EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of January 24, 1994, between USAI
Acquisition Corp., a Delaware corporation (the "COMPANY"), and Xxxxx X. Xxxxxx
("EXECUTIVE").
The parties hereto desire to enter into an agreement pursuant to which
Executive shall be employed by the Company as the Company's President and Chief
Executive Officer. Certain defined terms used herein are set forth in Section 9
below.
The parties hereto agree as follows:
1. EMPLOYMENT. The Company agrees to employ Executive and Executive
accepts such employment for the period beginning as of the date hereof and
ending upon termination pursuant to Section 3(a) hereof (the "EMPLOYMENT
PERIOD"). During the Employment Period, Executive shall serve as the President
and Chief Executive Officer of the Company and shall have the normal duties,
responsibilities and authority of the President and Chief Executive Officer,
including, without limitation, responsibility for all aspects of the daily
operations of the Company and the identification, negotiation and integration of
acquisitions, subject to customary oversight by the Company's board of directors
(the "BOARD").
2. COMPENSATION. During the Employment Period, the Company will pay
Executive a base salary (the "ANNUAL BASE SALARY") as the Board may designate
from time to time, at a rate initially equal to $200,000 per annum, which amount
shall be reviewed annually and shall be subject to adjustment as determined by
the Board in its discretion, based upon, among other things, the Company's
achievement of certain performance objectives; provided Annual Base Salary shall
not be less than $200,000 per annum. Following the end of each fiscal year, the
Board may, in its sole discretion, award a bonus to Executive in an amount not
expected to exceed 50% of Executive's Annual Base Salary for such year, as
determined by the Board in its discretion, based upon, among other things, the
Company's achievement of budgetary and other objectives. The Board will consult
with Executive at the beginning of each budgetary period to set reasonable
budgetary and other objectives against which the Company's performance will be
measured. Executive's Annual Base Salary for any partial year will be prorated
based upon the number of days elapsed in such year.
3. TERMINATION.
(a) EMPLOYMENT PERIOD. The Employment Period will continue until
Executive's resignation, Disability (as defined in Section 9 below) or death or
until the Board determines in its good faith judgment that termination of
Executive's employment is in the best interests of the Company.
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(b) SEVERANCE PAYMENTS. In the event Executive's employment is
terminated by the Company without Cause (as defined in Section 9 below) or as a
result of Executive's death or Disability, the Company shall pay to Executive
severance pay ("SEVERANCE PAY") equal to $16,667 per month for a period of 12
months following the date of such termination. Each such payment shall be
reduced by the amount of salary, commissions, fees, bonuses and other
compensation paid to Executive on account of any other employment or services
rendered during the period between such payment and the immediately prior
payment. Executive shall cooperate with the Company in providing information so
as to calculate the net amount due pursuant to the preceding sentence.
4. CONFIDENTIAL INFORMATION. Executive acknowledges that the
information, observations and data obtained by him during the course of his
performance under this Agreement concerning the business and affairs of the
Company and its affiliates (the "CONFIDENTIAL INFORMATION") are the property of
the Company. Therefore, Executive agrees that he will not disclose to any
unauthorized person or use for his own account any of such information,
observations or data without the Board's written consent, unless and to the
extent that the aforementioned matters become generally known to and available
for use by the public, other than as a result of Executive's acts or omissions
to act. Executive agrees to deliver to the Company at the termination of his
employment, or at any other time the Company may request in writing, all
memoranda, notes, plans, records, reports and other documents (and copies
thereof) relating to the Confidential Information (including, without
limitation, all acquisition prospects, lists and contact information) which he
may then possess or have under his control.
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5. NONCOMPETITION AND NONSOLICITATION.
(a) NONCOMPETITION. Executive acknowledges that in the course of his
employment with the Company he will become familiar with the Company's trade
secrets and with other confidential information concerning the Company and that
his services will be of special, unique and extraordinary value to the Company.
Therefore, Executive agrees that during the Noncompete Period (as defined in
Section 9 below) he shall not directly or indirectly own, manage, control,
participate in, consult with, render services for or in any manner engage in any
business competing with the businesses of the Company or its Subsidiaries as
such businesses exist on the date of the termination of Executive's employment,
within 100 miles any site of operations in which the Company or its Subsidiaries
engage in such businesses or are then in negotiations to acquire such
businesses.
(b) NONSOLICITATION. During the Noncompete Period, Executive shall
not directly or indirectly through another entity (i) induce or attempt to
induce any employee of the Company or any Subsidiary to leave the employ of the
Company or such Subsidiary, or in any way knowingly interfere with the
relationship between the Company or any Subsidiary and any employee thereof,
(ii) hire any person who was an employee of the Company or any Subsidiary at any
time during the last 12 months of the Employment Period or (iii) induce or
attempt to induce any customer, supplier, licensee or other business relation of
the Company or any Subsidiary to cease doing business with the Company or such
Subsidiary, or in any way knowingly interfere with the relationship between any
such customer, supplier, licensee or business relation and the Company or any
Subsidiary.
(c) ENFORCEMENT. If, at the time of enforcement of Section 4 or 5 of
this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum duration, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to confidential
information, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event of a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).
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6. EXECUTIVE REPRESENTATIONS. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement,
confidentiality agreement or other similar agreement with any other person or
entity and (iii) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of Executive,
enforceable in accordance with its terms.
7. SURVIVAL. Paragraphs 4 and 5 shall survive and continue in full
force in accordance with their terms notwithstanding any termination of the
Employment Period.
8. NOTICES. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
IF TO THE COMPANY:
USAI Acquisition Corp.
c/o Golder, Thoma, Xxxxxxx & Xxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
WITH A COPY TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxxxx
IF TO THE EXECUTIVE:
Xxxxx X. Xxxxxx
c/o USAI Acquisition Corp.
000-0 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
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9. DEFINITIONS.
"CAUSE" means (i) the commission of a felony or a crime involving
moral turpitude or the commission of any other act involving dishonesty,
disloyalty or fraud with respect to the Company or any of its Subsidiaries, (ii)
conduct tending to bring the Company or any of its Subsidiaries into public
disgrace or disrepute, (iii) failure to perform duties as reasonably directed by
the Board, (iv) gross negligence or willful misconduct with respect to the
Company or any of its Subsidiaries or (v) any other material breach of this
Agreement or any other agreement to which the Executive and the Company are
parties which is not cured within 10 days after written notice thereof to
Executive.
"DISABILITY" means Executive's inability, because of injury, illness
or other incapacity to perform the services to the Company contemplated hereby
for a continuous period of 90 days or for 120 days out of a continuous period of
360 days. Such Disability shall be deemed to have occurred on the 90th
consecutive day or the 120th day within the specified period, as applicable.
"NONCOMPETE PERIOD" means the Employment Period plus the two year
period immediately subsequent the Employment Period.
"SUBSIDIARY" means any corporation of which the Company owns
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
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10. GENERAL PROVISIONS.
(a) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) COMPLETE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the
complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
(c) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(d) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective successors and assigns; provided
that the rights and obligations of Executive and the Company under this
Agreement shall not be assignable without the prior written consent of the other
party.
(e) CHOICE OF LAW. The corporate law of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in accordance
with the internal laws of the State of Illinois, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois.
(f) REMEDIES. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages and
costs (including attorneys' fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and/or
other injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
(g) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
Executive.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
USAI ACQUISITION CORP.
By /s/ Xxxxxxx Xxxxx
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Its --------------------
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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