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EXHIBIT 10.24
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as of this 4th day
of August 1999, by and between UNIVERSAL ACCESS, INC., a Delaware corporation
(the "COMPANY"), and Xxxxx Xxxxxx (the "EMPLOYEE").
RECITALS:
A. The Company is in the telecommunications business.
B. The Company desires to employ the Employee and Employee desires to be
employed by the Company as its Executive Vice President of Marketing, subject to
the terms, conditions and covenants hereinafter set forth.
C. As a condition of the Company employing the Employee, and to the
Company's agreement to grant stock options to the Employee pursuant to the
Company's stock option plan, Employee has agreed not to divulge to the public
the Company's confidential information, not to solicit the Company's vendors,
customers or employees and not to compete with the Company, all upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
covenants and conditions set forth herein, the Employee and the Company hereby
agree as follows:
ARTICLE I
EMPLOYMENT
1.1 Employment. The Company hereby employs, engages, and hires Employee,
and Employee hereby accepts employment, upon the terms and conditions set forth
in this Agreement. The Employee shall serve as the Executive Vice President of
Marketing of the Company. The Employee shall have and fully perform the duties
and responsibilities required for such job title and position and to perform
such additional services and discharge such other responsibilities as may be,
from time to time, assigned or delegated by the Company.
1.2 Activities and Duties During Employment. Employee represents and
warrants to the Company that Employee is free to accept employment with the
Company and that Employee has no prior or other commitments or obligations of
any kind to anyone else which would hinder or interfere with the performance of
this Agreement.
1.3 Employee accepts the employment described in Article I of this
Agreement and agrees to devote his or her full time and efforts to the faithful
and diligent performance of the services described herein, including the
performance of such other services and responsibilities
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as the Company may, from time to time, stipulate. Without limiting the
generality of the foregoing, Employee shall devote not less than five (5) days
per week to this employment, and shall be present on the Company premises or
actively engaged in service to or on behalf of the Company during normal
business hours Monday through Friday, excluding periods of vacation and sick
leave.
ARTICLE II
TERM
2.1 Term. The term of employment under this Agreement shall be one (1)
year (the "Initial Term"), commencing on the date of the Agreement. This
Agreement shall automatically renew for successive one year terms thereafter
(each a "Renewal Term") unless either party delivers notice of termination to
the other party not less than fifteen (15) days prior to the end of the Initial
Term or Renewal Term in question. The Initial Term and any Renewal Terms shall
herein be referred to as the "Employment Term".
2.2 Termination. The Employment Term and employment of Employee may be
terminated as follows:
(a) By the Company immediately for "Cause." For the purpose of this
Agreement, "Cause" shall mean (i) conduct amounting to fraud,
embezzlement, or illegal misconduct in connection with Employee's
duties under this Agreement; (ii) the conviction of Employee by a
court of proper jurisdiction of (or his or her written, voluntary
and freely given confession to) a crime which constitutes a felony
(other than a traffic violation) or an indictment that results in
material injury to the Company's property, operation or reputation;
(iii) the willful failure of Employee to comply with reasonable
directions of the Company or any of the policies of the Company
after (a) written notice is delivered to the Employee describing
such willful failure and (b) Employee has failed to cure or take
substantial steps to cure such willful failure after a reasonable
time period as determined by the Company in its reasonable
discretion (not to be less than 15 days) unless the Employee, after
discussion with counsel, in good faith believes, that the directions
of the Company (or its actions or inactions in response to the
Employee's written notice) are illegal; or (iv) willful misconduct
or a material default by the Employee in the performance or
observance of any promise or undertaking of Employee under this
Agreement, which willful misconduct or default has continued for a
period of ten (10) business days after written notice thereof from
the Company to the Employee.
(b) Automatically, without the action of either party, upon the death of
Employee ("Death").
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(c) By either party upon the Total Disability of the Employee. The
Employee shall be considered to have a Total Disability for purposes
of this Agreement if he or she is unable by reason of accident or
illness to substantially perform his or her employment duties, and
is expected to be in such condition for periods totaling six (6)
months (whether or not consecutive) during any period of twelve (12)
months. The determination of whether a Total Disability has occurred
shall be determined by the Company, in good faith, at its sole
discretion. Nothing herein shall limit the Employee's right to
receive any payments to which Employee may be entitled under any
disability or employee benefit plan of the Company or under any
disability or insurance policy or plan. During a period of
disability prior to termination hereunder, Employee shall continue
to receive his or her full compensation (including base salary and
bonus) and benefits, subject to offset to the extent of any
disability insurance payments received by the Employee pursuant to
any disability insurance policy maintained by or paid for by the
Company.
(d) By the Employee upon ten (10) business days notice to the Company
for Good Reason, which notice shall state the reason for
termination. For the purpose of this Agreement, "Good Reason" shall
mean any "Change in Control" (as hereinafter defined) or any
material failure by the Company to comply with the provisions of
this Employment Agreement, including but not limited to, failure to
timely pay any part of Employee's compensation (including salary or
bonus) or provide the benefits contemplated herein, and which is not
remedied by the Company within ten (10) business days after receipt
by the Company of written notice thereof from Employee; provided,
that if such default is of a nature that it cannot be reasonably
cured within ten (10) day period (but is curable), then if the
Company shall have commenced an attempt to cure such default within
such ten (10) day period, the period to cure the default shall be
extended until the earlier of the date which is forty-five (45) days
after receipt of notice or the Company has failed to diligently
continue its efforts in a reasonable manner to cure its default.
For purposes hereof, the term "Change in Control" shall mean the
occurrence of any of the following:
(1) the Company: (a) consummates a merger or consolidation which
results in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) less than fifty percent
(50%) of the total voting power represented by the voting
securities of the Company of such surviving entity outstanding
immediately after such merger or consolidation; and (b)
following such
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event, the successor entity fails to employ Employee as follows
(hereinafter, the "Same Terms"): on substantially identical
terms as are required per this Agreement for the remaining
Employment Term, and the successor entity further continues to
employ Employee in the same city and with job responsibilities
of a level substantially equivalent to or greater than those
presently in force and effect;
(2) a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one
transaction or a series of transactions) all or substantially
all of the Company's assets is consummated, and following such
event the successor entity (if any) fails to employ Employee on
the Same Terms; or
(3) Company consummates a plan of complete liquidation of the
Company or an agreement for the sale or disposition (in one
transaction or a series of transactions) by the Company of all
or substantially all of the Company's assets, and following such
event the successor entity (if any) fails to employ Employee on
the Same Terms;
provided, however, that a public offering of the stock of the
Company irrespective of the amount of voting securities owned by
present shareholders after such offering shall not be deemed to
constitute a Change of Control; and provided further that if
Employee agrees to be employed by a successor entity on the Same
Terms and the successor entity fails to do so, a Change in Control
shall be deemed to have occurred.
(e) By the Employee without Good Reason, and therefore in breach of this
Agreement.
(f) By the Company other than for Cause, Death or Total Disability, in
which event Employee's sole remedy and compensation as a result of
such termination shall be as set forth in Section 2.4(c) below.
2.3 Cessation of Rights and Obligations: Survival of Certain Provisions.
On the date of expiration or earlier termination of the Employment Term for any
reason, all of the respective rights, duties, obligation and covenants of the
parties, as set forth herein, shall, except as specifically provided herein to
the contrary, cease and become of no further force or effect as of the date of
said termination, and shall only survive as expressly provided for herein.
2.4 Cessation of Compensation. In lieu of any severance under any
severance plan that the Company may then have in effect, and subject to (i) the
receipt of a full and unconditional release from Employee and (ii) any amounts
owed by the Employee to the Company under any
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contract, agreement or loan document entered into after the date hereof which
relates solely to his or her employment with the Company (including, but not
limited to, loans made by the Company to the Employee), the Company shall pay to
the Employee, and the Employee shall be entitled to receive, the following
amounts within thirty (30) days of the date of a termination of his or her
employment:
(a) Voluntary Termination/Cause/Expiration of Term. Upon (i) Employee
terminating his or her employment without Good Reason as provided in
Section 2.2(e), (ii) the expiration of the Employment Term because
the Employee or the Company elects to not extend the Employment
Term, or (iii) a termination of the Employment Term for Cause by the
Company as provided in Section 2.2(a), the Employee shall be
entitled to receive his or her or her base salary (which shall
include any of his or her unused vacation pay for the year of such
termination) and expense reimbursements solely through the date of
termination.
(b) Death or Total Disability. Upon the termination of the Employment
Term by reason of the Death or Total Disability of the Employee, the
Employee (or, in the case of Death, his or her estate) shall be
entitled to receive his or her base salary (which shall include any
of his or her unused vacation pay for the year of such termination)
and expense reimbursements solely through the date of termination.
(c) Involuntary. Upon the termination of the Employment Term:
(1) by the Company for any reason other than Cause, Death or Total
Disability, or
(2) by the Employee for Good Reason,
the Employee shall be entitled to receive in a lump sum the balance
of his or her base salary for the lesser of the remaining term of
the Employment Term (exclusive of any renewals of the then existing
term) or a period of six (6) months (the "Severance Term"), together
with prorated vacation pay and expense reimbursement through the
date of termination. In addition, Employee shall be entitled to
payment by the Company of the premiums for group health insurance
coverage otherwise payable by Employee under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") for the
Severance Term. It shall be a condition to Employee's right to
receive the payments described above that Employee shall be in
compliance with all of the Employee's obligations which survive
termination hereof, including without limitation those arising under
Articles IV and V hereof. The payments described above are intended
to be in lieu of all other payments to which Employee might
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otherwise be entitled in respect of termination of Employee's
employment without Cause unless otherwise required by law or under
other agreements between the parties. Notwithstanding anything to
the contrary contained herein, to the extent Employee receives any
direct or indirect compensation, consulting fees or health insurance
from any Third Parties (as hereinafter defined) during the Severance
Term or with respect to services performed during the Severance Term
such compensation shall be credited dollar for dollar against the
Severance Term payment obligations of Company under this Section
2.4(c).
2.5 Business Expenses.
(a) Reimbursement. The Company shall reimburse the Employee for all
reasonable, ordinary, and necessary business expenses incurred by
him or her in connection with the performance of his or her duties
hereunder, including, but not limited to, ordinary and necessary
travel expenses and entertainment expenses. The reimbursement of
business expenses will be governed by the policies of the Company
from time-to-time and the terms otherwise set forth herein.
(b) Accounting. The Employee shall provide the Company with an
accounting of his or her expenses, which accounting shall clearly
reflect which expenses were incurred for proper business purposes in
accordance with the policies adopted by the Company and as such are
reimbursable by the Company. The Employee shall provide the Company
with such other supporting documentation and other substantiation of
reimbursable expenses as will conform to Internal Revenue Service or
other requirements. All such reimbursements shall be payable by the
Company to the Employee within a reasonable time after receipt by
the Company of appropriate documentation therefor.
2.6 Sole Compensation. Employee shall not be entitled to any other
compensation from the Company than as set forth in Article II hereof as a result
of termination of Employee's employment.
ARTICLE III
COMPENSATION AND BENEFITS
3.1 Compensation. During the Employment Term of this Agreement, the
Company shall pay Employee such salary and bonus as set forth on Exhibit A.
3.2 Payment. All compensation shall be payable in intervals in
accordance with the general payroll payment practice of the Company. The
compensation shall be subject to such
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withholdings and deductions by the Company as are required by law. On
termination of the Employment Term, the Company shall be entitled to set off
against any monies owing by the Company to Employee the amount of any monies
owing from Employee to the Company.
3.3 Other Benefits. Employee shall be entitled to participate in any
retirement, pension, profit-sharing, stock option, health plan, insurance,
disability income, incentive compensation and welfare or any other benefit plan
or plans of the Company which may now or hereafter be in effect and for which
the Employee is eligible. Notwithstanding the forgoing, the Company shall be
under no obligation to institute or continue the existence of any such benefit
plan.
ARTICLE IV
CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT
4.1 Non-Disclosure of Confidential Information. Employee hereby
acknowledges and agrees that the duties and services to be performed by Employee
under this Agreement are special and unique and that as of a result of the
employment hereunder, Employee will acquire, develop and use information of a
special and unique nature and value that is not generally known to the public or
to the Company's industry, including but not limited to, certain records, phone
locations, documentation, software programs, price lists, contract prices for
purchase and sale of telephone access and telephone services, customer lists,
prospect lists, pricing on business proposals to new and existing customers,
network configuration, supplier pricing, equipment configurations, business
plans, ledgers and general information, employee records, mailing lists,
accounts receivable and payable ledgers, financial and other records of the
Company or its Affiliates, and other similar matters (all such information being
hereinafter referred to as "CONFIDENTIAL INFORMATION"). Employee further
acknowledges and agrees that the Confidential Information is of great value to
the Company and its Affiliates and that the restrictions and agreements
contained in this Agreement are reasonably necessary to protect the Confidential
Information and the goodwill of the Company. Accordingly, Employee hereby agrees
that:
(a) Employee will not, while employed by the Company or at any time
thereafter, directly or indirectly, except in connection with
Employee's performance of the duties under this Agreement, or as
otherwise authorized in writing by the Company for the benefit of
the Company, divulge to any person, firm, corporation, limited
liability company, or organization, other than the Company
(hereinafter referred to as "THIRD PARTIES"), or use or cause or
authorize any Third Parties to use, the Confidential Information,
except as required by law; and
(b) Upon the termination of Employee's employment for any reason
whatsoever, Employee shall deliver or cause to be delivered to the
Company any and all Confidential Information or documents containing
Confidential Information, including notes, drawings, notebooks,
notes, records, keys, data and other documents and materials
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belonging to the Company or its affiliates which is in his or her
possession or under his or her control relating to the Company or
its affiliates, regardless of the medium upon which it is stored,
and will deliver to the Company upon such termination of employment
any other property of the Company or its Affiliates which is in his
or her possession or control.
4.2 Non-Solicitation Covenant. Employee hereby covenants and agrees that
while employed by the Company and for a period of one (1) year following the
termination of Employee's employment with the Company for any reason, Employee
shall not (i) directly or indirectly, contact, solicit, interfere with, or
endeavor to entice away from the Company or its Affiliates any person, firm,
corporation, limited liability company or other entity that was a customer of
the Company at any time while Employee was an employee of the Company or its
Affiliates or who is a "prospective customer" of the Company, or (ii) induce,
attempt to induce or hire any employee (or any person who was an employee during
the year preceding the date of any solicitation) of the Company or its
Affiliates to leave the employ of the Company or its Affiliates, or in any way
interfere with the relationship between any such employee and the Company or its
Affiliates. For purposes hereof, "prospective customer" shall mean any person or
entity which has been solicited for business by Employee or any officer or other
employee of the Company during the one year period preceding the date of
termination of Employee's employment with the Company, or if Employee is still
employed by the Company within the one year period preceding the event in
question.
4.3 Non-Competition Covenant. Employee acknowledges that the covenants
set forth in this Section 4.3 are reasonable in scope and essential to the
preservation of the Business of the Company (as defined herein). Employee also
acknowledges that the enforcement of the covenant set forth in this Section 4.3
will not preclude Employee from being gainfully employed in such manner and to
the extent as to provide a standard of living for himself or herself, the
members of his or her family and the others dependent upon Employee of at least
the level to which Employee and they have become accustomed and may expect. In
addition, Employee acknowledges that the Company has obtained an advantage over
its competitors as a result of its name, location and reputation that is
characterized by near permanent relationships with vendors, customers,
principals and other contacts which it has developed at great expense.
Furthermore, Employee acknowledges that competition by him or her following the
termination or expiration of his or her employment would impair the operation of
the Company beyond that which would arise from the competition of an unrelated
third party with similar skills. Employee hereby agrees that he or she shall
not, during his or her employment and for a period of one (1) year after the end
of his or her employment, directly or indirectly, engage in or become directly
or indirectly interested in any proprietorship, partnership, firm, trust,
company, limited liability company or other entity, other than the Company
(whether as owner, partner, trustee, beneficiary, stockholder, member, officer,
director, employee, independent contractor, agent, servant, consultant, lessor,
lessee or otherwise) that competes with the Company in the Business of the
Company in the Restricted Territory (as defined herein), other than owning an
interest in a
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company listed on a recognized stock exchange in an amount which does not exceed
five percent (5%) of the outstanding stock of such corporation. For purposes of
this Agreement, (i) the term "Business of the Company" shall include all
business activities and ventures related to providing telecommunications
services or products in which the Company is engaged, plans to engage in the
next twelve (12) months following termination of Employee's employment or has
engaged in during the prior twelve (12) months, as determined at any time during
the employment of the Employee; and (ii) the term "Restricted Territory" means
the geographical area consisting of a seventy mile radius surrounding each city
(and including such city) in which the Company maintains either an office or a
telecommunications facility.
4.4 Remedies.
(a) Injunctive Relief. Employee expressly acknowledges and agrees that
the Business of the Company is highly competitive and that a
violation of any of the provisions of Sections 4.1, 4.2 or 4.3 would
cause immediate and irreparable harm, loss and damage to the Company
not adequately compensable by a monetary award. Employee further
acknowledges and agrees that the time periods and territorial areas
provided for herein are the minimum necessary to adequately protect
the Business of the Company, the enjoyment of the Confidential
Information and the goodwill of the Company. Without limiting any of
the other remedies available to the Company at law or in equity, or
the Company's right or ability to collect money damages, Employee
agrees that any actual or threatened violation of any of the
provisions of Sections 4.1, 4.2 or 4.3 may be immediately restrained
or enjoined by any court of competent jurisdiction, and that a
temporary restraining order or emergency, preliminary or final
injunction may be issued in any court of competent jurisdiction,
without notice and without bond.
(b) Enforcement. It is the desire of the parties that the provisions of
Sections 4.1, 4.2 or 4.3 be enforced to the fullest extent
permissible under the laws and public policies in each jurisdiction
in which enforcement might be sought. Accordingly, if any particular
portion of Sections 4.1, 4.2 or 4.3 shall ever be adjudicated as
invalid or unenforceable, or if the application thereof to any party
or circumstance shall be adjudicated to be prohibited by or
invalidated by such laws or public policies, such section or
sections shall be (i) deemed amended to delete therefrom such
portions so adjudicated or (ii) modified as determined appropriate
by such a court, such deletions or modifications to apply only with
respect to the operation of such section or sections in the
particular jurisdictions so adjudicating on the parties and under
the circumstances as to which so adjudicated.
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(c) Legal Fees. The Employee shall reimburse the Company for all
reasonable costs and expenses, including, but not limited to,
attorney's fees, incurred by the Company in connection with the
enforcement of the provisions set forth in this Agreement.
4.5 Company. All references to the Company in this Article IV shall
include "Affiliates" of the Company, as that term is construed under Rule 405 of
the Securities Act of 1933, as amended.
4.6 Consideration. The undertakings of Employee pursuant to Sections 4.2
and 4.3 hereof are given to the Company in consideration for the payments, if
any, to be made pursuant to Section 2.4 hereof and the grant of the stock
options referenced in Exhibit A.
ARTICLE V
ASSIGNMENT OF INTELLECTUAL PROPERTY
5.1 If Employee, during the course of his or her employment with the
Company, creates or discovers any patentable or potentially patentable invention
or design, within the meaning of Title 35 of the United States Code, any utility
or design patent that may be derived from any such invention or design created
or discovered by Employee during the course of his or her employment with the
Company shall be assigned to the Company. Employee agrees to fully cooperate
with the Company in obtaining any such patents, and Employee further agrees to
execute any and all documents the Company may deem necessary to obtain such
patent or to document such assignment to the Company. Employee hereby designates
the Company as his/her attorney-in-fact to execute any such documents relating
to any such patent or assignment thereof to the Company;
5.2 Employee agrees that any original work of authorship fixed in a
tangible medium of expression, including but not limited to literary works;
computer programs, software or other associated intangible property; network
configuration; musical works, including any accompanying words; dramatic works,
including any accompanying music; pantomimes and choreographic works; pictorial,
graphic and sculptural works; motion pictures and other audiovisual works; sound
recordings; and architectural works, within the meaning of Title 17 of the
United States Code, created during the course of his or her employment with the
Company shall be a "work for hire" within the meaning of Section 201(b) of the
Copyright Act, 17 U.S.C. Section 201(b), and that all ownership rights comprised
in the copyright shall vest exclusively in the Company. Employee agrees to fully
cooperate with the Company in obtaining registration of any such copyright,
except that the Company will be responsible for any and all fees and costs
associated with obtaining any such copyright registration;
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5.3 If Employee, during the course of his/her employment with the
Company, discovers, invents, or produces, without limitation, any information,
computer programs, software or other associated intangible property; network
configuration, formulae, product, device, system, technique, drawing, program or
process which is a "trade secret" as defined in his/her Employment Agreement or
within the meaning of the Illinois Trade Secret Act (irrespective of where
Employee is employed), such information, formulae, product, device, system,
technique, drawing, program or process shall be assigned to the Company.
Employee agrees to fully cooperate with the Company in protecting the value and
secrecy of any such trade secret, and further agrees to execute any and all
documents the Company deems necessary to document any such assignment to the
Company. Employee appoints the Company as his/her attorney-in-fact to execute
any documents the Company may deem necessary that relates to any such trade
secret or assignment thereof to the Company;
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given, delivered and received
(a) when delivered, if delivered personally, (b) four days after mailing, when
sent by registered or certified mail, return receipt requested and postage
prepaid, (c) one business day after delivery to a private courier service, when
delivered to a private courier service providing documented overnight service,
and (d) on the date of delivery if delivered by telecopy, receipt confirmed,
provided that a confirmation copy is sent on the next business day by first
class mail, postage prepaid, in each case addressed as follows:
To Employee at his or her home address as set forth on the books and
records of the Company.
To Company at: Universal Access, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: President
Ph: 312-660-5000
Fax: 000-000-0000
With a copy to: Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn.: Xxxxxxxx X. Xxxxxxxxx
Ph: (000) 000-0000
Fax: (000) 000-0000
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Any party may change its address for purposes of this paragraph by giving the
other party written notice of the new address in the manner set forth above.
6.2 Entire Agreement; Amendments, Etc. This Agreement contains the
entire agreement and understanding of the parties hereto, and supersedes all
prior agreements and understandings relating to the subject matter hereof.
Except as provided in Section 4.4(b), no modification, amendment, waiver or
alteration of this Agreement or any provision or term hereof shall in any event
be effective unless the same shall be in writing, executed by both parties
hereto, and any waiver so given shall be effective only in the specific instance
and for the specific purpose for which given.
6.3 Benefit. This Agreement shall be binding upon, and inure to the
benefit of, and shall be enforceable by, the heirs, successors, legal
representatives and permitted assignees of Employee and the successors,
assignees and transferees of the Company. This Agreement or any right or
interest hereunder may not be assigned by Employee without the prior written
consent of the Company. No implication shall be drawn in favor or against either
party based upon the role of such party's counsel in the drafting of this
Agreement.
6.4 No Waiver. No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder or pursuant hereto shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder or pursuant thereto.
6.5 Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law but, if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. If any part of any
covenant or other provision in this Agreement is determined by a court of law to
be overly broad thereby making the covenant unenforceable, the parties hereto
agree, and it is their desire, that the court shall substitute a judicially
enforceable limitation in its place, and that as so modified the covenant shall
be binding upon the parties as if originally set forth herein.
6.6 Compliance and Headings. Time is of the essence of this Agreement.
The headings in this Agreement are intended to be for convenience and reference
only, and shall not define or limit the scope, extent or intent or otherwise
affect the meaning of any portion hereof.
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6.7 Governing Law. The parties agree that this Agreement shall be
governed by, interpreted and construed in accordance with the laws of the State
of Illinois, and the parties agree that any suit, action or proceeding with
respect to this Agreement shall be brought in the courts of Xxxx County in the
State of Illinois or in the U.S. District Court for the Northern District of
Illinois. The parties hereto hereby accept the exclusive jurisdiction of those
courts for the purpose of any such suit, action or proceeding. Venue for any
such action, in addition to any other venue permitted by statute, will be Xxxx
County, Illinois. The parties hereby waive their right to trial by jury on any
such action.
6.8 Counterparts. This Agreement may be executed in one or more
counterparts, whether by original, photocopy or facsimile, each of which will be
deemed an original and all of which together will constitute one and the same
instrument.
6.9 Recitals. The Recitals set forth above are hereby incorporated in
and made a part of this Agreement by this reference.
6.10 Arbitration. Except as expressly contemplated by Article IV, any
dispute arising between the parties pursuant to this Agreement shall be
submitted to binding arbitration. Any arbitration proceeding involving any
provision hereof will be conducted in Chicago, Illinois. Except as otherwise
provided in this Agreement, all arbitration proceedings will be conducted in
accordance with the then current National Rules for the Resolution of Employment
Disputes of the American Arbitration Association ("AAA"). One arbitrator shall
conduct the proceedings, and shall be elected in accordance with the procedures
of the AAA. The arbitrator shall allow such discovery as the arbitrator
determines appropriate under the circumstances. The arbitrator shall determine
which party, if either, prevailed and shall award the prevailing party its
costs. Each party shall bear his, her or its respective legal fees. The award
and decision of the arbitrator shall be conclusive and binding on all parties to
this Agreement and judgment on the award may be entered in any court of
competent jurisdiction. The parties acknowledge and agree that any arbitration
award may be enforced against either or both of them in a court of competent
jurisdiction and each waives any right to contest the validity or enforceability
of such award. The parties further agree to be bound by the provisions of any
statute of limitations which would be applicable in a court of law to the
controversy or claim which is the subject of any arbitration proceeding
initiated under this Agreement. The parties further agree that they are entitled
in any arbitration proceeding to the entry of an order, by a court of competent
jurisdiction pursuant to an opinion of the arbitrator, for specific performance
of any of the requirements of this Agreement. The parties further agree that the
arbitrator shall provide a statement of reasons explaining the basis of the
decision rendered.
6.11 Survival. Notwithstanding anything to the contrary contained
herein, the terms of Articles III, IV, V and VI hereof shall survive any
termination of this Agreement and remain in full force and effect thereafter.
14
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered as of the day and year first above written.
UNIVERSAL ACCESS, INC.
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Its: CEO
EMPLOYEE:
/s/ XXXXX X. XXXXXX
-----------------------------------
NAME: Xxxxx X. Xxxxxx
15
EXHIBIT A - ECONOMIC TERMS OF EMPLOYMENT AGREEMENT
UNIVERSAL ACCESS, INC./XXXXX XXXXXX
A. Compensation.
1. During the Employment Term, the Company shall pay Employee such
salary and benefits as shall be agreed upon each year between
Employee and the Company. For the Initial Term, the Company shall
pay Employee a base salary of $155,000.00 (one hundred fifty-five
thousand dollars) per year. Thereafter, the Company shall review
the Employee's base salary annually.
2. Bonus. Employee may, at the sole discretion of the Company, be
eligible for a quarterly bonus, based on MBO's, for up to fifteen
thousand dollars ($15,000) per quarter. Upon notification to the
Employee, the Company may pay such bonuses on an annual or
semi-annual basis with respect to each calendar in the Employment
Term.
3. Other Benefits. Employee shall be entitled to participate in any
retirement, pension, profit-sharing, stock option, health plan,
insurance, disability income, incentive compensation, vacation
and welfare or any other benefit plan or plans of the Company
which may now or hereafter be in effect and for which he or she
is eligible.
4. Vacation. Employee shall be entitled to up to three (3) weeks of
paid vacation in each calendar year during the Employment Term,
provided, however, that the Employee's 1999 calendar year
vacation shall be prorated for the portion of the calendar year
remaining after the date hereof; Employee shall be entitled to
carry forward from one calendar year during the Employment Term
to the next calendar year up to one additional week's vacation,
to the extent it was accrued and not taken in the previous year
(i.e. not more than 4 week's total vacation can be taken in any
year).
5. Stock Options. Employee shall be entitled to options to purchase
up to two hundred fifty thousand (250,000) shares of the
Company's common stock at $2.75 per share in accordance with the
Company's stock option plan, as further specified in the form of
stock option agreement between Employee and the Company.
