1
EXHIBIT 10.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as of this 16 day of
November, 1998, by and between UNIVERSAL ACCESS, INC., an Illinois corporation
(the "COMPANY"), and Xxxxx Xxxxx (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 Vice President of Finance, 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 Vice President of Finance 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,
2
Employee shall devote not less than five (5) days per week to this employment,
and shall be present on the Company premises or actively engaged in service to
or on behalf of the Company during normal business hours Monday through Friday,
excluding periods of vacation and sick leave.
ARTICLE II
TERM
2.1 Term. The term of employment under this Agreement shall be three (3) years
(the "Initial Term"), commencing on the date of the Agreement. This Agreement
shall automatically renew for successive one year terms thereafter (each a
"Renewal Term") unless either party delivers notice of termination to the other
party not less than fifteen (15) days prior to the end of the Initial Term or
Renewal Term in question. The Initial Term and any Renewal Terms shall herein be
referred to as the "Employment Term".
2.2 Termination. The Employment Term and employment of Employee may be
terminated as follows:
(a) By the Company immediately for "Cause." For the purpose of this
Agreement, "Cause" shall mean (i) conduct amounting to fraud,
embezzlement, or illegal misconduct in connection with Employee's duties
under this Agreement; (ii) the conviction of Employee by a court of
proper jurisdiction of (or his or her written, voluntary and freely
given confession to) a crime which constitutes a felony (other than a
traffic violation) or an indictment that results in material injury to
the Company's property, operation or reputation; (iii) the willful
failure of Employee to comply with reasonable directions of the Company
or any of the policies of the Company after (a) written notice is
delivered to the Employee describing such willful failure and (b)
Employee has failed to cure or take substantial steps to cure such
willful failure after a reasonable time period as determined by the
Company in its reasonable discretion (not to be less than 15 days)
unless the Employee, after discussion with counsel, in good faith
believes, that the directions of the Company (or its actions or
inactions in response to the Employee's written notice) are illegal; or
(iv) willful misconduct or a material default by the Employee in the
performance or observance of any promise or undertaking of Employee
under this Agreement, which willful misconduct or default has continued
for a period of ten (10) business days after written notice thereof from
the Company to the Employee.
(b) Automatically, without the action of either party, upon the death of
Employee ("Death").
(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
2
3
unable by reason of accident or illness to substantially perform his or
her employment duties, and is expected to be in such condition for
periods totaling six (6) months (whether or not consecutive) during any
period of twelve (12) months. The determination of whether a Total
Disability has occurred shall be determined by the Company, in good
faith, at its sole discretion. Nothing herein shall limit the Employee's
right to receive any payments to which Employee may be entitled under
any disability or employee benefit plan of the Company or under any
disability or insurance policy or plan. During a period of disability
prior to termination hereunder, Employee shall continue to receive his
or her full compensation (including base salary and bonus) and benefits,
subject to offset to the extent of any disability insurance payments
received by the Employee pursuant to any disability insurance policy
maintained by or paid for by the Company.
(d) By the Employee upon ten (10) business days notice to the Company for
Good Reason, which notice shall state the reason for termination. For
the purpose of this Agreement, "Good Reason" shall mean any "Change in
Control" (as hereinafter defined) or any material failure by the Company
to comply with the provisions of this Employment Agreement, including
but not limited to, failure to timely pay any part of Employee's
compensation (including salary or bonus) or provide the benefits
contemplated herein, and which is not remedied by the Company within ten
(10) business days after receipt by the Company of written notice
thereof from Employee; provided, that if such default is of a nature
that it cannot be reasonably cured within ten (10) day period (but is
curable), then if the Company shall have commenced an attempt to cure
such default within such ten (10) day period, the period to cure the
default shall be extended until the earlier of the date which is
forty-five (45) days after receipt of notice or the Company has failed
to diligently continue its efforts in a reasonable manner to cure its
default.
For purposes hereof, the term "Change in Control" shall mean the
occurrence of any of the following:
(1) the Company: (a) consummates a merger or consolidation which results
in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) less than fifty percent (50%) of the total voting
power represented by the voting securities of the Company of such
surviving entity outstanding immediately after such merger or
consolidation; and (b) following such 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; and with job
responsibilities of a level substantially equivalent to or greater
than those presently in force and effect;
3
4
(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
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
4
5
for Cause by the Company as provided in Section 2.2(a), the Employee
shall be entitled to receive his or her or her base salary (which shall
include any of his or her unused vacation pay for the year of such
termination) and expense reimbursements solely through the date of
termination.
(b) Death or Total Disability. Upon the termination of the Employment Term
by reason of the Death or Total Disability of the Employee, the Employee
(or, in the case of Death, his or her estate) shall be entitled to
receive his or her base salary (which shall include any of his or her
unused vacation pay for the year of such termination) and expense
reimbursements solely through the date of termination.
(c) Involuntary. Upon the termination of the Employment Term:
(1) by the Company for any reason other than Cause, Death or Total
Disability, or
(2) by the Employee for Good Reason,
the Employee shall be entitled to receive in a lump sum the balance of
his or her base salary for the lesser of the remaining term of the
Employment Term (exclusive of any renewals of the then existing term) or
a period of six (6) months (the "Severance Term"), together with
prorated vacation pay and expense reimbursement through the date of
termination. In addition, Employee shall be entitled to payment by the
Company of the premiums for group health insurance coverage otherwise
payable by Employee under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA") for the Severance Term. It shall be a condition to
Employee's right to receive the payments described above that Employee
shall be in compliance with all of the Employee's obligations which
survive termination hereof, including without limitation those arising
under Articles IV and V hereof. The payments described above are
intended to be in lieu of all other payments to which Employee might
otherwise be entitled in respect of termination of Employee's employment
without Cause unless otherwise required by law or under other agreements
between the parties. Notwithstanding anything to the contrary contained
herein, to the extent Employee receives any direct or indirect
compensation, consulting fees or health insurance from any Third Parties
(as hereinafter defined) during the Severance Term or with respect to
services performed during the Severance Term such compensation shall be
credited dollar for dollar against the Severance Term payment
obligations of Company under this Section 2.4(c).
2.5 Business Expenses.
(a) Reimbursement. The Company shall reimburse the Employee for all
reasonable, ordinary, and necessary business expenses incurred by
him or her in connection with
5
6
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 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.
6
7
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.
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
7
8
any time while Employee was an employee of the Company or its Affiliates or who
is a "prospective customer"of the Company, or (ii) induce, attempt to induce or
hire any employee (or any person who was an employee during the year preceding
the date of any solicitation) of the Company or its Affiliates to leave the
employ of the Company or its Affiliates, or in any way interfere with the
relationship between any such employee and the Company or its Affiliates. For
purposes hereof, "prospective customer" shall mean any person or entity which
has been solicited for business by Employee or any officer or other employee of
the Company during the one year period preceding the date of termination of
Employee's employment with the Company, or if Employee is still employed by the
Company within the one year period preceding the event in question.
4.3 Non-Competition Covenant. Employee acknowledges that the covenants set forth
in this Section 4.3 are reasonable in scope and essential to the preservation of
the Business of the Company (as defined herein). Employee also acknowledges that
the enforcement of the covenant set forth in this Section 4.3 will not preclude
Employee from being gainfully employed in such manner and to the extent as to
provide a standard of living for himself or herself, the members of his or her
family and the others dependent upon Employee of at least the level to which
Employee and they have become accustomed and may expect. In addition, Employee
acknowledges that the Company has obtained an advantage over its competitors as
a result of its name, location and reputation that is characterized by near
permanent relationships with vendors, customers, principals and other contacts
which it has developed at great expense. Furthermore, Employee acknowledges that
competition by him or her following the termination or expiration of his or her
employment would impair the operation of the Company beyond that which would
arise from the competition of an unrelated third party with similar skills.
Employee hereby agrees that he or she shall not, during his or her employment
and for a period of one (1) year after the end of his or her employment,
directly or indirectly, engage in or become directly or indirectly interested in
any proprietorship, partnership, firm, trust, company, limited liability company
or other entity, other than the Company (whether as owner, partner, trustee,
beneficiary, stockholder, member, officer, director, employee, independent
contractor, agent, servant, consultant, lessor, lessee or otherwise) that
competes with the Company in the Business of the Company in the Restricted
Territory (as defined herein), other than owning an interest in a company listed
on a recognized stock exchange in an amount which does not exceed five percent
(5%) of the outstanding stock of such corporation. For purposes of this
Agreement, (i) the term "Business of the Company" shall include all business
activities and ventures related to providing telecommunications services or
products in which the Company is engaged, plans to engage in the next twelve
(12) months following termination of Employee's employment or has engaged in
during the prior twelve (12) months, as determined at any time during the
employment of the Employee; and (ii) the term "Restricted Territory" means the
geographical area consisting of a seventy mile radius surrounding each city (and
including such city) in which the Company maintains either an office or a
telecommunications facility.
8
9
4.4 Remedies.
(a) Injunctive Relief. Employee expressly acknowledges and agrees that the
Business of the Company is highly competitive and that a violation of
any of the provisions of Sections 4.1, 4.2 or 4.3 would cause immediate
and irreparable harm, loss and damage to the Company not adequately
compensable by a monetary award. Employee further acknowledges and
agrees that the time periods and territorial areas provided for herein
are the minimum necessary to adequately protect the Business of the
Company, the enjoyment of the Confidential Information and the goodwill
of the Company. Without limiting any of the other remedies available to
the Company at law or in equity, or the Company's right or ability to
collect money damages, Employee agrees that any actual or threatened
violation of any of the provisions of Sections 4.1, 4.2 or 4.3 may be
immediately restrained or enjoined by any court of competent
jurisdiction, and that a temporary restraining order or emergency,
preliminary or final injunction may be issued in any court of competent
jurisdiction, without notice and without bond.
(b) Enforcement. It is the desire of the parties that the provisions of
Sections 4.1, 4.2 or 4.3 be enforced to the fullest extent permissible
under the laws and public policies in each jurisdiction in which
enforcement might be sought. Accordingly, if any particular portion of
Sections 4.1, 4.2 or 4.3 shall ever be adjudicated as invalid or
unenforceable, or if the application thereof to any party or
circumstance shall be adjudicated to be prohibited by or invalidated by
such laws or public policies, such section or sections shall be (i)
deemed amended to delete therefrom such portions so adjudicated or (ii)
modified as determined appropriate by such a court, such deletions or
modifications to apply only with respect to the operation of such
section or sections in the particular jurisdictions so adjudicating on
the parties and under the circumstances as to which so adjudicated.
(c) Legal Fees. The Employee shall reimburse the Company for all reasonable
costs and expenses, including, but not limited to, attorney's fees,
incurred by the Company in connection with the enforcement of the
provisions set forth in this Agreement.
4.5 Company. All references to the Company in this Article IV shall include
"Affiliates" of the Company, as that term is construed under Rule 405 of the
Securities Act of 1933, as amended.
4.6 Consideration. The undertakings of Employee pursuant to Sections 4.2 and 4.3
hereof are given to the Company in consideration for the payments, if any, to be
made pursuant to Section 2.4 hereof and the grant of the stock options
referenced in Exhibit A.
9
10
ARTICLE V
ASSIGNMENT OF INTELLECTUAL PROPERTY
5.1 If Employee, during the course of his or her employment with the Company,
creates or discovers any patentable or potentially patentable invention or
design, within the meaning of Title 35 of the United States Code, any utility or
design patent that may be derived from any such invention or design created or
discovered by Employee during the course of his or her employment with the
Company shall be assigned to the Company. Employee agrees to fully cooperate
with the Company in obtaining any such patents, and Employee further agrees to
execute any and all documents the Company may deem necessary to obtain such
patent or to document such assignment to the Company. Employee hereby designates
the Company as his/her attorney-in-fact to execute any such documents relating
to any such patent or assignment thereof to the Company;
5.2 Employee agrees that any original work of authorship fixed in a tangible
medium of expression, including but not limited to literary works; computer
programs, software or other associated intangible property; network
configuration; musical works, including any accompanying words; dramatic works,
including any accompanying music; pantomimes and choreographic works; pictorial,
graphic and sculptural works; motion pictures and other audiovisual works; sound
recordings; and architectural works, within the meaning of Title 17 of the
United States Code, created during the course of his or her employment with the
Company shall be a "work for hire" within the meaning of Section 201(b) of the
Copyright Act, 17 U.S.C. Section 201(b), and that all ownership rights comprised
in the copyright shall vest exclusively in the Company. Employee agrees to fully
cooperate with the Company in obtaining registration of any such copyright,
except that the Company will be responsible for any and all fees and costs
associated with obtaining any such copyright registration;
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;
10
11
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices or other communications required or permitted hereunder
shall be in writing and shall be deemed given, delivered and received (a) when
delivered, if delivered personally, (b) four days after mailing, when sent by
registered or certified mail, return receipt requested and postage prepaid, (c)
one business day after delivery to a private courier service, when delivered to
a private courier service providing documented overnight service, and (d) on the
date of delivery if delivered by telecopy, receipt confirmed, provided that a
confirmation copy is sent on the next business day by first class mail, postage
prepaid, in each case addressed as follows:
To Employee at his or her home address as set forth on the books and
records of the Company.
To Company at: Universal Access, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx - Xxxxx 0000(0)
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.
11
12
6.3 Benefit. This Agreement shall be binding upon, and inure to the benefit of,
and shall be enforceable by, the heirs, successors, legal representatives and
permitted assignees of Employee and the successors, assignees and transferees of
the Company. This Agreement or any right or interest hereunder may not be
assigned by Employee without the prior written consent of the Company. No
implication shall be drawn in favor or against either party based upon the role
of such party's counsel in the drafting of this Agreement.
6.4 No Waiver. No failure or delay on the part of any party hereto in exercising
any right, power or remedy hereunder or pursuant hereto shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder or pursuant thereto.
6.5 Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law
but, if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement. If any part of any covenant or
other provision in this Agreement is determined by a court of law to be overly
broad thereby making the covenant unenforceable, the parties hereto agree, and
it is their desire, that the court shall substitute a judicially enforceable
limitation in its place, and that as so modified the covenant shall be binding
upon the parties as if originally set forth herein.
6.6 Compliance and Headings. Time is of the essence of this Agreement. The
headings in this Agreement are intended to be for convenience and reference
only, and shall not define or limit the scope, extent or intent or otherwise
affect the meaning of any portion hereof.
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.
12
13
6.10 Arbitration. Except as expressly contemplated by Article IV, any dispute
arising between the parties pursuant to this Agreement shall be submitted to
binding arbitration. Any arbitration proceeding involving any provision hereof
will be conducted in Chicago, Illinois. Except as otherwise provided in this
Agreement, all arbitration proceedings will be conducted in accordance with the
then current National Rules for the Resolution of Employment Disputes of the
American Arbitration Association ("AAA"). One arbitrator shall conduct the
proceedings, and shall be elected in accordance with the procedures of the AAA.
The arbitrator shall allow such discovery as the arbitrator determines
appropriate under the circumstances. The arbitrator shall determine which party,
if either, prevailed and shall award the prevailing party its costs. Each party
shall bear his, her or its respective legal fees. The award and decision of the
arbitrator shall be conclusive and binding on all parties to this Agreement and
judgment on the award may be entered in any court of competent jurisdiction. The
parties acknowledge and agree that any arbitration award may be enforced against
either or both of them in a court of competent jurisdiction and each waives any
right to contest the validity or enforceability of such award. The parties
further agree to be bound by the provisions of any statute of limitations which
would be applicable in a court of law to the controversy or claim which is the
subject of any arbitration proceeding initiated under this Agreement. The
parties further agree that they are entitled in any arbitration proceeding to
the entry of an order, by a court of competent jurisdiction pursuant to an
opinion of the arbitrator, for specific performance of any of the requirements
of this Agreement. The parties further agree that the arbitrator shall provide a
statement of reasons explaining the basis of the decision rendered.
6.11 Survival. Notwithstanding anything to the contrary contained herein, the
terms of Articles III, IV, V and VI hereof shall survive any termination of this
Agreement and remain in full force and effect thereafter.
13
14
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered as of the day and year first above written.
UNIVERSAL ACCESS, INC.
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Its: President and CEO
EMPLOYEE:
/s/ XXXXX XXXXX
-----------------------------------
XXXXX XXXXX
14
15
EXHIBIT A - ECONOMIC TERMS OF EMPLOYMENT AGREEMENT
UNIVERSAL ACCESS, INC./XXXXX XXXXX
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 $125,000 (One Hundred
Twenty-Five 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 4 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.
15
