EXHIBIT 10.30
ULTIMATE ELECTRONICS, INC.
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
AGREEMENT by and between ULTIMATE ELECTRONICS, INC. a Delaware corporation
(the "Company") and _____________ (the "Officer"), dated as of June 27, 1997.
The Board of Directors of the Company (the "Board"), has determined that it
is in the best interests of the Company and its stockholders to assure that the
Company will have the continued dedication of the Officer, notwithstanding the
possibility, threat or occurrence of a Change of Control (as defined below) of
the Company. The Board believes it is imperative to limit, as much as possible,
the inevitable distraction of the Officer by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control and
to encourage the Officer's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control. In
order to accomplish such objectives, the Board believes it is in the best
interests of the Company and its stockholders to provide the Officer with
compensation and benefits arrangements upon a Change of Control that ensure that
the compensation and benefits expectations of the Officer will be satisfied and
that are competitive with those of other corporations. Therefore, in order to
accomplish these objectives, the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. CERTAIN DEFINITIONS.
(a) The "Effective Date" shall mean the first date during the Change
of Control Period (as defined in Section 1(b)) on which a Change of Control (as
defined in Section 2) occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Officer's employment
with the Company is terminated prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Officer that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or (ii) otherwise
arose in connection with or anticipation of a Change of Control, then for all
purposes of this Agreement the "Effective Date" shall mean the date immediately
prior to the date of such termination of employment. For purposes of this
Agreement, the Committee, which shall include one or more independant persons
appointed from time to time by the Chief Executive Officer, may clarify the date
as of which a Change of Control shall be deemed to have occurred.
(b) The "Change of Control Period" shall mean the period commencing
on the date hereof and ending on the third anniversary of the date hereof;
PROVIDED, HOWEVER, that commencing on the date one year after the date hereof,
and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the "Renewal Date"),
unless previously terminated, the Change of Control Period shall be
automatically extended so as to terminate three years from such Renewal Date,
unless at least 60 days prior to the Renewal Date (and prior to the Effective
Date), the Company shall give notice to the Officer that the Change of Control
Period shall not be so extended.
2. CHANGE OF CONTROL. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) Any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "1934 Act")),
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or Xx. Xxxxxxx X. Xxxxxx, directly or indirectly, is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, of more than fifteen percent (15%) of the then
outstanding voting stock of the Company and the Committee shall have the right,
in its sole discretion, to increase such percentage up to thirty-three percent
(33%) in the event the fifteen percent threshold is crossed; or
(b) Individuals who, as of the date hereof, constitute the Board (and
any new director whose election by the Board or whose nomination for election by
the Company's stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors as of the date hereof
or
whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority thereof; or
(c) The stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than a merger or consolidation
which would result 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) at least 51% of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation, or the stockholders approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets; PROVIDED, HOWEVER, that if the
merger, plan of liquidation or sale of substantially all assets is not
consummated following such stockholder approval and the transaction is
abandoned, then the Change of Control shall be deemed not to have occurred.
3. EMPLOYMENT PERIOD. The Company hereby agrees to continue the Officer
in its employ, and the Officer hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the third anniversary of such
date (the "Employment Period").
4. TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES.
(i) During the Employment Period, (A) the Officer's position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of
those held, exercised and assigned at any time during the 120-day
period immediately preceding the Effective Date and (B) the
Officer's services shall be performed at the location where the
Officer was employed 120 days immediately preceding the Effective
Date or at any office or location less than 30 miles from such
location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Officer is entitled, the
Officer agrees to devote reasonable attention and time during
normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities
assigned to the Officer hereunder, to use the Officer's reasonable
best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a
violation of this Agreement for the Officer (A) to serve on
corporate, civic or charitable boards or committees, (B) to deliver
lectures, fulfill speaking engagements or teach at educational
institutions and (C) to manage personal investments, so long as
such activities do not interfere significantly with the performance
of the Officer's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and
agreed that to the extent that any such activities have been
conducted by the Officer prior to the Effective Date, the continued
conduct of such activities (or the conduct of activities similar in
nature and scope thereto) subsequent to the Effective Date shall
not thereafter be deemed to interfere with the performance of the
Officer's responsibilities to the Company.
(b) COMPENSATION.
(i) BASE SALARY. During the Employment Period, the Officer
shall receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least equal to 12 times the
highest monthly base salary paid or payable, including any base
salary which has been earned but deferred, to the Officer by the
Company and its affiliated companies in respect of the 12-month
period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base Salary shall
be reviewed no more than 12 months after the last salary increase
awarded to the Officer prior to the Effective Date and thereafter
at least annually. Any increase in Annual Base Salary shall not
serve to limit or reduce any other
obligation to the Officer under this Agreement. Annual Base Salary
shall not be reduced after any such increase and the term Annual
Base Salary as utilized in this Agreement shall refer to Annual
Base Salary as so increased. As used in this Agreement, the term
"affiliated companies" shall include any company controlled by,
controlling or under common control with the Company.
(ii) ANNUAL BONUS. In addition to Annual Base Salary, the Officer
shall be awarded, for each fiscal year ending during the Employment
Period, an annual bonus (the "Annual Bonus") in cash at least equal
to the average of the Officer's bonuses over the last three fiscal
years, or such lesser number of years as the Officer may have been
employed by the Company, prior to the Effective Date (annualized in
the event that the Officer was not employed by the Company for an
entire fiscal year) (the "Recent Annual Bonus"). Each such Annual
Bonus shall be paid no later than the end of the third month of the
fiscal year next following the fiscal year for which the Annual
Bonus is awarded, unless the Officer shall elect to defer the
receipt of such Annual Bonus.
(iii) INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the
Employment Period, the Officer shall be entitled to participate in
all incentive, savings and retirement plans, practices, policies
and programs applicable generally to other peer executives of the
Company and its affiliated companies but in no event shall such
plans, practices, policies and programs provide the Officer with
incentive opportunities (measured with respect to both regular and
special incentive opportunities to the extent, if any, that such
distinction is applicable), savings opportunities and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company
and its affiliated companies for the Officer under such plans,
practices, policies and programs as in effect at any time during
the 120-day period immediately preceding the Effective Date or if
more favorable to the Officer, those provided generally at any time
after the Effective Date to other peer executives of the Company
and its affiliated companies.
(iv) WELFARE BENEFIT PLANS. During the Employment Period, the
Officer and/or the Officer's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other peer executives of the
Company and its affiliated companies, but in no event shall such
plans, practices, policies and programs provide the Officer with
benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies and programs in effect
for the Officer at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Officer,
those provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated companies.
(v) EXPENSES. During the Employment Period, the Officer shall be
entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Officer in accordance with the most
favorable policies, practices, and procedures of the Company and
its affiliated companies in effect for the Officer at any time
during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Officer, as in effect generally at any
time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(vi) FRINGE BENEFITS. During the Employment Period, the Officer
shall be entitled to fringe benefits, including, without
limitation, in accordance with the most favorable plans, practices,
programs and policies of the Company and its affiliated companies
in effect for the Officer at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to
the Officer, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated
companies.
(vii) VACATION. During the Employment Period, the Officer shall
be entitled to paid vacation in accordance with the most favorable
plans, policies, programs and practices of the Company and its
affiliated companies as in effect for the Officer at any time
during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Officer, as in effect generally at any
time thereafter with respect to other peer executives of the
Company and its affiliated companies.
5. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Officer's employment shall terminate
automatically upon the Officer's death during the Employment Period. If the
Company determines in good faith that the Disability of the Officer has occurred
during the Employment Period (pursuant to the definition of Disability set forth
below), it may give to the Officer written notice in accordance with
Section 12(b) of this Agreement of its intention to terminate the Officer's
employment. In such event, the Officer's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the Officer
(the "Disability Effective Date"), provided that, within the 30 days after such
receipt, the Officer shall not have returned to full-time performance of the
Officer's duties. For purposes of this Agreement, "Disability" shall mean the
absence of the Officer from the Officer's duties with the Company on a full-time
basis for 180 consecutive business days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Officer or the
Officer's legal representative.
(b) CAUSE. The Company may terminate the Officer's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the Officer's gross violation of the terms of this Agreement,
if such violation has not been substantially cured within thirty
(30) days following written notice to the Officer from the Company
of such violation setting forth with specificity the nature of the
violation or, if cure cannot reasonably be effected within such
30-day period, if the Officer does not commence such cure within
such 30-day period and thereafter pursue such cure continuously and
with due diligence until cure has been effected; or
(ii) the Officer's willful dishonesty towards, fraud upon, felony
crime against, deliberate material injury or material bad faith
ction with respect to, or deliberate or attempted injury to the
Company.
(c) GOOD REASON; WINDOW PERIOD. The Officer's employment may be
terminated (i) during the Employment Period by the Officer for Good Reason or
(ii) during the Window Period by the Officer without any reason. For purposes
of this Agreement, "Window Period" shall mean the 30-day period immediately
following the Effective Date. For purposes of this Agreement, any termination
by the Officer during the Window Period shall be deemed a termination by the
Officer for Good Reason and, in addition, "Good Reason" shall mean:
(i) the assignment to the Officer by the Company following the
Effective Date of any duties inconsistent with, or a substantial
alteration in the nature or status of, the Officer's
responsibilities as in effect during the 120-day period prior to
the Effective Date, including a change in the Officer's title or
the level of supervisor to whom the Officer is required to report;
(ii) a failure by the Company to comply with any of the provisions
of Section 4(b) of this Agreement other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith
and which is remedied by the Company promptly after receipt of
notice thereof given by the Officer;
(iii) a relocation of the Company's principal offices to a
location outside a 00-xxxx xxxxxx xx Xxxxxx, Xxxxxxxx, or the
Officer's relocation to any place other than the offices of the
Company located in Denver, Colorado or within 30 miles of Denver,
Colorado, except for reasonably required travel by the Officer on
the Company's business to an extent
substantially consistent with the Officer's business travel
obligations immediately preceding the Effective Date;
(iv) any material breach by the Company of any provision of this
Agreement, if such material breach has not been cured within thirty
(30) days following written notice by the Officer to the Company of
such breach setting forth with specificity the nature of the breach;
(v) any failure by the Company to obtain the assumption and
performance of this Agreement by any successor (by merger,
consolidation or otherwise) or assign of the Company; or
(vi) the voluntary termination by Xxxxxxx X. Xxxxxx of his
employment as Chairman of the Company or the termination of his
employment as Chairman in the event of a Change of Control;
provided that such termination shall constitute Good Reason only
for a period of 120 days from the date of termination of Xx.
Xxxxxx'x employment as Chairman.
For purposes of this Section 5(c), any good faith determination of "Good Reason"
made by the Officer shall be conclusive.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by the Officer for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Officer's employment under the provision so indicated and (iii) if the Date
of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than 30
days after the giving of such notice). The failure by the Officer or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Officer or the Company, respectively, hereunder or preclude the Officer or
the Company, respectively, from asserting such fact or circumstance in enforcing
the Officer's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if the
Officer's employment is terminated by the Company for Cause, or by the Officer
for Good Reason, the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be, (ii) if the Officer's employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the Officer of such
termination, (iii) if the Officer's employment is terminated by reason of
Disability, the Date of Termination shall be the Disability Effective Date, and
(iv) if the Officer's employment is terminated by reason of his death, the Date
of Termination shall be the last day of the month during which his death occurs.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If,
during the Employment Period, the Company shall terminate the Officer's
employment other than for Cause or Disability or the Officer shall terminate
employment for Good Reason, the parties acknowledge that the Officer will
sustain actual damages, the amount of which is indefinite, uncertain and
difficult of exact ascertainment because of the uncertainties of successfully
relocating and seeking a comparable position. In order to avoid dispute as to
the amount of such damages and the mutual expense and inconvenience such dispute
would entail, the Company and the Officer have agreed hereby that the Company
shall pay to the Officer compensation as provided below. It is hereby agreed
that in the event of such termination by the Company, the Officer shall receive
such amounts as herein provided, not as a penalty, but as the Officer's agreed
compensation and sole damages for the termination of this Agreement, in lieu of
the Officer's proof of his actual damages on that account. If, during the
Employment Period, the Company shall terminate the Officer's employment other
than for Cause or Disability or the Officer shall terminate employment for Good
Reason, the Company shall pay to the Officer in a lump sum in cash within five
days after the Date of Termination the aggregate of the following amounts:
(i) the sum of (1) the Officer's Annual Base Salary through the
Date of Termination to the extent not theretofore paid, (2) the
product of (x) the higher of (I) the Recent Annual Bonus and (II)
the Annual Bonus paid or payable, including any bonus or portion
thereof which has been earned but deferred (and annualized for any
fiscal year consisting of less than 12 full months or during which
the Officer was employed for less than 12 full months), for the
most recently completed fiscal year during the Employment Period,
if any (such higher amount being referred to as the "Highest Annual
Bonus") and (y) a fraction, the numerator of which is the number of
days in the current fiscal year through the Date of Termination,
and the denominator of which is 365 and (3) any compensation
previously deferred by the Officer (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in each
case to the extent not theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) shall be hereinafter
referred to as the "Accrued Obligations"); and
(ii) the amount equal to the product of (1) two and (2) the sum of
(x) the Officer's Annual Base Salary and (y) the Highest Annual Bonus.
To the extent not theretofore paid or provided, the Company shall timely
pay or provide to the Officer any other amounts or benefits required to be paid
or provided or which the Officer is eligible to receive under any plan, program,
policy or practice or contract or agreement of the Company and its affiliated
companies (such other amounts and benefits shall be hereinafter referred to as
the "Other Benefits").
In addition, any options to purchase shares of the Company's common stock
shall immediately vest and become exercisable as of the Date of Termination and,
notwithstanding anything to the contrary in the Officer's option agreements with
the Company, the options shall be exercisable for a period of 12 months after
the Date of Termination (but in no event beyond the expiration date applicable
to such options). Notwithstanding anything to the contrary in the Officer's
restricted stock award agreements with the Company, any restrictions on
restricted stock grants shall also be eliminated.
(b) DEATH. If the Officer's employment is terminated by reason of
the Officer's death during the Employment Period, this Agreement shall terminate
without further obligations to the Officer's legal representatives under this
Agreement, other than for payment by the Company of Accrued Obligations and the
timely payment or provision of Other Benefits. Accrued Obligations shall be
paid to the Officer's estate or beneficiary, as applicable, in a lump sum in
cash within five days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section 6(b)
shall include, without limitation, and the Officer's estate and/or beneficiaries
shall be entitled to receive, benefits at least equal to the most favorable
benefits provided by the Company and affiliated companies to the estates and
beneficiaries of peer executives of the Company and such affiliated companies
under such plans, programs, practices and policies relating to death benefits,
if any, as in effect with respect to other peer executives and their
beneficiaries at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Officer's estate and/or the
Officer's beneficiaries, as in effect on the date of the Officer's death with
respect to other peer executives of the Company and its affiliated companies and
their beneficiaries.
(c) DISABILITY. If the Officer's employment is terminated by reason
of the Officer's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Officer, other than for payment by
the Company of Accrued Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to the Officer in a lump sum in
cash within five days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section 6(c)
shall include, and the Officer shall be entitled after the Disability Effective
Date to receive, disability and other benefits at least equal to the most
favorable of those generally provided by the Company and its affiliated
companies to disabled executives and/or their families in accordance with such
plans, programs, practices and policies relating to disability, if any, as in
effect generally with respect to other peer executives and their families at any
time during the 120-day period immediately preceding the Effective Date or, if
more favorable to the Officer and/or the Officer's family, as in effect at any
time thereafter generally with respect to other peer executives of the Company
and its affiliated companies and their families.
(d) CAUSE. If the Officer's employment shall be terminated for Cause
during the Employment Period, this Agreement shall terminate without further
obligations to the Officer other than the obligation to pay to the Officer
(x) his Annual Base Salary through the Date of Termination, (y) the amount of
any compensation previously deferred by the Officer and (z) Other Benefits, in
each case to the extent theretofore unpaid.
(e) OTHER THAN FOR GOOD REASON. If the Officer voluntarily
terminates employment during the Employment Period, excluding a termination for
Good Reason, this Agreement shall terminate without further obligations to the
Officer, other than for payment by the Company of Accrued Obligations and the
timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Officer in a lump sum in cash within five days
of the Date of Termination.
7. NON-EXCLUSIVITY OF RIGHTS. Except as provided in Sections 6(a)(ii),
6(b) and 6(c), nothing in this Agreement shall prevent or limit the Officer's
continuing or future participation in any plan, program, policy or practice
provided by the Company or any of its affiliated companies and for which the
Officer may qualify nor, subject to Section 12(f), shall anything herein limit
or otherwise affect such rights as the Officer may have under any contract or
agreement with the Company or any of its affiliated companies. Amounts that are
vested benefits or that the Officer is otherwise entitled to receive under any
plan, policy, practice or program of or any contract or agreement with the
Company or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
8. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Officer or others. In no event shall the Officer be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Officer under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Officer obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Officer may reasonably incur as a result of
any contest (regardless of the outcome thereof, except in the case of fees
incurred with respect to a claim brought in bad faith) by the Company, the
Officer or others of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance thereof (including
as a result of any contest by the Officer about the amount of any payment
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable federal rate provided for in Section 7872(f)(2)(A) of the
Internal Revenue Code of 1986, as amended (the "Code").
9. LIMITATION ON AMOUNT OF PAYMENT. Notwithstanding anything else in
this Agreement, solely in the event of a termination by the Company without
Cause or a termination by the Officer for Good Reason, the aggregate of the
amount of compensation paid to the Officer under this Agreement or otherwise,
but exclusive of any payments to the Officer by virtue of the Officer's exercise
of any right or payment of any kind under the Equity Incentive Plan upon a
Change in Control, shall not include any amount that the Company is prohibited
from deducting for federal income tax purposes by virtue of Section 280G of the
Code or any successor provision.
10. CONFIDENTIAL INFORMATION. The Officer shall not, during his
employment by the Company or at any time thereafter, directly or indirectly use,
divulge, furnish or make accessible to anyone other than the Company, its
directors or officers (otherwise than in the regular course of the business of
the Company), any knowledge or information regarding any confidential or secret
activities, prospects, technical data, analysis and interpretations, projects,
plans, reports, customer names or lists, financial or marketing information or
documentary material relating to the existing, planned or contemplated business
or activities of the Company. The Officer, upon leaving the employ of the
Company, shall not take with him or retain any books, records, data, reports,
letters, memoranda, notes or other writings or documents whatsoever, or copies
thereof, which reflect or deal with any secret, proprietary or confidential
information or material relating to the business or activities of the Company.
The obligations of the Officer under this Section 10 shall not apply to (i)
information which at the time of disclosure is readily available to the public,
(ii) information which is or becomes available to the general public other than
through acts or omissions attributable to the Officer, or (iii) information
obtained from a third party who is lawfully in possession of the same other than
through breach of a confidentiality or nonuse obligation
owed to the Company or others with respect to that information.
11. SUCCESSORS.
(a) This Agreement is personal to the Officer and, without the prior
written consent of the Company, shall not be assignable by the Officer otherwise
than by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Officer's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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 Companyas
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) NOTICES. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Officer:
__________________________
__________________________
__________________________
If to the Company:
Ultimate Electronics, Inc.
000-X Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer, President or Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) WITHHOLDINGS. The Company may withhold from any amounts payable
under this Agreement the minimum amounts of any such federal, state, local or
foreign taxes as shall be required to be withheld pursuant to any applicable law
or regulation.
(e) MODIFICATIONS. The Officer's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Officer or the Company may have
hereunder, including, without limitation, the right of the Officer to
terminate employment for Good Reason pursuant to Section 5(c)(i)-(v) of this
Agreement, shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
(f) ACKNOWLEDGMENT OF EMPLOYMENT AT WILL. The Officer and the
Company acknowledge that, except as may otherwise be provided under any other
written agreement between the Officer and the Company, the employment of the
Officer by the Company is "at will" and, subject to Section 1(a) hereof, prior
to the Effective Date, the Officer's employment and/or this Agreement may be
terminated by either the Officer or the Company at any time prior to the
Effective Date, in which case the Officer shall have no further rights under
this Agreement. From and after the Effective Date, this Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the Officer has hereunto set the Officer's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
(Officer)
ULTIMATE ELECTRONICS, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
