EXHIBIT 10.13
EMPLOYMENT AND NON-COMPETE AGREEMENT
THIS EMPLOYMENT AND NON-COMPETE AGREEMENT ("Agreement") is
made as of the 10th day of June, 1996, by and between U.S.
COMMUNICATIONS, INC. ("USCI"), a Delaware corporation, with its
principal office at 0000-X Xxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx
00000 and XXXXX X. XXXX ("Employee").
RECITALS
WHEREAS, USCI desires to employ Employee, and Employee
desires to serve as an employee of USCI, on the terms and
conditions hereinafter provided;
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained herein (including, without limitation, USCI's
employment of Employee and the advantages and benefits thereby
inuring to Employee) and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which
are hereby acknowledged by each party hereto, the parties hereby
agree as follows:
1. Employment. USCI agrees to employ Employee, and
Employee agrees to be employed by USCI, pursuant to the terms and
conditions of this Agreement. USCI's agreement to employ
Employee is expressly conditioned on its understanding that (i)
Employee is free to enter into the contemplated employment with
USCI and (ii) only USCI is entitled to the benefit of Employee's
work. USCI expressly disavows any interest in using any other
Person's patents, copyrights, trade secrets, or trademarks in an
unlawful manner and instructs Employee not to misuse proprietary
rights belonging to any other Person.
2. Term. The term of this Agreement shall commence on June
10th, 1996 (the "Commencement Date") and shall continue for a
period of one (1) year (the "Initial Term"), unless sooner
terminated as hereinafter set forth. In the event that USCI does
not wish to renew Employee's employment at the close of the
Initial Term, USCI shall give Employee notice no later than
ninety (90) days prior to the end of the Initial Term. After the
Initial Term, this Agreement will be renewed automatically,
without notice, for consecutive periods of one (1) year each (the
"Second Term," etc.), provided, however, that either party may
terminate the Agreement for any reason during the Second Term or
a subsequent term by giving the other party ninety (90) days'
prior written notice of the party's intention to terminate this
Agreement.
3. Duties. Employee shall serve in the capacity of Vice
President of Corporate Development and Investor Relations.
Further, Employee shall perform such additional other duties as
are customarily performed by a Person acting as a Vice President
of a corporation similar to USCI. Employee shall report to the
Chief Executive Officer of USCI. Employee shall be employed by
USCI on a full-time basis; shall devote his full business time,
attention, skill, and effort exclusively to the performance of
the duties assigned to him by USCI; and shall not during the term
of this Agreement (including any renewal terms) be engaged in any
other business activity or render any service of a business,
commercial, or professional nature, whether or not for
compensation, that impedes or detracts from Employee's
performance of services for USCI hereunder.
4. Compensation.
a. Base Salary. During the Initial Term of this
Agreement, Employee shall be paid an annual base salary of
$70.000.00. Such base salary shall be payable in accordance with
the normal payroll practices of USCI and shall be subject to
usual and customary withholdings. Should this Agreement be
renewed for a Second Term and/or any subsequent term. Employee's
base salary for such renewal term(s) shall be established by
USCI's President in his sole discretion, but in no event in an
amount less than the base salary for the immediately preceding
term.
b. Performance Bonus. Employee shall be paid a
Performance Bonus based upon Net Telephone Activations ("NTAs")
processed by USCI on or after the first day of the Initial Term.
Whenever used herein, "Net Telephone Activations" or "NTAs" shall
mean all payments by carriers for activations of cellular
telephones purchased by subscribers from USCI's customers which
are paid to USCI by the applicable carrier, less all deductions
for de-activated customers. The Performance Bonus shall be
payable within ninety (90) days of the end of the Initial Term or
the Second Term or any subsequent term, if the Agreement is
renewed for such periods. Provided, if employee's employment
with USCI is terminated prior to the end of any term other than
for Cause, as defined in Section 11 below or voluntary
resignation, then USCI shall pay the Performance Bonus as
determined through the effective date of termination for the
partial term. Such Performance Bonus, if any, shall be
determined as provided immediately below and shall be payable
within ninety (90) days of the effective date of termination.
(1) Employee's Performance Bonus shall be equal to
$0.50 per NTA after the first 25,000 NTAs and $1.00 per NTA after
the first 100,000 NTAs in the Initial Term of this Agreement, up
to a maximum Performance Bonus of $40,000.00 for the Initial
Term.
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(2) If this Agreement is renewed for the Second
Term, Employee's Performance Bonus shall be equal to $0.50 per
NTA after the first 25,000 NTAs and $1.00 per NTA after the first
100,000 NTAs in the Second Term, up to a maximum Performance
Bonus of $75,000.00 for the Second Term.
(3) If this Agreement is renewed for any
subsequent year-long term, Employee's Performance Bonus shall be
equal to $0.50 per NTA after the first 25,000 NTAs and $1.00 per
NTA after the first 100,000 NTAs in that term, up to a maximum
Performance Bonus of $110,000 for any subsequent term.
(4) In the event that the condition precedent of
at least 25,000 NTAs in the Initial Term is not satisfied or the
Performance Bonus for the Initial Term is less than $2,500.00
USCI's Board of Directors may nevertheless elect to pay Employee
a bonus in such amount as the Board, in its sole discretion,
deems appropriate (the "Discretionary Bonus"), provided, however,
that the Discretionary Bonus combined with Performance Bonus will
in no event be less than $2,500.00 or more than $10,000.00. The
Discretionary Bonus, if any, shall be payable within ninety (90)
days of the end of the Initial Term, provided that Employee has
not been terminated for Cause or voluntary resignation prior to
the end of the Initial Term.
5. Signing Bonus. Employee shall be paid a signing bonus
of $2.500.00 payable on December 10, 1996 unless Employee's
employment with USCI terminates, as a result of either his
voluntary resignation or termination for Cause pursuant to
Section 11 of this Agreement, prior to his completion of this six
(6) month period, in which event Employee shall not receive any
portion of this signing bonus.
6. Car Allowance. USCI shall pay Employee a car allowance
of $500.00 per month.
7. Out-of-Pocket Expenses. USCI shall promptly reimburse
Employee, in accordance with USCI's standard reimbursement
policy, for reasonable expenses actually incurred by him in the
performance of his duties hereunder, including reasonable travel
and entertainment expenses. Employee shall properly account
therefor in accordance with Company policy.
8. Participation in Benefit and Insurance Plans; Vacations.
Employee shall be entitled to participate in or receive benefits
under any retirement, medical, dental, accident, life, or other
employee benefit plan or program made available by USCI to all of
its employees or otherwise made available to other executive
officers of USCI. Employee and his spouse and dependents shall
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become eligible for coverage under USCI's medical insurance plan
once he has completed sixty (60) days of employment with USCI.
Employee shall be eligible for paid vacation as follows:
a. one (1) week during the Initial Term, to be taken
only after Employee has been employed six (6) months;
b. two (2) weeks during the Second Term of the
Agreement, if any; and
c. three (3) weeks during any subsequent term of the
Agreement, if any.
9. Key-Man Insurance. USCI shall be entitled to purchase
and maintain "key-man" or other life insurance on the life of
Employee for the sole benefit of USCI, and Employee shall
cooperate with USCI in securing such insurance.
10. Incentive Stock Options.
Employee shall receive options ("Options") to purchase
100,000 shares of USCI, Inc.'s authorized but unissued Common
Stock, par value $0.0001 per share, at the closing price as
quoted on NASD National Market System on such date pursuant to
the terms of the USCI, Inc. Amended and Restated 1992 Stock
Option Plan (the "Plan") and the Incentive Stock Option Agreement
(the "Option Agreement") attached hereto as Exhibit A. These
options are intended to be qualified as Incentive Stock Options
as that term is defined in the Internal Revenue Code of 1986, as
amended. USCI intends to seek shareholder approval for an
amendment to the Plan increasing the number of shares that may be
issued under the Plan, including the shares issuable under the
Options.
All Options may be exercised by Employee, as provided by the
Plan. Additional options may be granted by USCI's Board of
Directors, in its sole discretion.
11. Termination Upon Death or Disability or for Cause.
a. Employee's employment hereunder (i) shall be
terminated by his death or Total Disability (as hereinafter
defined) and (ii) may be terminated by USCI at any time for Cause
(as hereinafter defined). In the event of any such termination
of employment, Employee shall be paid his base salary through the
date of death, Total Disability, or termination for Cause, as the
case may be, and shall not be entitled to receive any further
compensation or benefits and, in particular, shall not receive
any severance pay. Employee's employment may be terminated for
Cause, effective immediately, upon the giving of written notice
to Employee by USCI's President or Board of Directors.
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b. Whenever used herein:
(1) "Total Disability" shall mean the failure or
inability of Employee to perform substantially all of his duties
of employment as required hereunder for a total of ninety (90)
consecutive days due to any physical or mental disorder.
(2) "Cause" shall mean: (A) any willful or
material breach or violation of any of Employee's covenants,
duties, or obligations under this Agreement (including Employee's
resignation), or any willful or material neglect of or failure or
refusal to perform any of such covenants, duties, or obligations;
(B) any willful or material misconduct, including, without
limitation, misconduct involving fraud or dishonesty in the
performance of such covenants, duties, or obligations, or conduct
which is reasonably deemed to be injurious to USCI; (C) Employee
having or suffering from any drug, alcohol, or other substance
abuse problem; (D) the commission by Employee of a crime
involving moral turpitude; or (E) any willful violation or
refusal to obey the lawful directives or reasonable instructions
of USCI's President or Board of Directors.
12. Termination Without Cause. Anything to the contrary in
this Agreement notwithstanding, the Board of Directors of USCI
may, at any time, terminate Employee's employment hereunder
without Cause and without any warning or prior notice. In the
event that Employee's employment is terminated without Cause at
any time during the Initial Term, Employee shall receive his base
salary, car allowance, paid vacation and any other compensation
and benefits for the remainder of the Initial Term but shall
receive no other payments or benefits from USCI. In the event
that Employee's employment is terminated without Cause during the
Second Term or any subsequent term, if any, Employee shall not
receive any severance pay or other payments or benefits from
USCI, provided, however, that if Employee is terminated without
Cause during the Second Term or any subsequent term, if any, with
less than the ninety (90) days' notice provided in Section 2 of
this Agreement, Employee shall receive his base salary and any
other compensation and benefits for such ninety (90) day notice
period.
13. Duties Upon Termination. Upon Employee's termination
of emploYment hereunder for any reason, Employee shall promptly
return to USCI any and all records, files, notes, memoranda,
reports, tape recordings, computer programs, disks, cassettes,
copies, and other physical representations of any information
relating to USCI or its subsidiaries or affiliates whether or not
constituting Confidential Information (as hereinafter defined).
Employee hereby acknowledges that any and all such items are and
shall remain at all times the sole property of USCI.
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14. Inventions and Discoveries. Any and all articles and
processes invented or discovered by or with the participation of
Employee (whether or not patented or patentable), trademarks,
patents, designs, and theories of production, management,
operations, and marketing, and, in general, anything of value
received or created by Employee relating to USCI or any of its
subsidiaries or affiliates during Employee's employment by USCI
and all rights of every kind and nature whatsoever thereunder
shall be considered work made for hire by Employee and are and
shall immediately be and become the property of USCI and not of
Employee. Employee shall promptly notify the President of USCI
of all such items and shall assign, transfer, and deliver to
USCI all patents, copyrights, royalties, designs, and theories
and any and all rights and interests whatsoever thereto and
thereunder, without further compensation, immediately upon the
request of the President or the Board of Directors.
15. Employee's Covenants.
a. Employee acknowledges that (i) the knowledge and
experience that he will acquire while an employee of USCI and his
services to be rendered to USCI are of special, unique, and
extraordinary character and that his position with USCI will
place him in a position of confidence and trust with the
customers, Prospective Customers (as hereinafter defined), and
other employees of USCI and allow him access to Confidential
Information (as hereinafter defined); (ii) the nature and periods
of the restrictions imposed by the covenants contained in this
Section 15 are fair, reasonable, and necessary to protect and
preserve for USCI the benefits of Employee's employment
hereunder and that such restrictions will not prevent Employee
from earning a livelihood; (iii) USCI would sustain great and
irreparable loss and damage if Employee were in any manner to
breach any of such covenants; (iv) USCI conducts its business
actively in and throughout the entire Territory (as hereinafter
defined) and other Persons are engaged in like and similar
business in the Territory; (v) the Territory is reasonably sized
because the Business of USCI (as hereinafter defined) is of a
limited and unusual nature, is scattered over a wide geographical
area, and requires the entire Territory for profitable
operations; and (vi) Employee's duties hereunder will include
servicing, production, operations, selling, marketing, and/or
managerial activities throughout the entire Territory on behalf
of USCI.
b. Having acknowledged the foregoing, Employee
covenants and agrees with USCI that while in USCI's employ and
through the period ending two (2) years after the date of
termination of Employee's employment with USCI for any reason:
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(1) Employee will not, directly or indirectly,
provide, within the Territory, Services (as hereinafter defined)
to any Person which is at the time, directly or indirectly,
in competition with the Business of USCI (as hereinafter defined)
or any subsidiary or affiliate thereof engaged in similar
business, whether as an officer, director, shareholder, partner,
proprietor, employee, agent, consultant, or independent
contractor.
(2) Employee will not, directly or indirectly, on
Employee's own behalf or on behalf of any other Person, solicit
or call upon any customer or Prospective Customer of USCI with a
view to selling or providing to such customer or Prospective
Customer any product or service, competitive or potentially
competitive with any product or services sold or provided or
under development by USCI during the two (2) year period
immediately preceding Employee's termination of employment with
USCI; provided, however, that the restrictions set forth in this
subsection (2) shall apply only to customers or Prospective
Customers of USCI with whom Employee had Material Contact (as
hereinafter defined) during such two year period.
(3) Employee will not, directly or indirectly,
solicit, recruit, or hire, directly or by assisting others, or
attempt to solicit, recruit, or hire to any competing Person, any
employee of USCI or its affiliates.
(4) Employee will not, directly or indirectly,
disclose to any Person or use or otherwise exploit for Employee's
own benefit or for the benefit of any other Person any
Confidential Information which was disclosed to Employee or came
within Employee's knowledge while an employee of USCI; provided,
however, that this subsection (4) shall not limit in any manner
the protection of USCI's trade secrets otherwise afforded by law;
and provided further, that this subsection (4) shall not limit in
any manner the protection afforded to USCI by the Georgia
Computer Systems Protection Act, as amended.
c. For purposes of this Agreement:
(1) "Business of USCI" shall mean the business of
activation and/ or sale of wireless communication devices and
reselling of wireless communication services, including but not
limited to cellular, paging, and PCS.
(2) "Confidential Information" shall mean
information (in any form or media) regarding USCI's customers,
Prospective Customers (including lists of customers and
Prospective Customers), methods of operation, billing rates,
billing procedures, suppliers, business methods, finances,
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management, or any other business information relating to USCI
(whether constituting a trade secret or proprietary or otherwise)
which has value to USCI and is treated by USCI as being
confidential; provided, however, that Confidential Information
shall not include any information that has been voluntarily
disclosed to the public by USCI (except where such public
disclosure has been made by Employee without authorization) or
that has been independently developed and disclosed by others, or
that otherwise enters the public domain through lawful means.
(3) "Material Contact" shall mean contact between
Employee and each customer or Prospective Customer (A) with whom
Employee dealt; (B) whose dealings with USCI were coordinated or
supervised by Employee; (C) about whom Employee obtained
Confidential Information in the ordinary course of business as a
result of Employee's association with USCI; or (D) who receives
products or services authorized by USCI, the sale or provision of
which results or resulted in compensation, commissions, bonuses,
or earnings for Employee.
(4) "Person" shall mean and include any
individual, partnership, association, corporation, trust,
unincorporated organization, or any other business entity or
enterprise.
(5) "Prospective Customer" shall mean any Person
to whom USCI has sent or delivered a written sales or servicing
proposal or contract in connection with the Business of USCI.
(6) "Services" shall mean services substantially
similar to those services contemplated herein to be provided by
Employee to USCI and those services actually provided by Employee
to USCI within one (1) year prior to the termination of
Employee's employment with USCI.
(7) "Territory" shall mean that geographical area
consisting of the United States of America.
d. Employee acknowledges that his breach of any
covenant contained in this Section 15 will result in irreparable
injury to USCI and that USCI's remedy at law for such a breach
will be inadequate. Accordingly, Employee agrees and consents
that USCI, in addition to all other remedies available at law and
in equity, shall be entitled to both preliminary and permanent
injunctions to prevent and/or halt a breach or threatened breach
by Employee of any covenant contained herein.
e. Each covenant contained in this Section 15 shall be
construed as separate and independent of any other covenant or
provision of this Agreement, and the existence or assertion of
any claim, demand, action, or cause of action against USCI,
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whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by USCI of any of the
covenants contained in this Section 15. In the event that the
provisions of this Section 15 should ever be deemed to exceed the
time, scope, or geographic limitations permitted by applicable
law, then such provisions shall be reformed to the maximum time,
scope, and geographic limitations permitted by such law.
f. In the event the enforceability of any of the
covenants in this Section 15 shall be challenged by Employee in
court (either as plaintiff or as defendant in an action brought
by USCI) and Employee is not enjoined from breaching any of such
covenants, then if a court of competent jurisdiction finds that
the challenged covenant is enforceable, the time period in
subsection (b) applicable to such covenant shall be deemed tolled
upon the filing of such suit and until the dispute is finally
resolved and all periods of appeal have expired.
16. General Provisions.
a. Assignment. Employee acknowledges that the
services to be rendered by him hereunder are unique and personal.
Accordingly, Employee shall not assign any of his rights or
delegate any of his duties or obligations under this Agreement.
The rights and obligations of USCI under this Agreement may be
assigned or delegated by USCI to any subsidiary, affiliate, or
successor of USCI, and in such event, shall inure to the benefit
of and be enforceable by any such assignee or delegate.
b. Entire Agreement; Amendment. This Agreement
contains the entire agreement of the parties hereto relating to
the subject matter hereof, and there are no written or oral terms
or representations made by either party other than those
described herein. No amendment or modification of this Agreement
shall be valid or binding unless made in writing and duly
executed by each of the parties hereto. Employee acknowledges
that he has read and understood this Agreement and that he has
been given a copy hereof for his personal use and records.
c. Notices. All notices which may or are required to
be given pursuant to this Agreement shall be (i) either delivered
in person or sent via certified or registered mail, return
receipt requested, and (ii) addressed to the party to whom sent
or given at the address set forth on the first page hereof or to
such other address as any party hereto may have given to the
other party hereto in such manner. If delivered, such notice
shall be deemed given when received; if mailed, such notice shall
be deemed made or given five (5) days after such notice has been
mailed as provided above.
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d. Arbitration and Choice of Forum. No civil action
concerning any dispute arising hereunder shall be instituted
before any court and all such disputes shall be submitted to
final and binding arbitration under the Georgia Code, the Federal
Arbitration Act, 9 U.S.C. Section 1 et. seq. and the auspices of
the American Arbitration Association. Such arbitration shall be
conducted in accordance with the rules of said Acts and
Association before a panel of three (3) arbitrators, one who
shall be selected by the Employee, one who shall be selected by
U.S.C.I, and the third, who shall be chairman, shall be selected
by the other two arbitrators, in Atlanta, Georgia. All costs and
expenses of the arbitration, including actual attorneys' fees,
shall be allocated among the parties according to the
arbitrators' discretion. The arbitrators' award resulting
therefrom may be confirmed and entered as a final judgment in any
court of competent jurisdiction and enforced accordingly.
e. Miscellaneous. This Agreement and the rights and
obligations of the parties hereunder shall be governed by the
laws of the State of Georgia. No delay or failure by USCI in
exercising any of its rights, remedies, powers, or privileges
hereunder, at law or in equity, and no course of dealing between
USCI and Employee or any other Person shall be deemed to be a
waiver by USCI of any such rights, remedies, powers, or
privileges, even if such delay or failure is continuous or
repeated, nor shall any single or partial exercise of any right,
remedy, power, or privilege preclude any other or further
exercise thereof by USCI or the exercise of any other right,
remedy, power, or privilege by USCI. In the event that USCI is
required to enforce any of its rights hereunder, USCI shall be
entitled to recover from Employee its attorneys' fees, court
costs, and other expenses in connection therewith. Every portion
of this Agreement is intended to be severable. Whenever
possible, each such provision shall be interpreted in such manner
as to be valid and enforceable under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid
under such law, such provision shall be deemed severed herefrom
and shall be unenforceable to the extent of such prohibition or
invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXXX X. XXXX: U.S. COMMUNICATIONS, INC.:
/s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx,
Executive Vice President
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EXHIBIT A
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Agreement"),
entered into as of the ____ day of June, 1996, between USCI,
INC., a Delaware corporation, located at 0000-X Xxxxxxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000-0000 (the "Corporation") and
Xxxxx X. Xxxx, 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000
(the "Employee").
WHEREAS, the Board of Directors of the Corporation has
determined to grant an incentive stock option to the Employee,
pursuant to the Corporation's Amended and Restated 1992 Stock
Option Plan, to purchase shares of the Corporation's Common
Stock, par value $.0001 per share (the "Common Stock"), upon the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set
forth herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
1. Grant of Option. The Corporation hereby grants to the
Employee an incentive stock option (the "Option") to purchase
100,000 shares of Common Stock (the "Shares") at a price of
$_____ per Share. Unless otherwise provided herein, this Option
shall become exercisable in installments as follows: to the
extent of 10,000 Shares commencing at any time on or after each
of the first, second, third, fourth and fifth anniversaries of
the date hereof; to the extent of 5,000 Shares commencing at any
time on or after each of the second, third, fourth, fifth and
sixth anniversaries of the date hereof; to the extent of 5,000
Shares commencing at any time on or after each of the third,
fourth, fifth, sixth and seventh anniversaries of the date
hereof; and such installments shall be cumulative. The Employer
shall have authority in its discretion to prescribe in that this
option may be exercised in different installments during the term
of the option. An option may be exercised at any time or from
time to time during the term of the option as to any or all full
shares which have become purchasable under the provisions of the
option, but not at any time as to less than 25 shares unless the
remaining shares which have become so purchasable are less than
25 shares. The purchase price of the shares shall be paid in
full upon the exercise of the option, and the Company shall not
be required to deliver certificates for such shares until such
payment has been made.
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2. Method of Exercise. The Employee shall exercise the
Option, whether in whole or in part, by written notice (the
"Notice of Exercise") directed to the Secretary of the
Corporation, specifying the number of Shares to be purchased and
the purchase price being paid. The Notice of Exercise shall be
accompanied by a certified or bank check payable to the order of
the Corporation in payment of the purchase price for the number
of Shares specified therein. Subject to section 7(a) herein, upon
the Corporation's receipt of the Notice of Exercise and payment
of the purchase price of the Shares covered thereby, the
Corporation shall cause a certificate representing such Shares to
be issued to the Employee.
3. Termination of Option.
(a) Except as otherwise provided herein, the Option
shall terminate immediately upon any of the following events,
whichever occurs first:
(i) The expiration of three months from the date on
which the Employee's employment by the Corporation or, if
applicable, a parent or subsidiary thereof, or, if applicable, a
corporation, or a parent or subsidiary thereof, issuing or
assuming the Option in a transaction to which Section 425(a) of
the Code applies (a "Section 425(a) Company') is terminated for
any reason other than the Employee's permanent and total
disability, as defined in Section 22(e)(3) of the Code
("Disability"), or death;
(ii) The expiration of one year from the date on which
the Employee's employment by the Corporation, or, if applicable,
a parent or subsidiary thereof, or, if applicable, a Section
425(a) Company, is terminated by reason of the Employee's death
or Disability; or
(iii) A finding by the Corporation, after full
consideration of the facts presented on behalf of both the
Corporation and the Employee, that the Employee has breached his
employment or service contract with the Corporation or an
affiliate thereof, or has been engaged in disloyalty to the
Corporation or an affiliate thereof, including, without
limitation, fraud, embezzlement, theft, commission of a felony or
proven dishonesty in the course of his employment or service, or
has disclosed trade secrets or confidential information of the
Corporation or an affiliate thereof. In such event, in addition
to immediate termination of the Option, the Optionee shall
automatically forfeit all Shares for which the Company has not
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yet delivered the share certificates upon refund by the
Corporation of the Option price. Notwithstanding anything herein
to the contrary, the Corporation may withhold delivery of share
certificates pending the resolution of any inquiry that could
lead to a finding resulting in a forfeiture; or
(iv) The date, if any, set by the Board of Directors as
an accelerated expiration date in the event of the liquidation or
dissolution of the Corporation; or
(v) The expiration of the ten-year term of the Option
on the tenth anniversary of the date of this Agreement.
(b) For purposes of this Section, an employment
relationship will be treated as continuing intact while the
Employee is on military duty, sick leave, or other bona fide
leave of absence, including temporary employment by the
Government, if the period of such leave does not exceed 90 days,
or, if longer, so long as a statute or contract guarantees the
Employee's right to reemployment by the Corporation, or, if
applicable, a parent or subsidiary thereof, or, if applicable a
Section 425(a) Company. When the period of leave exceeds 90 days
and the Employee's right to re-employment is not guaranteed
either by statute or contract, the employment relationship will
be deemed to have terminated on the 91st day of such leave.
4. Right to Exercise. During the employee's lifetime the
Option is exercisable only by the Employee, and is not assignable
or transferable by the Employee, whether voluntarily, by
operation of law, or otherwise, and no other person or entity
shall acquire any rights thereof. In the event of the
termination of the employment of the Employee due to the
Employee's death or Disability, the Option may be exercised to
the extent exercisable on the date of such termination, in
accordance with Section 1 hereof, by the Employee or, if
applicable, the Employee's estate, duly appointed executor,
Administrator, or legal representative, or by or on behalf of
such person or persons to whom the Employee's rights under the
Option pass by will or by the laws of descent and distribution.
5. Certain Changes. Subject to the provisions of Section
422A of the Code, the number, kind, and purchase price of the
Shares shall be proportionately adjusted by the Board of
Directors of the Corporation for any increase, decrease, or
change in the outstanding Common Stock by reason of a stock
dividend, recapitalization, merger consolidation, split-up,
combination, exchange of shares, or similar transaction (but not
by reason of the issuance or purchase of Common Stock by the
Corporation in consideration for money, services, or property).
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(b) If, at any time, the Board of Directors determines, in
its discretion, that the listing, registration or qualification
of the Shares upon any securities exchange, or under any state or
federal law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or
in connection with, the issuance or purchase thereof, the Option
may not be exercised unless and until, such listing,
registration, qualification, consent, or approval shall have been
effected or obtained and is free, of any conditions, which the
Board of Directors, in its sole discretion, deems unacceptable.
7. Conditions of Exercise.
(a) Unless the Shares are covered by a then current and
effective registration statement or qualified Offering Statement
under Regulation A under the securities Act of 1933, as amended
(the "Act")), any exercise of this Option by the Employee shall
be deemed to be an acknowledgement, representation and agreement
by the Employee that (i) such Shares are being purchased for
investment and are being acquired by the Employee for investment
only and not with a view to distribute or resale (other than a
distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the
registration provisions of the Act), (ii) the Employee has ben
advised and understands that (1) the Shares have not been
registered under the Act and are "restricted securities" within
the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (2) the Company is under no
obligation to register the Shares under the Act or to take any
action which would make available to the Employee any exemption
from such registration, (iii) such shares may not be transferred
without compliance with all applicable federal and state
securities laws, and (iv) an appropriate legend referring to the
foregoing restrictions on transfer and any other restrictions
imposed herein may be endorsed on the certificates.
Notwithstanding the foregoing, if the Company determines that
issuance of the Shares should be delayed pending (A) registration
under federal or state securities laws, (B) the receipt of an
opinion of counsel satisfactory to the Company that an
appropriate exemption from such registration is available (C) the
listing or inclusion of the Shares on any securities exchange or
an automated quotation system or (D) the consent or approval of
any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the
Company may defer exercise of this Option until any of the events
described in this sentence has occurred.
(b) In addition to the satisfaction of the requirements of
Section 7(a) hereof, no disposition, within the meaning of
Section 425(c) of the Code, of any Shares issued hereunder shall
be made by the Employee within one year after the transfer of
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such Shares to the Employee, provided that the foregoing holding
periods shall not apply to the disposition of Shares issued
hereunder after the death of the Employee by the estate of the
Employee, or by a person who acquired the right to exercise the
Option by bequest or inheritance, or by reason of the death of
the Employee. For purposes of the preceding sentence, in the
case of a transfer of any Shares issued by the corporation
hereunder by an insolvent Employee to a trustee, receiver, or
other similar fiduciary in any proceeding under Title II of the
United States Code, or any other similar insolvency proceeding,
neither the transfer, nor any other transfer of such Shares for
the benefit of the Employee's creditors in such proceeding, shall
constitute a "disposition." During the five-year period
commencing five years from the date hereof, the Employee shall
notify the Corporation immediately upon and disposition of any
Shares issued hereunder.
8. Stock Option Plan/Construction of Agreement. This
Option is subject to, and the Corporation and the Employee agree
to be bound by, all of the terms and conditions of the
Corporation's Amended and Restated 1992 Stock Option Plan (the
"Plan") under which this Option was granted, as the same may have
been amended from time to time in accordance with its terms.
Pursuant to the Plan, the Board of Directors of the Corporation
or its Committee established for such purposes is vested with
conclusive authority to interpret and construe the Plan and this
Option, and is authorized to adopt rules and regulations for
carrying out the Plan. A copy of the Plan in its present form is
available for inspection during business hours by the Employee or
other persons entitled to exercise this Option at the
Corporation's principal office. Should there be any
inconsistency or discrepancy between the provisions of this
Option and the terms and conditions of the Plan, the provisions
in the Plan shall govern and prevail.
9. Status of Employee.
(a) Nothing in the Plan or in this Agreement shall confer
upon the Employee any right to continue in the employ of the
Corporation, or, if applicable, any parent or subsidiary thereof,
or, if applicable, a Section 425(a) Company, or shall interfere
in any way with the right of such entities to terminate the
Employee's employment at any time without their incurring any
liability therefor.
(b) The Employee shall have no rights as a stockholder of
the Corporation with respect to the Shares until their issuance
in accordance with Section 2 hereof.
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10. Reservation of Shares. The Board of Directors of the
Corporation shall be under no obligation to reserve shares of
Common Stock to fill the Option. Neither the Option, nor any
reservation of Common Stock thereunder, shall constitute the
establishment of a trust, and no particular shares of Common
Stock shall be identified as being optioned or reserved for the
Employee.
11. Notices. All notices permitted or required hereunder
shall be in writing and shall be sent by certified mail, return
receipt requested, postage prepaid, to the respective addresses
of the parties set forth above, or to such other address as the
party to receive the notice designates by notice to the other
party. Any such notice shall be deemed effective on delivery.
12. Entire Agreement. This Agreement is the entire
agreement, and supersedes and terminates all prior agreements
between the parties with respect to the subject matter contained
herein.
13. Amendment or Termination. Except as otherwise provided
herein, this Agreement may be modified, amended, or terminated
only by written instrument executed by both parties.
14. Waiver. No waiver of any of the provisions of this
Agreement shall be effective unless in writing and signed by the
party to be charged with such waiver, and such waiver shall be
strictly limited to the terms of such writing.
15. Binding Effect. Except as otherwise provided in
Section 4 hereof, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and their heirs,
devisees, executors, administrators, legal representatives,
successors, and assigns.
16. Law. This Agreement shall be governed by the laws of
the State of Georgia. The parties hereby consent to the
jurisdiction of the State of Georgia as a forum for litigating
any disputes arising hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Stock Option Agreement to be executed as of the date first above
written.
EMPLOYEE USCI, INC.
_____________________ By:_________________________
Xxxxx X. Xxxx Name:_______________________
(Please Print)
Title:______________________
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