EMPLOYMENT AGREEMENT
AGREEMENT, dated as of November 18, 1996, by
and between Xxxxxx X. Xxxxx (the "Executive") and United
USN, Inc., a Delaware corporation (the "Company").
WHEREAS, it is deemed by the Company to be in the
best interests of the Company to assure the Executive's
employment; and
WHEREAS, the Company and the Executive have
determined to enter into this Agreement pursuant to which
the Company will employ the Executive on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, the parties hereto
agree as follows:
1. Employment. The Company hereby agrees to
employ the Executive, and the Executive hereby accepts
such employment, on the terms and conditions hereinafter
set forth.
2. Term. This Agreement shall become
effective on the date hereof (the "Effective Date").
Unless earlier terminated as herein provided, the
Executive's employment with the Company hereunder shall
commence at the Effective Date and shall end on the last
day of the "Term". For purposes of this Agreement, the
"Term" of this Agreement shall mean the full three-year
term of the Agreement, plus any extensions made as
provided in this Section 2. On each anniversary of the
Effective Date, the Term shall automatically be extended
for an additional year unless, not later than ninety (90)
days prior to any such anniversary, the Company or the
Executive shall have given notice not to extend the Term.
For purposes of this Agreement, the "Employment Period"
(which in no event shall extend beyond the Term) shall
mean the period during which Executive has an obligation
to render services hereunder, as described in Section 3
hereof, taking into account any Notice of Termination (as
defined in Section 6(e) hereof) which may be given by
either the Company or the Executive. Nothing in this
Section shall limit the right of the Company or the
Executive to terminate the Executive's employment
hereunder on the terms and conditions set forth in
Section 6 hereof.
3. Position and Duties. On and after the
Effective Date, the Executive shall serve as Executive
Vice President and Chief Financial Officer of the Company
and shall have such additional duties and
responsibilities as may be assigned to him by the Chief
Executive Officer of the Company (or by an executive
reasonably designated by the Chief Executive Officer),
provided that such duties and responsibilities are
consistent with the Executive's position as Executive
Vice President and Chief Financial Officer of the
Company. The Executive shall report to the Chief
Executive Officer of the Company (or to an executive
reasonably designated by the Chief Executive Officer).
The Executive agrees to devote substantially all his full
working time, attention and energies during normal
business hours to the performance of his duties for the
Company, provided that the Executive may serve as a
director on the boards of such companies and
organizations as may be agreed upon in writing by the
Board of Directors of the Company (the "Board") and the
Executive.
4. Place of Performance. The principal place
of employment and office of the Executive shall be in
Chicago, Illinois or such other location as may be agreed
to in writing by the Executive.
5. Compensation and Related Matters.
(a) Base Salary. As compensation for the
performance by the Executive of his duties hereunder,
the Company shall pay the Executive an annual base salary
(effective as of November 18, 1996) of One Hundred Fifty
Thousand Dollars ($150,000)(such amount, as it may be
increased from time to time, is hereinafter referred to
as "Base Salary"). Base Salary shall be payable in
accordance with the Company's normal payroll practices,
shall be reviewed annually and may be increased upon such
review. Base Salary, once increased, shall not be
decreased.
(b) Annual Bonus. Subject to meeting
reasonable performance goals established by the Chief
Executive Officer and subject to the approval of the
Board, the Executive shall be entitled to an annual bonus
(the "Annual Bonus") for each calendar year beginning in
1997 which ends within the Employment Period, including,
without limitation, the year in which this Agreement is
executed. The Executive's target bonus shall initially
be forty percent (40%) of his then-current Base Salary.
The Annual Bonus (if any) for each fiscal year which ends
within the Employment Period shall be paid as soon as
practicable after the end of such fiscal year, and no
later than the thirtieth (30th) day immediately following
the end of such fiscal year. The percentage of Base
Salary which determines the Executive's Annual Bonus
opportunity shall be reviewed by the Board annually.
Within the ten-(10)-day period immediately following any
Change in Control (as defined in Section 9 hereof), the
Company shall pay the Executive a lump sum amount equal
to a pro rata portion of the Annual Bonus for the year in
which the Change in Control occurs, calculated by
multiplying the award that the Executive would have
earned for the entire year, assuming the achievement, at
the target level, of any performance goals established
with respect to such award, by a fraction the numerator
of which shall be the number of days of employment in
such year up to and including the date of the Change in
Control and the denominator of which shall be three-
hundred-sixty-five (365). The Executive shall also be
entitled to a one-time bonus of $20,000, payable the
first pay period within the Employment Period.
(c) Stock Options. The Executive shall
be entitled to participate, at a level appropriate to his
position with the Company, in any stock option plan or
stock-based compensation plan which the Company maintains
from time to time. The initial grants of stock options
("Options") for shares of common stock of the Company
("Shares") to the Executive will be made under the
Company's 1994 Stock Option Plan (the "1994 Plan"). The
Company agrees that it will take such actions as are
necessary (including, without limitation, amendment of
the 1994 Plan and options outstanding thereunder, subject
to any required consents of participants therein) to
assure the following:
(i) All Options held by the Executive shall become
fully vested and exercisable upon a Change in
Control (as defined in Section 9 hereof); and
(ii) Upon the occurrence during the Employment
Period of any event which affects the Shares in such
a way that an adjustment of the Options is
appropriate in order to prevent dilution of the
rights of the Executive under the Options
(including, without limitation, any dividend or
other distribution (whether in cash or in kind),
recapitalization, stock split, reverse split,
reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other
similar corporate transaction or event), the Company
shall make appropriate equitable adjustments, which
may include, without limitation, adjustments to any
or all of the number and kind of shares of stock of
the Company (or other securities) which may
thereafter be issued in connection with future
grants of options pursuant to this Section 5(c) and
which may thereafter be issued upon exercise of the
then outstanding Options and adjustments to the
exercise prices of all such Options.
(d) Expenses. The Company shall
reimburse the Executive for all reasonable business
expenses, subject to the applicable and reasonable
policies and procedures of the Company in force from time
to time.
(e) Services Furnished. The Company
shall furnish the Executive with appropriate office space
and such other facilities and services as shall be
suitable to the Executive's position and adequate for the
performance of his duties as set forth in Section 3
hereof, such office space and other facilities and
services to be furnished at the location set forth in
Section 4 hereof.
(f) Other Benefits. The Company shall
provide to the Executive such employee benefit and
compensation plans and arrangements and fringe benefits
as are generally available to senior officers of the
Company. Such arrangements shall include four weeks of
paid vacation annually. To the extent permitted by
applicable law and any third-party insurance or other
contractual terms with respect to any Company plan, any
waiting period for participation in such plan which
otherwise would be applicable to the Executive shall be
waived.
6. Termination. The Executive's employment
hereunder may be terminated as follows:
(a) Death. The Executive's employment
shall terminate upon his death. Upon such a termination,
the Executive's estate or designated beneficiary, as the
case may be, shall become entitled to the payments
provided in Section 7(b) hereof.
(b) Disability. If, as a result of the
Executive's incapacity due to physical or mental illness
(as determined by a medical doctor mutually agreed to by
the Executive or his legal representative and the
Company), the Executive shall have been absent from his
duties hereunder on a full-time basis for either one-
hundred-eighty (180) consecutive days or for an aggregate
two-hundred-ten (210) days within a consecutive two-
hundred-seventy (270) day period and, within thirty (30)
days after Notice of Termination is given, shall not have
returned to the performance of his duties hereunder on a
full-time basis ("Disability"), the Company may terminate
the Executive's employment for Disability. Upon such a
termination, the Executive shall become entitled to the
payments provided in Section 7(b) hereof.
(c) Cause. The Company may terminate the
Executive's employment hereunder for "Cause" (as defined
in this Section 6(c)). Upon such a termination, the
Executive shall become entitled to the payments provided
in Section 7(b) hereof. For purposes of this Agreement,
the Company shall have "Cause" to terminate the
Executive's employment hereunder upon (i) the willful (or
grossly negligent) and continued failure by the Executive
to substantially perform his duties hereunder (other than
any such failure resulting from the Executive's
incapacity due to physical or mental illness or any such
actual or anticipated failure after the issuance of a
"Notice of Termination" by the Executive for "Good
Reason", as defined in Section 6(d)(i) hereof), after
demand for substantial performance is delivered by the
Company that specifically identifies the manner in which
the Company believes the Executive has not substantially
performed his duties, (ii) the willful or grossly
negligent engaging by the Executive in misconduct, (iii)
any breach by the Executive of any of the provisions of
Section 10 hereof, or (iv) the Executive's being
convicted of, or pleading guilty to, a felony. For
purposes of this paragraph, no act, or failure to act, on
the Executive's part shall be considered "willful" unless
done, or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was
in the best interest of the Company. Further, unless the
Executive has been convicted of, or pleaded guilty to, a
felony, the Executive shall not be deemed to have been
terminated for Cause without (1) reasonable notice to the
Executive setting forth the reasons for the Company's
intention to terminate for Cause, (2) an opportunity for
the Executive, together with his counsel, to be heard
before the Board, and (3) delivery to the Executive of a
Notice of Termination from the Board finding that, in the
good faith opinion of a majority of the Board, the
Executive was guilty of conduct set forth above in clause
(i), (ii) or (iii) of the second sentence of this Section
6(c), and specifying the particulars thereof in
reasonable detail.
(d) Termination by the Executive.
(i) The Executive may terminate his
employment hereunder for "Good Reason", which, for
purposes of this Agreement, shall mean (A) assignment of
duties materially inconsistent with his executive status,
or substantial adverse alteration in responsibilities,
which assignment or alteration is not cured within thirty
(30) days after notice from the Executive; (B) any
failure of the Company to pay any compensation to
Executive within thirty (30) days of the Executive's
notice to Company that payment is overdue; or (C)
Company's breach of a material term or condition of the
Agreement, and failure to correct breach within thirty
(30) days after the Executive's notice thereof
(specifying in reasonable detail the particulars of such
noncompliance). Upon a Good Reason termination, the
Executive shall become entitled to the payments and
benefits provided in Section 7(c) hereof.
(ii) The Executive may terminate his
employment hereunder without Good Reason upon giving
three months notice to the Company. In the event of such
a termination, the Executive shall comply with any
reasonable request of the Company to assist in providing
for an orderly transition of authority, but such
assistance shall not delay the Executive's termination of
employment longer than six months beyond the giving of
the Executive's Notice of Termination. Upon such a
termination, the Executive shall become entitled to the
payments provided in Section 7(b) hereof.
(e) Notice of Termination. Any purported
termination of the Executive's employment (other than
termination pursuant to Section 6(a) hereof) shall be
communicated by written Notice of Termination to the
other party hereto in accordance with Section 14 hereof.
For purposes of this Agreement, a "Notice of Termination"
shall mean a notice that shall indicate the specific
termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so
indicated.
(f) Date of Termination. For purposes of
this Agreement, "Date of Termination" shall mean the
following: (i) if the Executive's employment is
terminated by his death, the date of his death; (ii) if
the Executive's employment is terminated pursuant to
Section 6(b) hereof, thirty (30) days after the Notice of
Termination is given; (iii) if the Executive's employment
is terminated pursuant to Section 6(c) hereof, the date
specified in the Notice of Termination; (iv) if the
Executive's employment is terminated pursuant to Section
6(d)(i) or 6(d)(ii) hereof, thirty (30) days after the
Notice of Termination is given; and (v) if the
Executive's employment is terminated pursuant to Section
6(d)(iii) hereof, the date determined in accordance with
said Section.
(g) Dispute Concerning Termination. If
within fifteen (15) days after any Notice of Termination
is given, or, if later, prior to the Date of Termination
(as determined without regard to this Section 6(g), the
party receiving such Notice of Termination notifies the
other party that a dispute exists concerning the
termination, the Date of Termination shall be extended
until the earlier to occur of (i) the date on which the
Term ends or (ii) the date on which the dispute is
finally resolved, either by mutual written agreement of
the parties or by the final determination of a court of
law, which is not subject to appeal; provided, however,
that the Date of Termination shall be extended by a
notice of dispute given by the Executive only if such
notice is given in good faith and the Executive pursues
the resolution of such dispute with reasonable diligence.
(h) Compensation During Dispute. If the
Date of Termination is extended in accordance with
Section 6(g) hereof, the Company shall continue to pay
the Executive the full compensation in effect when the
notice giving rise to the dispute was given (including,
but not limited to, Base Salary and Annual Bonus) and
continue the Executive as a participant in all
compensation, benefit and insurance plans in which the
Executive was participating when the notice giving rise
to the dispute was given, until the Date of Termination,
as determined in accordance with Section 6(g) hereof.
Amounts paid under this Section 6(h) are in addition to
all other amounts due under this Agreement and shall not
be offset against or reduce any other amounts due under
this Agreement.
7. Compensation During Disability or Upon
Termination.
(a) Disability Period. During any period
during the Term that the Executive fails to perform his
duties hereunder as a result of incapacity due to
physical or mental illness ("Disability Period"), the
Executive shall continue to (i) receive his full Base
Salary, (ii) remain eligible to receive an Annual Bonus
under Section 5(b) hereof, and (iii) participate in the
plans and arrangements described in Section 5(f) hereof
(except to the extent such participation is not permitted
under the terms of such plans and arrangements). Such
payments made to the Executive during the Disability
Period shall be reduced by the sum of the amounts, if
any, payable to the Executive at or prior to the time of
any such payment under disability benefit plans of the
Company or under the Social Security disability insurance
program, and which amounts were not previously applied to
reduce any such payment.
(b) Termination other than by the Company
without Cause or by the Executive with Good Reason. If
the Executive's employment hereunder is terminated other
than by the Company without Cause or by the Executive
with Good Reason, then:
(i) as soon as practicable after
the Date of Termination, the Company shall pay any
amounts earned, accrued or owing the Executive
hereunder for services prior to the Date of
Termination to the Executive (or the Executive's
estate or designated beneficiary, as the case may
be); and
(ii) the Company shall have no
additional obligations to the Executive (or the
Executive's estate or designated beneficiary) under
this Agreement except to the extent provided in
Sections 5(c) and 5(d) hereof or otherwise provided
in the applicable plans and programs of the Company.
(c) Termination by Company without Cause
or by the Executive with Good Reason. If the Executive's
employment hereunder is terminated by the Company without
Cause or by the Executive with Good Reason, then, subject
to the Executive's continuing compliance with Section 10
hereof:
(i) as soon as practicable after the
Date of Termination, the Company shall pay any
amounts earned, accrued or owing the Executive
hereunder for services prior to the Date of
Termination to the Executive;
(ii) notwithstanding any provision
of any Annual Bonus plan to the contrary, the
Company shall pay to the Executive, as soon as
practicable after the Date of Termination, a lump
sum amount, in cash, equal to the sum of (A) any
Annual Bonus which has been allocated or awarded to
the Executive for a completed fiscal year preceding
the Date of Termination under any Annual Bonus plan,
and (B) a pro rata portion to the Date of
Termination of the Annual Bonus for the year in
which the Date of Termination occurs, calculated by
multiplying the award that the Executive would have
earned for the entire year, assuming the
achievement, at the target level, of any performance
goals established with respect to such award, by a
fraction the numerator of which shall be the number
of days of employment in such year up to and
including the Date of Termination and the
denominator of which shall be three-hundred-sixty-
five (365); provided, however, that any amount
otherwise payable pursuant to this clause (B) of
this Section 7(c)(ii) shall be reduced by any pro-
rated Annual Bonus payment already received by the
Executive pursuant to Section 5(b) hereof with
respect to the year in which the Date of Termination
occurs;
(iii) subject to the Executive's
continuing compliance with Section 10 hereof, the
Company shall pay as severance payments to the
Executive (in substantially equal installments and
in the same manner and over the same period of time
as the Executive's salary payments would have been
made) an amount (the "Severance Amount") equal to
the greater of (x) the amount of the Executive's
highest annual Base Salary in effect during the Term
or (y) the aggregate amount of the Executive's Base
Salary through the end of the Term (using, to
calculate such amount, the Executive's highest
annual Base Salary in effect during the Term); such
installment payments shall cease upon any violation
of Section 10 hereof;
(iv) the Company shall maintain in
full force and effect, for the continued benefit of
the Executive until the later of (x) the first
anniversary of the Date of Termination or (y) the
end of the Term, each "employee welfare benefit
plan" (as defined in section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA")), other than any disability plan, in which
the Executive was entitled to participate
immediately prior to the Date of Termination,
provided that the Executive's continued
participation is possible under the general terms
and provisions of such plans. In the event that the
Executive's participation in any such plan is
barred, the Company shall arrange to provide the
Executive with benefits substantially similar to
those which the Executive would otherwise have been
entitled to receive under the plan from which his
continued participation is barred;
(v) if the Date of Termination shall
occur within the two (2) years immediately following
a Change in Control, then, in lieu of Shares
issuable upon exercise of the Executive's Options
(which Options shall be cancelled upon the making of
the payment referred to below), the Company shall
pay the Executive a lump sum amount, in cash, equal
to the product of (1) the excess of (x) the higher
of the "Fair Market Value" (as defined in Section
7(d) hereof) of a Share on the Date of Termination
or the highest price per Share actually paid in
connection with such Change in Control over (y) the
exercise price per Share of each such Option held by
the Executive (whether or not then fully
exercisable), times (2) the number of Shares covered
by such Option;
(vi) if the Date of Termination
shall occur within the two (2) years immediately
following a Change in Control, then, upon surrender
by the Executive of all Shares owned outright by him
and all rights which he may have to any restricted
Shares, in payment for and in lieu of all such
Shares, the Company shall pay the Executive a lump
sum amount, in cash, equal to the product of (1) the
higher of the Fair Market Value of a Share on the
Date of Termination or the highest price per Share
actually paid in connection with such Change in
Control, times (2) the number of all such Shares
(whether or not restricted) of the Executive; and
(vii) the Company shall have no
additional obligations to the Executive under this
Agreement except to the extent provided in Sections
5(c) and 5(d) hereof or otherwise provided in the
applicable plans and programs of the Company.
(d) Fair Market Value. For purposes of
this Agreement, if the Shares are publicly traded on any
date for which the "Fair Market Value" of a Share is
required by this Agreement, the "Fair Market Value" shall
be the closing price of a Share on the date the Fair
Market Value is to be determined, or if no sale is
reported for such date, then on the next preceding date
for which a sale is reported. If the Shares are not
publicly traded on any date for which the Fair Market
Value of a Share is required by this Agreement, the Fair
Market Value shall be determined in accordance with the
following procedure: The Executive and the Company shall
each select a nationally recognized appraiser, which
shall determine a value for a Share of the Company. If
the higher of the two original appraisal values is not
more than ten percent (10%) above the lower appraisal
value, the Fair Market Value shall be the value agreed
upon by the two original appraisers or, in the absence of
such an agreement, the Fair Market Value shall be the
average of the two original appraisal values. If the
higher of the two original appraisal values is more than
ten percent (10%) above the lower appraisal value, the
two appraisers shall select a third nationally recognized
appraiser who shall determine a Fair Market Value which
shall be at least equal to the lower appraisal value and
whose determination of the Fair Market Value shall be
final.
8. No Mitigation. The Executive shall not be
required to mitigate amounts payable pursuant to Section
7 hereof by seeking other employment or otherwise, but
any payments made or benefits provided pursuant to
Section 7(c)(iv) hereof shall be offset by any similar
payments or benefits made available without cost to the
Executive from any subsequent employment during the Term
(determined immediately prior to such termination of
employment).
9. Change in Control.
(a) For purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if
an event set forth in any one of the following paragraphs
(i)-(iv) shall have occurred:
(i) any Person (as defined in
Section 9(b) hereof) is or becomes the Beneficial
Owner (as defined in Section 9(c) hereof), directly
or indirectly, of securities of the Company
representing thirty-five percent (35%) or more of
the combined voting power of the Company's then
outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a
transaction described in clause (x) of paragraph
(iii) below; or
(ii) prior to any initial public
offering, the following individuals cease for any
reason to constitute a majority of the number of
directors then serving: individuals who, on the date
hereof, constitute the Board and any new director
(other than a director whose initial assumption of
office is in connection with an actual or threatened
election contest, including but not limited to a
consent solicitation, relating to the election of
directors of the Company) whose appointment or
election by the Board or nomination for election by
the Company's stockholders was approved or
recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either
were directors on the date hereof or whose
appointment, election or nomination for election was
previously so approved or recommended; or
(iii) the stockholders of the Company
approve a merger or consolidation of the Company
with any other corporation or the issuance of voting
securities of the Company in connection with a
merger or consolidation of the Company (or any
direct or indirect subsidiary of the Company)
pursuant to applicable stock exchange requirements,
other than (x) a merger or consolidation which would
result in the voting securities of the Company
outstanding immediately prior to such merger or
consolidation continuing to represent (either by
remaining outstanding or by being converted into
voting securities of the surviving entity or any
parent thereof) at least fifty percent (50%) of the
combined voting power of the securities of the
Company or such surviving entity or any parent
thereof outstanding immediately after such merger or
consolidation, or (y) a merger or consolidation
effected to implement a recapitalization of the
Company (or similar transaction) in which no Person
is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company
representing thirty-five percent (35%) or more of
the combined voting power of the Company's then
outstanding securities; or
(iv) the stockholders of the Company
approve a plan of complete liquidation or
dissolution of the Company or an agreement for the
sale or disposition by the Company of all or
substantially all of the Company's assets.
Notwithstanding the foregoing, a "Change in Control"
shall not be deemed to have occurred by virtue of the
consummation of any transaction or series of integrated
transactions immediately following which the record
holders of the common stock of the Company immediately
prior to such transaction or series of transactions
continue to have substantially the same proportionate
ownership in an entity which owns all or substantially
all of the assets of the Company immediately following
such transaction or series of transactions.
(b) For purposes of this Agreement,
"Person" shall have the meaning given in Section 3(a)(9)
of the Securities Exchange Act of 1934, as amended from
time to time (the "Exchange Act"), as modified and used
in Sections 13(d) and 14(d) thereof, except that such
term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company
or any of its affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of
such securities, (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of
stock of the Company, or (v) any of the following
entities or their affiliates: BT Capital Partners, Inc.,
Chase Capital Partners, CIBC Wood Gundy Ventures, Inc.,
Xxxxxxx Venture Partners IV and Enterprises &
Transcommunications, L.P.
(c) For purposes of this Agreement,
"Beneficial Owner" shall have the meaning set forth in
Rule 13d-3 under the Exchange Act.
10. Confidentiality, Noncompetition and
Nonsolicitation.
(a) The Executive will not, during or
after the Term, disclose to any entity or person any
information (including, but not limited to, information
about customers or about the design, manufacture or
marketing of products or services) which is treated as
confidential by the Company and to which the Executive
gains access by reason of his position as an employee of
the Company.
(b) While the Executive continues to be
an employee of the Company and for the eighteen-month
period immediately following his Date of Termination, the
Executive shall not, within any geographic region of the
United States of America in which the Company then
conducts business or in which the Company plans to
conduct business pursuant to a business strategy adopted
by the Board before the Executive's termination of
employment, except as permitted by the Company upon its
prior written consent, (i) enter, directly or indirectly,
into the employ of, or render or engage in, directly or
indirectly, any services to any person, firm or
corporation which directly competes with the Company with
respect to any business then conducted by the Company or
any business which the Company plans to enter pursuant to
a business strategy adopted by the Board before the
Executive's termination of employment (a "Competitor"),
or (ii) become interested, directly or indirectly, in any
such Competitor as an individual, partner, shareholder,
creditor, director, officer, principal, agent, employee,
trustee, consultant, advisor or in any other relationship
or capacity. The ownership of up to one percent (1%) of
any class of the outstanding securities of any publicly
traded corporation, even though such corporation may be a
Competitor, shall not be deemed as constituting an
interest in such Competitor which violates clause (ii) of
the immediately preceding sentence.
(c) While the Executive continues to be
an employee of the Company and for the eighteen-month
period immediately following his Date of Termination, the
Executive shall not, except as permitted by the Company
upon its prior written consent, (i) attempt, directly or
indirectly, to induce any employee employed by or
performing services for the Company (or its affiliates)
to be employed or perform services elsewhere, or (ii)
solicit, directly or indirectly, the customers of the
Company (or its affiliates), the suppliers of the Company
(or its affiliates) or entities or individuals having
other business relationships with the Company (or its
affiliates) for the purpose of encouraging them to
terminate (or reduce or detrimentally alter) their
respective relationships with the Company (or its
affiliates).
(d) Any violation by the Executive of
Section 10(a), 10(b) or 10(c) hereof occurring after the
Date of Termination shall entitle the Company to cease
making any payments and providing any benefits otherwise
required under Section 7(c) hereof. Additionally, the
Company shall have the right and remedy to have the
provisions of this Section 10 specifically enforced,
including by temporary and/or permanent injunction, it
being acknowledged and agreed that any such violation may
cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the
Company.
11. Independence and Severability of Section
10 Provisions. Each of the rights and remedies
enumerated in Section 10 hereof shall be independent of
the others and shall be severally enforceable and all of
such rights and remedies shall be in addition to, and not
in lieu of, any other rights and remedies available to
the Company under law or in equity. If any of the
covenants contained in Section 10 hereof or if any of the
rights or remedies enumerated in Section 10 hereof, or
any part of any of them, is hereafter construed to be
invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or
remedies which shall be given full effect without regard
to the invalid portions. If any of the covenants
contained in Section 10 is held to be unenforceable
because of the duration of such provision or the area
covered thereby, the parties agree that the court making
such determination shall have the authority to reduce the
duration and/or area of such provision, and in its
reduced form said provision shall then be enforceable.
12. Indemnification. The Company shall
indemnify the Executive to the full extent authorized by
law and the Charter and By-Laws of the Company, as
applicable, for all expenses, costs, liabilities and
legal fees which the Executive may incur in the discharge
of his duties hereunder. The Executive shall be insured
under the Company's Directors' and Officers' Liability
Insurance Policy as in effect from time to time. Any
termination of the Executive's employment or of this
Agreement shall have no effect on the continuing
operation of this Section 12.
13. Successors; Binding Agreement.
(a) The Company will require any
purchaser of all or substantially all of the business
and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be
required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Section
13 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the
Executive hereunder shall inure to the benefit of and be
enforceable by the Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the
Executive should die while any amounts would still be
payable to him hereunder if he had continued to live, all
such amounts unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to
the Executive's devisee, legatee, or other designee or,
if there be no such designee, to the Executive's estate.
14. Notices. For purposes of this Agreement,
notices and all other communications provided for in the
Agreement shall be in writing and shall be deemed to have
been duly given when delivered or received by facsimile
or three (3) days after mailing by United States
certified mail, return receipt requested, postage
prepaid, addressed, if to the Executive, to the address
inserted below the Executive's signature on the final
page hereof and, if to the Company, to the address set
forth below, or to such other address as either party may
have furnished to the other in writing in accordance
herewith, except that notice of change of address shall
be effective only upon actual receipt:
To the Company:
United USN, Inc.
00 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
15. Miscellaneous. No provision of this
Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in
writing and signed by the Executive and such officer as
may be specifically designated by the Board. No waiver
by either party hereto at any time of any breach by the
other party hereto of, or of any lack of compliance with,
any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. The validity,
interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of
Illinois (without regard to its principles of conflicts
of laws). All references to sections of ERISA shall be
deemed also to refer to any successor provisions to such
sections. Payments provided for hereunder shall be paid
net of any applicable withholding required under federal,
state or local law and any additional withholding to
which the Executive has agreed. The invalidity or
unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full
force and effect. Captions and Section headings in this
Agreement are provided merely for convenience and shall
not affect the interpretation of any of the provisions
herein. The obligations of the Company and the Executive
under this Agreement which by their nature may require
either partial or total performance after the expiration
of the Term shall survive such expiration.
16. Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together
will constitute one and the same instrument.
17. Entire Agreement. This Agreement
supersedes, as of the Effective Date, all prior
agreements, promises, covenants, arrangements,
communications, representations or warranties, whether
oral or written, by the parties hereto in respect of the
subject matter contained herein; and any prior agreement
of the parties hereto in respect of the subject matter
contained herein shall be terminated and cancelled as of
the Effective Date.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date set forth above.
UNITED USN, INC.
By: /s/ J. Xxxxxx Xxxxxxx
Name:
Title:
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
