach shall have continued for a period of at
least ten (10) days after notice from the Company describing
such failure, refusal or breach in reasonable detail.
Section 7.04. By the Company Without Cause. The Company may terminate
the Executive's employment at any time without Cause effective upon written
notice to the Executive.
Section 7.05. Termination Without Cause Following Change of Control.
In the event the Company undergoes a Change of Control, termination of the
Executive's employment for any reason within sixty days after such Change of
Control shall be deemed to be a termination without Cause. In addition, each of
the following events at any time subsequent to such Change of Control shall be
deemed to be a termination without Cause: (i) any reduction in the compensation
payable to the Executive set forth in Section 4 herein; (ii) any change in the
location of the place of work of the Executive to a location more than thirty
miles from downtown Boston; and (iii) any violation by the Company of any
provision of this Agreement.
For purposes hereof a "Change of Control" shall mean the happening of
any of the following events: (i) an acquisition by any person or group of
persons of 50% or more of the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors of the
Company; (ii) the approval by the Directors or Shareholders of the Company of a
reorganization, merger or consolidation or sale or other disposition of all
substantially all of the assets of the Company which would result in the voting
securities of the
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Company immediately prior to such transaction continuing to represent less than
50% of the combined voting power of the securities entitled to vote generally in
the election of directors of the Company or such other entity outstanding
immediately after such transaction, or (iii) the members of the Board of
Directors of the Company (or their respective successors designated by the
stockholders which designated current members of the Board of Directors) on the
date hereof shall not constitute a majority of the Board of Directors of the
Company.
Section 7.06. By the Executive Voluntarily. The Executive may
terminate this Agreement at any time effective upon at least fifteen (15)
business days' prior written notice to the Company.
Section 8. Termination Payments and Benefits.
Section 8.01. Voluntary Termination, Termination For Cause. Upon any
termination of this Agreement: (1) voluntarily by the Executive or (2) by the
Company for Cause as provided in Section 7.04, all payments, salary and other
benefits hereunder shall cease at the effective date of termination except as
specifically provided in this Section 8.02.
Section 8.02. Termination without Cause, Company Election Not To
Renew, Death, Disability In the event that this Agreement is terminated by the
Company without Cause, or because of the death or permanent disability of the
Executive, the Executive shall receive as a termination settlement an amount
equal to twelve (12) month's salary as is in effect at the effective date of
termination (the "Termination Payment"). The Termination Payment shall be paid
in twelve (12) monthly installments on the first business day of each month
following the effective date of termination. If twelve (12) months following the
termination, the Executive has
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not obtained employment with similar salary, benefits and responsibilities as
described herein, the Executive shall receive as an additional termination
settlement an amount equal to six (6) month's salary (the "Additional
Termination Payment"); provided, however, such Additional Termination Payment
shall be mitigated by the amount of salary the Executive shall receive during
such additional six (6) month period. The Termination Payment shall be reduced
by any statutorily-mandated severance, change of control, plant closing, or
similar payment to the Executive by the Company or its stockholders. In addition
to the Termination Payment, the Executive shall continue to receive the
insurance benefits included as part of the fringe benefits referenced in Section
6 for a period of twelve (12) months following the effective date of termination
and any death and disability benefits hereunder for a period of (eighteen) 18
months following the effective date of termination.
Section 8.03. Acceleration of Options. In the event the Executive's
employment terminates for any reason, other than for Cause or voluntarily by the
Executive, any and all options to purchase Common Stock held by the Executive
shall immediately vest and become fully exercisable. In addition, in the event
the Company undergoes a Change of Control, all options of the Executive to
purchase Common Stock of the Company which, by the terms of the grant of such
options otherwise would become exercisable within one year following the date of
the Change of Control, shall become exercisable upon the Change of Control, and
all other options shall become exercisable one year earlier than provided for in
the grant of such options.
Section 8.04. Health and Life Insurance. In the event the Executive's
employment terminates for any reason, other than for Cause, the Company shall
continue to provide the
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Executive the benefits set forth in Section 6.02 hereof for a period of six (6)
months following the date of such termination.
Section 8.05. Outplacement Assistance. In the event the Executive's
employment terminates for any reason , other than for Cause, the Company shall
provide outplacement assistance to the Executive as is then reasonable and
customary for similarly situated businesses up to a $15,000 maximum expenditure
by the Company.
Section 8.06. Public Statement of Termination. In the event the
Executive's employment terminates for any reason, the Company and the Executive
shall agree upon a public statement pertaining to the Executive's termination of
employment, and the terms of said statement shall not be subject to subsequent
modification by either party unless required by law; provided, however, that in
the event the Company and the Executive are unable in good faith to agree on
such a statement, the Company may make public statements as are necessary to
comply with the law.
Section 8.07. No Other Benefits. Except as specifically provided in
this section 8, the Executive shall not be entitled to any compensation,
severance or other benefits from the Company upon the termination of this
Agreement for any reason whatsoever.
Section 9. Merger Clause. The Company shall not consolidate, merge or
transfer all or a substantial portion of its assets without requiring the
transferee to assume this Agreement and the obligations hereunder.
Section 10. Severable Provisions. The provisions of this Agreement
are severable and the invalidity of any one or more provisions shall not affect
the validity of any other provision.
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In the event that a court of competent jurisdiction shall determine that any
provision of this Agreement or the application thereof is unenforceable in whole
or in part because of the duration or scope thereof, the parties hereto agree
that said court in making such determination shall have the power to reduce the
duration and scope of such provision to the extent necessary to make it
enforceable, and that the Agreement in its reduced form shall be valid and
enforceable to the full extent permitted by law.
Section 11. Notices. All notices hereunder, to be effective, shall be
in writing and shall be delivered by hand or mailed by certified mail, postage
and fees prepaid, as follows:
If to the Company: Voicetek Corporation
19 Alpha Road
Chelmsford, MA 01824-4175
Attn: President
Copy to: Anthony J. Medaglia, Jr., Esq.
HUTCHINS, WHEELER & DITTMAR
A Professional Corporation
101 Federal Street
Boston, MA 02110
If to the Executive: Sheldon Dinkes
85 East India Row, Apt. 21F
Boston, MA 02110
or to such other address as a party may notify the other pursuant to a notice
given in accordance with this Section 11.
Section 12. Miscellaneous.
Section 12.01. Modification. This Agreement constitutes the entire
Agreement between the parties hereto with regard to the subject matter hereof,
superseding all prior
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understandings and agreements, whether written or oral. This Agreement may not
be amended or revised except by a writing signed by the parties.
Section 12.02. Assignment and Transfer. This Agreement shall not be
terminated by the merger or consolidation of the Company with any corporate or
other entity or by the transfer of all or substantially all of the assets of the
Company to any other person, corporation, firm or entity. The provisions of this
Agreement shall be binding on and shall inure to the benefit of any such
successor in interest to the Company. Neither this Agreement nor any of the
rights, duties or obligations of the Executive shall be assignable by the
Executive, nor shall any of the payments required or permitted to be made to the
Executive by this Agreement be encumbered, transferred or in any way
anticipated.
Section 12.03. Captions. Captions herein have been inserted solely
for convenience of reference and in no way define, limit or describe the scope
or substance of any provision of this Agreement.
Section 12.04. Governing Law. This Agreement shall be construed under
and enforced in accordance with the laws of The Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a sealed instrument as of the day and year first above written.
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VOICETEK
By:_____________________________________
Vice President
EXECUTIVE
By:_____________________________________
Name:
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