Exhibit 10.4
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of [DATE] by and between [NAME OF OFFICER] (the
"Executive") and United USN, Inc., a Delaware corporation (the "Company").
WHEREAS, it is deemed by the Company to be in the best interests of the
Company to assure the Executive's employment; and
WHEREAS, the Company and the Executive have determined to enter into this
Agreement pursuant to which the Company will employ the Executive on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby accepts such employment, on the terms and conditions
hereinafter set forth.
2. Term. This Agreement shall become effective on the date hereof
(the "Effective Date"). Unless earlier terminated as herein provided, the
Executive's employment with the Company hereunder shall commence at the
Effective Date and shall end on the last day of the "Term". For purposes of this
Agreement, the "Term" of this Agreement shall mean the full two-year term of the
Agreement, plus any extensions made as provided in this Section 2. On each
anniversary of the Effective Date, the Term shall automatically be extended for
an additional year unless, not later than ninety (90) days prior to any such
anniversary, the Company or the Executive shall have given notice not to extend
the Term. For purposes of this Agreement, the "Employment Period" (which in no
event shall extend beyond the Term) shall mean the period during which Executive
has an obligation to render services hereunder, as described in Section 3
hereof, taking into account any Notice of Termination (as defined in Section
6(e) hereof) which may be given by either the Company or the Executive. Nothing
in this Section shall limit the right of the Company or the Executive to termi-
nate the Executive's employment hereunder on the terms and conditions set forth
in Section 6 hereof.
3. Position and Duties. On and after the Effective Date, the Executive
shall serve as [POSITION] of the Company and shall have such additional duties
and responsibilities as may be assigned to him by the Chief Executive Officer of
the Company (or by an executive reasonably designated by the Chief Executive
Officer), provided that such duties and responsibilities are consistent with the
Executive's position as [POSITION] of the Company. The Executive shall report to
the Chief Executive Officer of the Company (or to an executive reasonably
designated by the Chief Executive Officer). The Executive agrees to devote
substantially all his full working time, attention and energies during normal
business hours to the performance of his duties for the Company, provided that
the Executive may serve as a director on the boards of such companies and
organizations as may be agreed upon in writing by the Board of Directors of the
Company (the "Board") and the Executive.
4. Place of Performance. The principal place of employment and office
of the Executive shall be in Chicago, Illinois or such other location as may be
agreed to in writing by the Executive.
5. Compensation and Related Matters.
(a) Base Salary. As compensation for the performance by the
Executive of his duties hereunder, the Company shall pay the Executive an annual
base salary (effective as of July 31, 1996) of [BASE SALARY] (such amount, as it
may be increased from time to time, is hereinafter referred to as "Base
Salary"). Base Salary shall be payable in accordance with the Company's normal
payroll practices, shall be reviewed annually and may be increased upon such
review. Base Salary, once increased, shall not be decreased.
(b) Annual Bonus. Subject to meeting reasonable performance goals
established by the Chief Executive Officer and subject to the approval of the
Board, the Executive shall be entitled to an annual bonus (the "Annual Bonus")
for each calendar year which ends within the Employment Period, including,
without limitation, the year in which this Agreement is executed. The
Executive's target bonus shall be in the range of fifteen percent (15%) to
thirty percent (30%) of his
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then-current Base Salary. The Annual Bonus (if any) for each fiscal year which
ends within the Employment Period shall be paid as soon as practicable after the
end of such fiscal year, and no later than the thirtieth (30th) day immediately
following the end of such fiscal year. The percentage of Base Salary which
determines the Executive's Annual Bonus opportunity shall be reviewed by the
Board annually. Within the ten-(10)-day period immediately following any Change
in Control (as defined in Section 9 hereof), the Company shall pay the Executive
a lump sum amount equal to a pro rata portion of the Annual Bonus for the year
in which the Change in Control occurs, calculated by multiplying the award that
the Executive would have earned for the entire year, assuming the achievement,
at the target level, of any performance goals established with respect to such
award, by a fraction the numerator of which shall be the number of days of
employment in such year up to and including the date of the Change in Control
and the denominator of which shall be three-hundred-sixty-five (365).
(c) Stock Options. The Executive shall be entitled to
participate, at a level appropriate to his position with the Company, in any
stock option plan or stock-based compensation plan which the Company maintains
from time to time. The Executive already holds certain stock options ("Options")
for shares of common stock of the Company ("Shares") under the Company's 1994
Stock Option Plan (the "1994 Plan"). The Company agrees that it will take such
actions as are necessary (including, without limitation, amendment of the 1994
Plan and options outstanding thereunder, subject to any required consents of
participants therein) to assure the following:
(i) All Options held by the Executive shall become fully vested and
exercisable upon a Change in Control (as defined in Section 9 hereof); and
(ii) Upon the occurrence during the Employment Period of any event which
affects the Shares in such a way that an adjustment of the Options is
appropriate in order to prevent dilution of the rights of the Executive
under the Options (including, without limitation, any dividend or other
distribution (whether in cash or in kind), recapitalization, stock split,
reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transac-
3
tion or event), the Company shall make appropriate equitable adjustments,
which may include, without limitation, adjustments to any or all of the
number and kind of shares of stock of the Company (or other securities)
which may thereafter be issued in connection with future grants of options
pursuant to this Section 5(c) and which may thereafter be issued upon
exercise of the then outstanding Options and adjustments to the exercise
prices of all such Options.
(d) Expenses. The Company shall reimburse the Executive for all
reasonable business expenses, subject to the applicable and reasonable policies
and procedures of the Company in force from time to time.
(e) Services Furnished. The Company shall furnish the Executive
with appropriate office space and such other facilities and services as shall be
suitable to the Executive's position and adequate for the performance of his
duties as set forth in Section 3 hereof, such office space and other facilities
and services to be furnished at the location set forth in Section 4 hereof.
(f) Other Benefits. The Company shall provide to the Executive
such employee benefit and compensation plans and arrangements and fringe
benefits as are generally available to senior officers of the Company.
6. Termination. The Executive's employment hereunder may be terminated
as follows:
(a) Death. The Executive's employment shall terminate upon his
death. Upon such a termination, the Executive's estate or designated
beneficiary, as the case may be, shall become entitled to the payments provided
in Section 7(b) hereof.
(b) Disability. If, as a result of the Executive's incapacity due
to physical or mental illness (as determined by a medical doctor mutually agreed
to by the Executive or his legal representative and the Company), the Executive
shall have been absent from his duties hereunder on a full-time basis for either
one-hundred-eighty (180) consecutive days or for an aggregate two-hundred-ten
(210) days within a consecutive two-hundred-seventy (270) day period and, within
thirty (30) days
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after Notice of Termination is given, shall not have returned to the performance
of his duties hereunder on a full-time basis ("Disability"), the Company may
terminate the Executive's employment for Disability. Upon such a termination,
the Executive shall become entitled to the payments provided in Section 7(b)
hereof.
(c) Cause. The Company may terminate the Executive's employment
hereunder for "Cause" (as defined in this Section 6(c)). Upon such a
termination, the Executive shall become entitled to the payments provided in
Section 7(b) hereof. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon (i) the willful
(or grossly negligent) and continued failure by the Executive to substantially
perform his duties hereunder (other than any such failure resulting from the
Executive's incapacity due to physical or mental illness or any such actual or
anticipated failure after the issuance of a "Notice of Termination" by the
Executive for "Good Reason", as defined in Section 6(d)(i) hereof, after demand
for substantial performance is delivered by the Company that specifically
identifies the manner in which the Company believes the Executive has not
substantially performed his duties, (ii) the willful or grossly negligent
engaging by the Executive in misconduct, (iii) any breach by the Executive of
any of the provisions of Section 10 hereof, or (iv) the Executive's being
convicted of, or pleading guilty to, a felony. For purposes of this paragraph,
no act, or failure to act, on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by him not in good faith and without
reasonable belief that his action or omission was in the best interest of the
Company. Further, unless the Executive has been convicted of, or pleaded guilty
to, a felony, the Executive shall not be deemed to have been terminated for
Cause without (1) reasonable notice to the Executive setting forth the reasons
for the Company's intention to terminate for Cause, (2) an opportunity for the
Executive, together with his counsel, to be heard before the Board, and (3)
delivery to the Executive of a Notice of Termination from the Board finding
that, in the good faith opinion of a majority of the Board, the Executive was
guilty of conduct set forth above in clause (i), (ii) or (iii) of the second
sentence of this Section 6(c), and specifying the particulars thereof in
reasonable detail.
(d) Termination by the Executive.
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(i) The Executive may terminate his employment hereunder for
"Good Reason", which, for purposes of this Agreement, shall mean (A) assignment
of duties materially inconsistent with his executive status, or substantial
adverse alteration in responsibilities, which assignment or alteration is not
cured within thirty (30) days after notice from the Executive; (B) any failure
of the Company to pay any compensation to Executive within thirty (30) days of
the Executive's notice to Company that payment is overdue; or (C) Company's
breach of a material term or condition of the Agreement, and failure to correct
breach within thirty (30) days after the Executive's notice thereof (specifying
in reasonable detail the particulars of such noncompliance). Upon a Good Reason
termination, the Executive shall become entitled to the payments and benefits
provided in Section 7(c) hereof.
(ii) The Executive may terminate his employment hereunder
without Good Reason upon giving three months notice to the Company. In the event
of such a termination, the Executive shall comply with any reasonable request of
the Company to assist in providing for an orderly transition of authority, but
such assistance shall not delay the Executive's termination of employment longer
than six months beyond the giving of the Executive's Notice of Termination. Upon
such a termination, the Executive shall become entitled to the payments provided
in Section 7(b) hereof.
(e) Notice of Termination. Any purported termination of the
Executive's employment (other than termination pursuant to Section 6(a) hereof)
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 14 hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice that shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
(f) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean the following: (i) if the Executive's employment is
terminated by his death, the date of his death; (ii) if the Executive's
employment is terminated pursuant to Section 6(b) hereof, thirty (30) days after
the Notice of Termi-
6
nation is given; (iii) if the Executive's employment is terminated pursuant to
Section 6(c) hereof, the date specified in the Notice of Termination; (iv) if
the Executive's employment is terminated pursuant to Section 6(d)(i) or 6(d)(ii)
hereof, thirty (30) days after the Notice of Termination is given; and (v) if
the Executive's employment is terminated pursuant to Section 6(d)(iii) hereof,
the date determined in accordance with said Section.
(g) Dispute Concerning Termination. If within fifteen (15) days
after any Notice of Termination is given, or, if later, prior to the Date of
Termination (as determined without regard to this Section 6(g), the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be extended
until the earlier to occur of (i) the date on which the Term ends or (ii) the
date on which the dispute is finally resolved, either by mutual written
agreement of the parties or by the final determination of a court of law, which
is not subject to appeal; provided, however, that the Date of Termination shall
be extended by a notice of dispute given by the Executive only if such notice is
given in good faith and the Executive pursues the resolution of such dispute
with reasonable diligence.
(h) Compensation During Dispute. If the Date of Termination is
extended in accordance with Section 6(g) hereof, the Company shall continue to
pay the Executive the full compensation in effect when the notice giving rise to
the dispute was given (including, but not limited to, Base Salary and Annual
Bonus) and continue the Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the notice
giving rise to the dispute was given, until the Date of Termination, as
determined in accordance with Section 6(g) hereof. Amounts paid under this
Section 6(h) are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
7. Compensation During Disability or Upon Termination.
(a) Disability Period. During any period during the Term that the
Executive fails to perform his duties hereunder as a result of incapacity due to
physi-
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cal or mental illness ("Disability Period"), the Executive shall continue to (i)
receive his full Base Salary, (ii) remain eligible to receive an Annual Bonus
under Section 5(b) hereof, and (iii) participate in the plans and arrangements
described in Section 5(f) hereof (except to the extent such participation is not
permitted under the terms of such plans and arrangements). Such payments made to
the Executive during the Disability Period shall be reduced by the sum of the
amounts, if any, payable to the Executive at or prior to the time of any such
payment under disability benefit plans of the Company or under the Social
Security disability insurance program, and which amounts were not previously
applied to reduce any such payment.
(b) Termination other than by the Company without Cause or by the
Executive with Good Reason. If the Executive's employment hereunder is
terminated other than by the Company without Cause or by the Executive with Good
Reason, then:
(i) as soon as practicable after the Date of Termination, the
Company shall pay any amounts earned, accrued or owing the Executive
hereunder for services prior to the Date of Termination to the Executive
(or the Executive's estate or designated beneficiary, as the case may be);
and
(ii) the Company shall have no additional obligations to the
Executive (or the Executive's estate or designated beneficiary) under this
Agreement except to the extent provided in Sections 5(c) and 5(d) hereof or
otherwise provided in the applicable plans and programs of the Company.
(c) Termination by Company without Cause or by the Executive with
Good Reason. If the Executive's employment hereunder is terminated by the
Company without Cause or by the Executive with Good Reason, then, subject to the
Executive's continuing compliance with Section 10 hereof:
(i) as soon as practicable after the Date of Termination, the
Company shall pay any amounts earned, accrued or owing the Executive
hereunder for services prior to the Date of Termination to the Executive;
(ii) notwithstanding any provision
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of any Annual Bonus plan to the contrary, the Company shall pay to the
Executive, as soon as practicable after the Date of Termination, a lump sum
amount, in cash, equal to the sum of (A) any Annual Bonus which has been
allocated or awarded to the Executive for a completed fiscal year preceding
the Date of Termination under any Annual Bonus plan, and (B) a pro rata
portion to the Date of Termination of the Annual Bonus for the year in
which the Date of Termination occurs, calculated by multiplying the award
that the Executive would have earned for the entire year, assuming the
achievement, at the target level, of any performance goals established with
respect to such award, by a fraction the numerator of which shall be the
number of days of employment in such year up to and including the Date of
Termination and the denominator of which shall be three-hundred-sixty-five
(365); provided, however, that any amount otherwise payable pursuant to
this clause (B) of this Section 7(c)(ii) shall be reduced by any pro-rated
Annual Bonus payment already received by the Executive pursuant to Section
5(b) hereof with respect to the year in which the Date of Termination
occurs;
(iii) subject to the Executive's continuing compliance with
Section 10 hereof, the Company shall pay as severance payments to the
Executive (in substantially equal installments and in the same manner and
over the same period of time as the Executive's salary payments would have
been made) an amount (the "Severance Amount") equal to the greater of (x)
the amount of the Executive's highest annual Base Salary in effect during
the Term or (y) the aggregate amount of the Executive's Base Salary through
the end of the Term (using, to calculate such amount, the Executive's
highest annual Base Salary in effect during the Term); such installment
payments shall cease upon any violation of Section 10 hereof;
(iv) the Company shall maintain in full force and effect, for
the continued benefit of the Executive until the later of (x) the first
anniversary of the Date of Termination or (y) the end of the Term, each
"employee welfare benefit plan" (as defined in section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), other than
any disability plan, in which
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the Executive was entitled to participate immediately prior to the Date of
Termination, provided that the Executive's continued participation is
possible under the general terms and provisions of such plans. In the event
that the Executive's participation in any such plan is barred, the Company
shall arrange to provide the Executive with benefits substantially similar
to those which the Executive would otherwise have been entitled to receive
under the plan from which his continued participation is barred;
(v) if the Date of Termination shall occur within the two
(2) years immediately following a Change in Control, then, in lieu of
Shares issuable upon exercise of the Executive's Options (which Options
shall be cancelled upon the making of the payment referred to below), the
Company shall pay the Executive a lump sum amount, in cash, equal to the
product of (1) the excess of (x) the higher of the "Fair Market Value" (as
defined in Section 7(d) hereof) of a Share on the Date of Termination or
the highest price per Share actually paid in connection with such Change in
Control over (y) the exercise price per Share of each such Option held by
the Executive (whether or not then fully exercisable), times (2) the number
of Shares covered by such Option;
(vi) if the Date of Termination shall occur within the two
(2) years immediately following a Change in Control, then, upon surrender
by the Executive of all Shares owned outright by him and all rights which
he may have to any restricted Shares, in payment for and in lieu of all
such Shares, the Company shall pay the Executive a lump sum amount, in
cash, equal to the product of (1) the higher of the Fair Market Value of a
Share on the Date of Termination or the highest price per Share actually
paid in connection with such Change in Control, times (2) the number of all
such Shares (whether or not restricted) of the Executive; and
(vii) the Company shall have no additional obligations to
the Executive under this Agreement except to the extent provided in
Sections 5(c) and 5(d) hereof or otherwise provided in the applicable plans
and programs of the Company.
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(d) Fair Market Value. For purposes of this Agreement, if the
Shares are publicly traded on any date for which the "Fair Market Value" of a
Share is required by this Agreement, the "Fair Market Value" shall be the
closing price of a Share on the date the Fair Market Value is to be determined,
or if no sale is reported for such date, then on the next preceding date for
which a sale is reported. If the Shares are not publicly traded on any date for
which the Fair Market Value of a Share is required by this Agreement, the Fair
Market Value shall be determined in accordance with the following procedure: The
Executive and the Company shall each select a nationally recognized appraiser,
which shall determine a value for a Share of the Company. If the higher of the
two original appraisal values is not more than ten percent (10%) above the lower
appraisal value, the Fair Market Value shall be the value agreed upon by the two
original appraisers or, in the absence of such an agreement, the Fair Market
Value shall be the average of the two original appraisal values. If the higher
of the two original appraisal values is more than ten percent (10%) above the
lower appraisal value, the two appraisers shall select a third nationally
recognized appraiser who shall determine a Fair Market Value which shall be at
least equal to the lower appraisal value and whose determination of the Fair
Market Value shall be final.
8. No Mitigation. The Executive shall not be required to mitigate
amounts payable pursuant to Section 7 hereof by seeking other employment or
otherwise, but any payments made or benefits provided pursuant to Section
7(c)(iv) hereof shall be offset by any similar payments or benefits made
available without cost to the Executive from any subsequent employment during
the Term (determined immediately prior to such termination of employment).
9. Change in Control.
(a) For purposes of this Agreement, a "Change in Control" shall
be deemed to have occurred if an event set forth in any one of the following
paragraphs (i)-(iv) shall have occurred:
(i) any Person (as defined in Section 9(b) hereof) is or
becomes the Beneficial Owner (as defined in Section 9(c) hereof), directly
or indirectly, of securities of the Company represent-
11
ing thirty-five percent (35%) or more of the combined voting power of the
Company's then outstanding securities, excluding any Person who becomes
such a Beneficial Owner in connection with a transaction described in
clause (x) of paragraph (iii) below; or
(ii) prior to any initial public offering, the following
individuals cease for any reason to constitute a majority of the number of
directors then serving: individuals who, on the date hereof, constitute the
Board and any new director (other than a director whose initial assumption
of office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by the
Board or nomination for election by the Company's stockholders was approved
or recommended by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously so approved
or recommended; or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation or the issuance of
voting securities of the Company in connection with a merger or
consolidation of the Company (or any direct or indirect subsidiary of the
Company) pursuant to applicable stock exchange requirements, other than (x)
a merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof) at least fifty percent (50%) of the combined voting power of the
securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (y) a merger
or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing
thirty-five percent (35%) or more of the combined voting power of the
Company's then outstanding securities; or
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(iv) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the
Company's assets.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of the Company
immediately following such transaction or series of transactions.
(b) For purposes of this Agreement, "Person" shall have the
meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as
amended from time to time (the "Exchange Act"), as modified and used in Sections
13(d) and 14(d) thereof, except that such term shall not include (i) the Company
or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, or (v) any of the following entities or their
affiliates: BT Capital Partners, Inc., Chase Capital Partners, CIBC Wood Gundy
Ventures, Inc., ▇▇▇▇▇▇▇ Venture Partners IV and Enterprises &
Transcommunications, L.P.
(c) For purposes of this Agreement, "Beneficial Owner" shall have
the meaning set forth in Rule 13d-3 under the Exchange Act.
10. Confidentiality, Noncompetition and Nonsolicitation.
(a) The Executive will not, during or after the Term, disclose
to any entity or person any information (including, but not limited to,
information about customers or about the design, manufacture or marketing of
products or services) which is treated as confidential by the Company and to
which the Executive
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gains access by reason of his position as an employee of the Company.
(b) While the Executive continues to be an employee of the
Company and for the [NONCOMPETITION TIME FRAME] immediately following his Date
of Termination, the Executive shall not, within any geographic region of the
United States of America in which the Company then conducts business or in which
the Company plans to conduct business pursuant to a business strategy adopted by
the Board before the Executive's termination of employment, except as permitted
by the Company upon its prior written consent, (i) enter, directly or
indirectly, into the employ of, or render or engage in, directly or indirectly,
any services to any person, firm or corporation which directly competes with the
Company with respect to any business then conducted by the Company or any
business which the Company plans to enter pursuant to a business strategy
adopted by the Board before the Executive's termination of employment (a
"Competitor"), or (ii) become interested, directly or indirectly, in any such
Competitor as an individual, partner, shareholder, creditor, director, officer,
principal, agent, employee, trustee, consultant, advisor or in any other
relationship or capacity. The ownership of up to one percent (1%) of any class
of the outstanding securities of any publicly traded corporation, even though
such corporation may be a Competitor, shall not be deemed as constituting an
interest in such Competitor which violates clause (ii) of the immediately
preceding sentence. Notwithstanding the preceding provisions of this Section
10(b), the Executive may render legal services to businesses which are directly
competitive with the Company so long as the Executive, in rendering such legal
services, does not violate any attorney-client privilege or any duties of
confidentiality and non-disclosure owed to the Company under this Agreement,
under any other agreement between the Executive and the Company, or otherwise.
(c) While the Executive continues to be an employee of the
Company and for [NONSOLICITATION TIME FRAME] immediately following his Date of
Termination, the Executive shall not, except as permitted by the Company upon
its prior written consent, (i) attempt, directly or indirectly, to induce any
employee employed by or performing services for the Company (or its affiliates)
to be employed or perform services elsewhere, or (ii) solicit, directly or
indirectly, the customers of the Company (or its affiliates), the suppliers of
the Company (or its
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affiliates) or entities or individuals having other business relationships with
the Company (or its affiliates) for the purpose of encouraging them to terminate
(or reduce or detrimentally alter) their respective relationships with the
Company (or its affiliates).
(d) Any violation by the Executive of Section 10(a), 10(b) or
10(c) hereof occurring after the Date of Termination shall entitle the Company
to cease making any payments and providing any benefits otherwise required under
Section 7(c) hereof. Additionally, the Company shall have the right and remedy
to have the provisions of this Section 10 specifically enforced, including by
temporary and/or permanent injunction, it being acknowledged and agreed that any
such violation may cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company.
11. Independence and Severability of Section 10 Provisions. Each of
the rights and remedies enumerated in Section 10 hereof shall be independent of
the others and shall be severally enforceable and all of such rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity. If any of the
covenants contained in Section 10 hereof or if any of the rights or remedies
enumerated in Section 10 hereof, or any part of any of them, is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or remedies which shall be
given full effect without regard to the invalid portions. If any of the
covenants contained in Section 10 is held to be unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the authority to reduce the
duration and/or area of such provision, and in its reduced form said provision
shall then be enforceable.
12. Indemnification. The Company shall indemnify the Executive to
the full extent authorized by law and the Charter and By-Laws of the Company, as
applicable, for all expenses, costs, liabilities and legal fees which the
Executive may incur in the discharge of his duties hereunder. The Executive
shall be insured under the Company's Directors' and Officers' Liability
Insurance Policy as in effect from time to time. Any termination of the
Executive's employment or of this
15
Agreement shall have no effect on the continuing operation of this Section 12.
13. Successors; Binding Agreement.
(a) The Company will require any purchaser of all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this Section 13 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had continued to live, all
such amounts unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
14. Notices. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or received by facsimile or three
(3) days after mailing by United States certified mail, return receipt
requested, postage prepaid, addressed, if to the Executive, to the address
inserted below the Executive's signature on the final page hereof and, if to the
Company, to the address set forth below, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon actual receipt:
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To the Company:
United USN, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
15. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or of any lack of compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Illinois (without regard to its principles of conflicts of laws).
All references to sections of ERISA shall be deemed also to refer to any
successor provisions to such sections. Payments provided for hereunder shall be
paid net of any applicable withholding required under federal, state or local
law and any additional withholding to which the Executive has agreed. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect. Captions and Section headings in
this Agreement are provided merely for convenience and shall not affect the
interpretation of any of the provisions herein. The obligations of the Company
and the Executive under this Agreement which by their nature may require either
partial or total performance after the expiration of the Term shall survive such
expiration.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Entire Agreement. This Agreement supersedes, as of the Effective
Date, all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by the
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parties hereto in respect of the subject matter contained herein; and any prior
agreement of the parties hereto in respect of the subject matter contained
herein shall be terminated and cancelled as of the Effective Date.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
UNITED USN, INC.
By:_______________________________
Name:
Title:
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[OFFICER'S NAME]
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Address
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