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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as of this 16th day
of November, 1998, by and between UNIVERSAL ACCESS, INC., an Illinois
corporation (the "COMPANY"), and Xxxx 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 Senior Vice President of Sales and 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 Senior Vice President of
Sales and 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.
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 as the Company may, from time to
time, stipulate. Without limiting the generality of the foregoing, Employee
shall devote
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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. Employee further agrees that his marketing plan for
1999 is as set forth in Exhibit 1 to Exhibit A, the terms of which are
incorporated by reference herein.
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; (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; or (v) Employee has, for any
period of three (3) consecutive months (the "Period"), failed to
generate at least $200,000 in new monthly recurring revenue for
each month within the Period from all Company distribution
channels, including without limitation subsidiaries, holding
companies and joint ventures that the Company may develop.
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(b) Automatically, without the action of either party, upon the
death of Employee ("Death").
(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
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or consolidation; and (b) following such 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 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
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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 four (4) months (the
"Severance Term"), together with prorated vacation pay and
expense reimbursement through the date of termination and the
commissions, if any, payable pursuant to Item 3(g) of Exhibit 1
to Exhibit A to this Agreement. 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 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)
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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 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
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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 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.
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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, the members of his
family and the others dependent upon him of at least the level to which he 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 following the termination or expiration of his 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 shall not, during his employment and for a period of one (1) year
after the end of his 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 an
interest in a 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 high speed
bandwidth telecommunications services in which the Company is engaged, plans to
engage in the next twelve months or has engaged in the prior twelve months, as
determined at any time during the employment of the Employee; and (ii) the term
"RESTRICTED TERRITORY" means the geographical area consisting of the State of
Illinois.
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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 and 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.
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 Section 4.1,
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 on 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
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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;
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:
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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 (1)
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
(1) After December 20, 1998; prior to such date, at 0000 X. Xxxxx, Xxxxxxx,
Xxxxxxxx 00000 (312-491-1700).
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.
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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.
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
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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.
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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 XXXXX
------------------------------
Name: Xxxxxxx Xxxxx
Title: President and CEO
EMPLOYEE:
/s/ XXXX XXXXXX
----------------------------------
XXXX XXXXXX
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EXHIBIT A - ECONOMIC TERMS OF EMPLOYMENT AGREEMENT
UNIVERSAL ACCESS, INC./XXXX 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 $120,000 (One Hundred Twenty
Thousand Dollars) per year. Thereafter, the Company shall review
the Employee's base salary annually.
2. Bonus. The Company may, at the Company's sole discretion, in
addition to Employee's base salary, pay Employee an annual bonus
with respect to each calendar year 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 3 week's total vacation can be taken in any
year).
5. Stock Options. Employee shall be entitled to options to purchase
up to 75,000 shares of the Company's common stock at $0.01 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.
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EXHIBIT 1 TO EXHIBIT A TO
EMPLOYMENT AGREEMENT
UNIVERSAL ACCESS, INC./XXXX XXXXXX
1. EXPECTATIONS:
(a) The target market for Employee will be Internet Service
Providers, Telephone Companies and Content providers requiring
local and long haul private line services, DS-1 and higher.
Acquiring these customers should be done in harmony with
Company's "one to many" sales strategy. An "Anchor Tenant" is
defined as a company that will order high volumes of private
line network services on an ongoing basis for the connection of
their network to end users;
(b) Employee will be responsible for generating $200,000 in new
monthly recurring revenue ("MRR") per month from all the
Company's distribution channels, including but not limited to
subsidiaries, holding companies and joint venture revenues that
Company may develop;
(c) A weekly update of all sales activity should be provided in all
staff meetings;
(d) Weekly paperwork as required by Company will be submitted upon
request, but usually by noon of the last day of the work week;
(e) Month end paperwork will be submitted in an accurate fashion on
the second day of the new month for the subsequent month. This
paperwork will include an accurate 30, 60 and 90 day forecast;
(f) All pricing will be quoted in an ethical and approved manner to
Company standard practices;
(g) Employee will be responsible for the timely turnaround of quote
request by all clients;
(h) The margin made on circuits is the sole responsibility of
Employee within the guidelines established by Company;
(i) The development of all marketing collateral, brochures,
advertising and branding programs should be developed in
conjunction with the Company's executive team.
2. SALES PROCESS:
(a) Employee is responsible for the timely turnaround of quote
requests by all current and prospective customers (collectively,
"Customers");
(b) Quick quotes are to be returned within 24 hours and competitive
quotes are to be returned to Customers within 72 hours;
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(c) Xxxx up of circuits is the sole responsibility of Employee
within the guidelines established by Company; variation from
guidelines requires approval by the President, Chief Operating
Officer, Chief Financial Officer or Executive Vice President of
the Company;
(d) Customers will be solicited by Employee via telephone calls,
direct prospecting and trade shows or other methods as
appropriate;
(e) Accurate and complete order information should be submitted to
the provisioning department for contract completion;
(f) Employee is responsible for delivering and explaining the first
Company invoice in person or on the phone to new Customers;
(g) All quote requests received from Customers will be directed to
the Company's web page for timely response and tracking
purposes.
3. COMMISSIONS:
(a) An order will be deemed an order when all necessary paperwork is
complete, including: Master Service Agreement or Service
Supplement, Feature Sheet, Credit Application and such other
documents required by Company from time-to-time;
(b) Orders will be considered orders after Customer passes credit
requirements;
(c) Company will accept all orders by counter signing and
commissions will be paid after Customer pays first invoice;
(d) Company will use good faith efforts to xxxx all Customers by the
8th of every month;
(e) Commissions will be paid as a percentage of gross margins on all
Company sales. Margin is calculated by subtracting the Company's
buy price from the Company's invoice price to the Customer. The
difference will be considered gross margin for commission
purposes;
(f) Employee will be paid 21% of all gross commissions paid to all
Company sales channels for the first year of each order
generated by Employee. This includes all subsidiaries and agents
that are secured by the Company;
4. ADDITIONAL QUALIFIERS:
(a) All commissions will be paid on the 15th day of the month
immediately following the end of the quarter;
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(b) Employee's compensation plan per this Schedule 1 to Exhibit A is
effective as of January 1, 1999 and will remain in effect until
changed in writing by Company in its sole discretion;
(c) In the event of a change in the Plan all future commissions will
be calculated in accordance with the Plan as amended and paid in
a lump sum commission payment;
(d) In the event of the purchase of the Company by an independent
third party or the merger of the Company into an entity where
the Company does not survive such merger, or the termination of
employment without cause, all commissions will be calculated and
paid within two weeks of the event date. Such commissions will
be calculated and include all contracted services to date, and
anniversary annuity payments for the life of all Company
contracts then in place.
5. BONUS STRUCTURE:
(a) A first quarter bonus is available for February, March and April
of 1999. If $336,000 in new monthly recurring revenue is sold
(i.e., $1,008,000 in aggregate new monthly recurring revenue for
all three months combined) an additional grant of 75,000 shares
of Company common stock will be granted pursuant to the
Company's stock option plan containing substantially the same
terms and conditions as Employee's original grant, except that
the strike price will be equal to the fair market value per
share of the common stock as of the grant date. Additionally if
this objective is hit a $20,000 bonus will be paid at the end of
1999.
(b) Each year that the Company hits its revenue objectives as set by
the Company in its sole discretion, provided Employee is still
employed by the Company, an additional stock option may be
granted by the Company in is sole discretion, pursuant to the
Company's stock option plan.
