Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made as of July 6, 1999, among USCI, Inc., a Delaware
corporation with its principal office at 0000-X Xxxxx Xxxxxx Xxxx.,
Xxxxxxxx, Xxxxxxx 00000 (the "Company"), and XXX XXXXX, residing at 00
Xxxxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires that Executive be employed to serve
in a senior executive capacity with the Company, and Executive desires
to be so employed by the Company upon the terms and conditions herein
set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises, representations and covenants herein contained, the
parties hereto agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive
hereby accepts such employment, subject to the terms and conditions
herein set forth. Executive shall hold the office of Chief Executive
Officer of the Company, and such other office or offices of the Company
and any of its subsidiaries as the Board of Directors shall designate,
reporting to the Board of Directors of the Company, or such subsidiary
or subsidiaries, as applicable. The Company shall nominate Executive for
election as a director of the Company for all periods that Executive
holds the office of Chief Executive Officer of the Company.
2. TERM.
The initial term of employment under this Agreement
shall begin on the date hereof (the "Employment Date") and shall
continue for a period of five (5) years from that date, subject to prior
termination in accordance with the terms hereof. Thereafter, this
Agreement shall automatically be renewed for a two-year term, unless the
Company or the Executive shall give the other sixty (60) days prior
written notice of its or his intent not to renew this Agreement.
3. PLACE OF PERFORMANCE
In connection with the Executive's employment by the Company,
the Executive shall be based at the Company's principal office in
Norcross, Georgia. The Company understands and agrees, however, that
Executive will, for at least the first six months following the
Employment Date, maintain his principal residence in Ridgefield,
Connecticut and, accordingly, Executive shall be entitled to the
benefits set forth in Section 9 hereof.
4. COMPENSATION.
(a) Base Salary. During the term of this Agreement,
Executive shall receive an annual salary at the rate of $275,000 in the
first year of the term, $295,000 in the second year of the term,
$315,000 in the third year of the term, $335,00 in the fourth year of
the term and $355,000 in the fifth year of the term. Executive's
compensation shall be payable in equal installments in accordance with
the Company's normal salary payment policies and shall be subject to
such payroll deductions as are required by law or applicable employee
benefit programs.
(b) Bonus. Executive shall receive a guaranteed
$75,000 cash bonus at the end of the first year of employment, payable
within thirty (30) days following the end of the first year of
employment.
(c) Incentive Compensation. Executive shall receive
incentive compensation ("Incentive Compensation") for each fiscal year
of the Company during Executive's employment equal to five percent (5%)
of the first $4,000,000 of EBITDA (earnings before depreciation,
interest, amortization and taxes) of the Company and two percent (2%) of
EBITDA in excess of $4,000,000 for that fiscal year. Since the fiscal
year of the Company does not correspond to the employment year for the
Executive, Incentive Compensation for 1999 will be prorated. In the
event that Executive and the Company cannot agree, in good faith, on the
computation of EBITDA, that determination shall be made by an
independent public accounting firm which is not then performing services
for either the Executive or the Company (or any of its subsidiaries),
and which is selected by Executive and approved by the Company (whose
approval shall not be unreasonably withheld.) Such determination shall
be made in accordance with GAAP applied on a consistent basis and shall
be final and binding upon the parties.
5. EXPENSES.
The Company shall pay or reimburse Executive, upon
presentment of suitable vouchers, for all reasonable business and travel
expenses which may be incurred or paid by Executive in connection with
his employment hereunder, with such frequency as the Executive shall
determine. Executive shall comply with such restrictions and shall keep
such records as the Company may deem necessary to meet the requirements
of the Internal Revenue Code of 1986, as amended from time to time, and
regulations promulgated thereunder.
6. AUTOMOBILE.
The Company shall lease, during the term of Executive's
employment hereunder, for Executive an automobile with a retail purchase
price not to exceed $25,000 and shall replace such automobile at least
every three (3) years during Executive's term of employment.
7. INSURANCE AND OTHER BENEFITS.
Executive shall be entitled to such vacations and to
participate in and receive any other benefits customarily provided by
the Company to its senior management personnel (including any profit
sharing, pension, health insurance, dental coverage, key man life
insurance, AD&D and short and long-term disability in accordance with
the terms of such plans), and including stock options and/or stock
purchase plans, all as determined from time to time by the Board of
Directors of the Company. The Company shall maintain director and
officer ("D & O") insurance which will inure to Executive's benefit, in
such amounts and with such scope of coverage as are customary in such
circumstances for public corporations in the Company's industry.
8. STOCK OPTIONS.
(a) Non-Qualified Stock Options. The Company and
Executive will enter into an Non-Qualified Stock Option Agreement dated
the Employment Date, providing for the grant to Executive of a stock
option to purchase .5% of the outstanding shares of the Company's Common
Stock on a fully-diluted basis, at an exercise price per share equal to
the par value of the Company's Common Stock. Executive shall receive
non-qualified stock options to purchase an additional .5% of the
outstanding shares of the Company's Common Stock on a fully-diluted
basis on each of the second and third anniversaries of the Employment
Date, at an exercise price per share equal to the par value of the
Company's Common Stock. Each of the foregoing options shall be ten (10)
year stock options, shall vest one hundred percent (100%) on the date of
grant and shall terminate no earlier than one (1) year after the date of
Executive's expiration or termination of employment or service;
provided, however, that if Executive's employment is terminated for
cause, as defined in Section 11(c) hereof, all such options shall
terminate if not exercised within thirty (30) days following the date of
employment termination. All Common Stock issuable upon exercise of the
options shall be registered on a registration statement filed and
declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
(b) Incentive Stock Options. The Company and
Executive will enter into an Incentive Stock Option Agreement dated the
Employment Date, providing for the grant to Executive of a stock option
to purchase .5% of the outstanding shares of the Company's Common Stock
on a fully-diluted basis, at an exercise price per share equal to the
fair market value of the Common Stock on the date of grant. Executive
shall receive incentive stock options to purchase an additional .5% of
the outstanding shares of the Company's Common Stock on a fully-diluted
basis on each of the second, third and fourth anniversaries of the
Employment Date, at an exercise price per share equal to the fair market
value of the Company's Common Stock on the date of grant. Each of the
foregoing options shall be ten (10) year options, shall vest one hundred
percent (100%) on the date of grant and shall terminate no earlier than
one (1) year after the date of Executive's termination of employment or
service; provided, however, that if Executive's employment is terminated
for cause, as defined in Section 11(c) hereof, all such options shall
terminate if not exercised within thirty (30) days following the date of
employment termination. All Common Stock issuable upon exercise of the
options shall be registered on a registration statement filed and
declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
(c) Additional Stock Options. Executive shall
receive stock options to purchase 1,500,000 shares of the Company's
Common Stock at an exercise price per share of $1.50 in the event (i)
the stock price of the Company's Common Stock is listed on any stock
exchange or quoted on the Nasdaq Stock Market or on the pink sheets and
(ii) the closing price or closing bid price per share is $1.50 or more
for twenty-five (25) consecutive trading days. Such options shall be
incentive stock options, if permissible by law, shall have a term of ten
(10) years, shall vest one hundred percent (100%) on the date of the
grant and shall terminate no earlier than one (1) year after the date of
Executive's expiration or termination of employment or service. All
Common Stock issuable upon exercise of these options shall be registered
on a registration statement filed and declared effective by the
Securities and Exchange Commission under the Securities Act of 1933, as
amended.
9. RELOCATION SUPPORT.
(a) Because the Company is considering moving its corporate
headquarters from Norcross, Georgia and Executive currently resides in
Ridgefield, Connecticut, Executive shall initially commute from
Connecticut to corporate headquarters on a weekly basis. During such
period, the Company shall reimburse Executive for all reasonable
transportation and temporary living expenses incurred. In the event that
the Company determines (i) to move its corporate headquarters during the
term of this Agreement such that Executive is still required to commute
to another state, or (ii) to continue maintaining its headquarters in
Norcross, Georgia, the Company shall continue to reimburse Executive for
all such reasonable expenses; provided, however, that the Company shall
reimburse Executive for temporary living expenses only for up to six (6)
months from the date of such determination.
(b) Executive shall receive reimbursement for relocation,
to the Atlanta, Georgia area, or where the corporate headquarters may be
relocated, if necessary, including (i) reasonable moving expenses, and
(ii) reasonable transportation expenses for Executive and his family in
connection with the relocation described in 9(a). All reimbursements for
relocation will be based upon actual expenses incurred, and shall be
paid promptly following Executive's delivering receipts thereof to the
Company. Any portion of such relocation expense reimbursement that is
taxable to Executive will be "grossed up" to cover all federal and state
taxes payable by Executive.
10. DUTIES.
(a) Executive shall perform such duties and functions as the
Board of Directors of the Company shall from time to time determine and
Executive shall comply in the performance of his duties with the
policies of, and be subject to, the reasonable direction of the Board of
Directors.
(b) Executive agrees to devote substantially all his working
time, attention and energies to the performance of the business of the
Company; Executive shall not, directly or indirectly, alone or as a
member of any partnership or other organization, or as an officer,
director or employee of any other corporation, partnership or other
organization, be actively engaged in or concerned with any other duties
or pursuits which interfere with the performance of his duties
hereunder, or which, even if non-interfering, may be inimical, or
contrary, to the best interests of the Company, except those duties or
pursuits specifically authorized by the Board of Directors.
(c) The Company acknowledges that Executive is currently a
director of International Consulting Resources LLC and American
Entertainment Network, LLC, and consents to the continuation by
Executive as a director of these companies. However, Executive will
obtain Board of Directors approval before accepting any new director
positions. This provision shall not be construed to prevent Executive
from investing or trading in non-conflicting investments for his own
account, including real estate, stocks, bonds, securities, commodities
or other forms of investments.
11. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION.
(a) Executive's employment hereunder may be
terminated at any time upon written notice from the Company to
Executive,
(i) upon the determination by the Board of Directors
that Executive's performance of his duties has not been fully
satisfactory for any reason, which would not constitute "cause" (as
hereinafter defined), upon sixty (60) days' prior written notice to
Executive;
(ii) upon the determination by the Board of
Directors of the Company that there is cause for such
termination, upon ten (10) days' prior written notice to Executive;
(iii) the death of the Executive; or
(iv) the "disability" of Executive (as hereinafter
defined).
(b) For the purposes of this Agreement, the term
"disability" shall mean the inability of Executive, due to illness,
accident or any other physical or mental incapacity, to perform his
duties in a normal manner for a period of three (3) consecutive months
or for a total of six (6) months (whether or not consecutive) in any
twelve (12) month period during the term of this Agreement as reasonably
determined by the Board of Directors of the Company after examination of
Executive by an independent physician reasonably acceptable to
Executive.
(c) For the purposes hereof, the term "cause" shall
mean and be limited to: (i) Executive's conviction (which, through lapse
of time or otherwise, is not subject to appeal) of any crime or offense
involving money or other property of the Company or which constitutes a
felony in the jurisdiction involved; (ii) Executive's willful or
purposeful misconduct that is materially damaging or detrimental to the
Company; (iii) Executive's continued willful failure or refusal without
proper cause to perform his duties under this Agreement; provided that
Executive shall have first received written notice from the Board of
Directors of the Company stating with specificity the nature of such
failure and refusal and affording Executive an opportunity to correct
the acts or omissions complained of; (iv) any attempt by Executive to
secure any unauthorized personal profit in connection with the business
of the Company; and (v) the engaging by Executive in any business other
than the business of the Company which interferes with the performance
of his duties hereunder.
(d) Executive's employment hereunder may be
terminated by Executive at any time upon sixty (60) days' prior written
notice to the Company. Executive's employment hereunder may be
terminated by Executive for "Good Reason" upon ten (10) days' prior
written notice to the Company. For purposes hereof, the term "Good
Reason" shall mean the failure by the Company to comply with any
material provision of this Agreement which has not been cured within ten
(10) days after notice of such noncompliance has been given by the
Executive to the Company.
(e) If Executive shall die during the term of his
employment hereunder, this Agreement shall terminate immediately. In
such event, the estate of Executive shall thereupon be entitled to
receive such portion of Executive's annual salary and benefits as has
been accrued but remains unpaid through the end of the month of
Executive's death, plus any reimbursement of expenses as provided herein
and vested amounts to which he is entitled under any compensation or
employee benefit plan of the Company, in accordance with the terms and
conditions of each such plan, plus bonus, if any, and Incentive
Compensation in respect of the fiscal year of Executive's death on a pro
rata basis through the date of death.
(f) Upon Executive's "disability", the Company shall
have the right to terminate Executive's employment. Notwithstanding any
inability to perform his duties, Executive shall be entitled to receive
his compensation (including bonus, if any, and Incentive Compensation on
a pro rata basis through the termination date), plus any reimbursement
of expenses as provided herein and vested amounts to which he is
entitled under any compensation or employment benefit plan of the
Company, in accordance with the terms and conditions of each such plan,
until the termination of his employment for disability. Any termination
pursuant to this subsection (f) shall be effective on the date thirty
(30) days after which Executive shall have received written notice of
the Company's rightful election to terminate.
(g) If the Executive's employment shall be
terminated by the Company for cause or by Executive for reasons other
than Good Reason, the Company shall pay the Executive his salary and
earned but unpaid bonus and Incentive Compensation through the date of
termination, plus any reimbursement of expenses as provided herein and
vested amounts to which he is entitled under any compensation or
employee benefit plan of the Company, in accordance with the terms and
conditions of each such plan.
(h) Notwithstanding any provision to the contrary
contained herein, in the event that Executive's employment is terminated
by the Company at any time for any reason other than cause, disability
or death, or in the event Executive's employment is terminated by
Executive for Good Reason, the Company shall pay to Executive,
Executive's earned but unpaid salary and Incentive Compensation prorated
up to and including the date of termination, plus any reimbursement of
expenses as provided herein and any vested amounts to which he is
entitled under any compensation or employee benefit plan of the Company,
in accordance with the terms and conditions of each such plan.
Executive shall also receive his guaranteed $75,000 bonus if such
termination on these grounds occurs prior to the end of the first 12
months of the term of employment and shall receive the stock options
specified in Section 8(c) hereof, whether or not the triggering event
for such grant has occurred, except to the extent previously granted.
In addition, Executive shall also receive a lump sum cash severance
payment of $600,000, payable within thirty (30) days following
termination of his employment.
(i) Unless otherwise specified herein, the timing of
any payments to be made to Executive upon an expiration or termination
of his employment shall be within thirty (30) days after the applicable
termination date, except that any Incentive Compensation to be paid
shall be paid within thirty (30) days after the Company's fiscal year
end in respect of the fiscal year in which Executive's employment
expires or is terminated.
12. CHANGE IN CONTROL.
(a) Definition. A "Change in Control" shall mean
the occurrence of any of the following events:
(i) The Company is merged with or consolidated with
another corporation in a transaction in which (x) the Company is not the
surviving corporation, and (y) the Company's stockholders immediately
prior to such transaction do not have the same proportionate ownership
of the outstanding voting securities of the surviving corporation
immediately following the transaction; or
(ii) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or
(iii) the stockholders of the Company shall approve
any plan or proposal for liquidation or dissolution of the Company; or
(iv) Any person or entity or affiliated group of
persons or entities becomes the holder of more than 51% of the Company's
outstanding shares of Common Stock.
(b) Payments. If a Change in Control occurs during
the term of the Executive's employment pursuant to this Agreement then,
if Executive resigns for any reason within ninety (90) days after the
Change in Control, the Company shall (i) continue existing health
insurance, dental coverage, key man life insurance, AD&D and long-term
disability coverage in effect for Executive at the time of his
resignation for a period of the lesser of one (1) year or until covered
by another plan, and (ii) continue the Executive's salary for a one (1)
year period; provided, however, that during the applicable period in
which benefits are being paid by the Company, Executive agrees to
maintain a consulting relationship with the Company which shall not
interfere with any other obligations of the Executive.
13. REPRESENTATIONS AND AGREEMENTS OF EXECUTIVE.
(a) Executive represents and warrants that he is free to
enter into this Agreement and to perform the duties required hereunder,
and that there are no employment contracts or understandings,
restrictive covenants or other restrictions, whether written or oral,
preventing the performance of his duties hereunder.
(b) Executive agrees, if requested, to submit to a
medical examination and to cooperate and supply such other information
and documents as may be required by any insurance company in connection
with he Company's obtaining life insurance on the life of Executive, and
any other type of insurance or fringe benefit as the Company shall
determine from time to time to obtain.
14. NON-COMPETITION.
(a) Executive agrees that during his employment by the
Company and, in the event of a termination by the Company for cause, for
a period of one (1) year following termination of Executive's employment
hereunder (the "Non-Competitive Period"), Executive shall not, directly
or indirectly, as owner, partner, joint venturer, stockholder, employee,
broker, agent, principal, trustee, corporate officer, director,
licensor, or in any capacity whatsoever engage in, become financially
interested in, be employed by, render any consultation or business
advice with respect to, or have any connection with, any business which
is competitive with the business of the Company at the time of
Executive's termination, and which is doing business in any geographic
area where, at the time of such termination, the business of the Company
is being conducted; provided, however, that Executive may own any
securities of any corporation which is engaged in such business and is
publicly owned and traded but in an amount not to exceed at any one time
two percent (2%) of any class of stock or securities of such
corporation.
(b) If any portion of the restrictions set forth in this
Section 14 should, for any reason whatsoever, be declared invalid by a
court of competent jurisdiction, the validity or enforceability of the
remainder of such restrictions shall not thereby be adversely affected.
(c) Executive acknowledges that the Company conducts
business on a world-wide basis, that its sales and marketing prospects
are for continued expansion into world markets and that, therefore, the
territorial and time limitations set forth in this Section 14 are
reasonable and properly required for the adequate protection of the
business of the Company. In the event any such territorial or time
limitation is deemed to be unreasonable by a court of competent
jurisdiction, Executive agrees to the reduction of the territorial or
time limitation to the area or period which such court deems reasonable.
15. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Executive acknowledges that his employment by the
Company will, throughout the term of this Agreement, bring him in
contact with proprietary or confidential information relating to the
business or interests of the Company not readily available to the
public, ("Confidential Information"). In recognition of the foregoing,
Executive covenants and agrees that, unless specifically authorized to
do so by the Company, during the term of this Agreement and for a period
of three (3) years thereafter, he will not, directly or indirectly,
disclose or make use in any manner or permit to be known, any
Confidential Information other than in performing the services required
of him under this Agreement, except as required by court order, law or
subpoena, or other legal compulsion to disclose. The provisions of this
Section 15(a) shall not apply to any Confidential Information which is
publicly known under circumstances involving no breach of this
Agreement.
(b) Upon the expiration or termination of Executive's
employment with the Company, all documents, records, reports, writings
and other similar documents containing Confidential Information,
including copies thereof, then in Executive's possession or control
shall be returned and left with the Company.
16. RIGHT TO INJUNCTION.
Executive agrees that if he breaches, or threatens to
commit a breach of, any of the provisions of Sections 14 or 15 hereof,
then, in addition to all other rights and remedies which the Company may
have under the terms hereof and pursuant to all applicable law, the
Company shall have the right to seek equitable relief in the form of a
temporary restraining order and permanent injunction against Executive's
violation of the terms of Sections 14 or 15 hereof.
17. AMENDMENT OR ALTERATION.
No amendment or alteration of the terms of this Agreement shall
be valid unless made in writing and signed by both of the parties
hereto.
18. LETTER OF CREDIT.
In order to partially secure the full, complete and
timely payment and performance of the Company's obligations under this
Agreement, as amended from time to time, the Company shall deliver to
Executive, within ten (10) business days following the execution of this
Agreement, an irrevocable letter of credit in form acceptable to
Executive and Executive's counsel, which shall be issued in favor of
Executive by a major commercial center bank with a branch or office in
either Georgia or Connecticut, in the aggregate principal amount (and at
no time not less than) $300,000 for a term of the lesser of (i) five (5)
years, or (ii) such time as the Company has positive profits (earnings
before taxes) for six (6) consecutive months, which letter of credit can
be drawn on by Executive upon demand, accompanied by a certificate of
Executive certifying that the Executive has made a demand for payment to
the Company under this Agreement and such demand has not been honored .
19. ARBITRATION AND CONSENT TO JURISDICTION
(a) In the event a dispute, claim or controversy shall arise
between the parties with respect to any provision of this Agreement, or
the interpretation or performance hereof or thereof, and such is
declared by written notice from one party to the other, the parties
agree to negotiate in good faith toward resolution of the dispute. If
such dispute cannot be resolved within a period of thirty (30) days
after such notice is given, either party may submit the dispute to
arbitration. Such dispute shall then be settled by arbitration in the
City of New York, New York, under the laws of the State of New York, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). In rendering its decision, the
arbitration tribunal shall apply the substantive laws of the State of
New York, apply the rules of evidence of the State of New York and
interpret this Agreement in accordance with its terms. The determination
of the arbitration tribunal shall be conclusive and binding upon the
parties hereto. The arbitration will be decided by a panel of three (3)
arbitrators, mutually acceptable to both parties, who will preside and
decide the controversy or claim unless the parties hereto agree in
writing to the contrary. Should the parties fail to agree on three (3)
mutually acceptable arbitrators, then the parties agree to accept those
mutually acceptable arbitrator(s) and such additional arbitrators
appointed by the AAA as may be necessary to complete an arbitration
tribunal of three (3)persons.
(i) The award of the arbitration tribunal may be
alternatively or cumulatively, for monetary damages, an order requiring
the performance of non-monetary obligations (including specific
performance) or any other appropriate order or remedy. The arbitrators
may issue interim awards and order any provisions or measures which
should be taken to preserve the respective rights of either party.
(ii) Any award rendered by the arbitration
tribunal shall be in writing, setting forth the reasons for the award,
and shall be a final disposition on the merits. Judgment upon the award
may be rendered in any court having jurisdiction, or application may be
made to any such court having jurisdiction for a judicial acceptance of
the award and an order of enforcement, as the case may be. The parties
waive any right they may enjoy in any Federal or state courts for relief
from the provisions of this clause or from any decision of the
arbitrators made prior to the award.
(iii) Each party shall bear their own costs and
expenses of the arbitration, and the parties shall share equally the
cost of the arbitrators; provided that any party instituting a claim or
providing a defense under this Section 19 which the tribunal shall
declare to be frivolous shall pay all costs and expenses, including
attorney's fees and costs, incurred with such arbitration.
(iv) The arbitration procedures in Section 19(a)
shall be the exclusive remedy available to the parties hereunder to
resolve any dispute, claim or controversy arising hereunder, except as
provided in Section 19(b), below.
(b) Notwithstanding anything to the contrary
contained in paragraph (a) above, each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the Supreme Court of the State
of New York, New York County, and to the exclusive jurisdiction of the
United States District Court for the Southern District of New York, only
for the purposes of (i) obtaining relief not within the jurisdiction or
powers of the arbitration tribunal, in connection with any suit, action
or other proceeding brought by any other party hereto, or any of their
respective heirs, successors or assigns as applicable, arising out of or
related to this Agreement, or (ii) the enforcement of the arbitration
tribunal's determination as provided in paragraph (a) above; and agrees
not to assert by way of motion, as a defense or otherwise, in any such
suit, action or proceeding, any claim that such party is not subject to
the jurisdiction of the above-named courts, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement may not be
enforced in or by such courts. Executive and the Company hereby agree
that all actions and proceedings permitted to be instituted hereunder by
Executive or the Company, and their heirs, successors or assigns in a
forum other than arbitration arising out of or related to this Agreement
or the transactions contemplated hereby shall be commenced only in the
courts having a situs in New York County.
20. SEVERABILITY.
The holding of any provision of this Agreement to be
invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Agreement, which shall remain in full
force and effect.
21. NOTICES.
Any notices required or permitted to be given hereunder
shall be sufficient if in writing, and if delivered by hand, or sent by
certified mail, return receipt requested, to the addresses set forth
above or such other address as either party may from time to time
designate in writing to the other, and shall be deemed given as of the
date of the delivery or mailing.
22. WAIVER OR BREACH.
It is agreed that a waiver by either party of a breach
of any provision of this Agreement shall not operate, or be construed,
as a waiver of any subsequent breach by that same party.
23. ENTIRE AGREEMENT AND BINDING EFFECT.
This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and shall be binding
upon and inure to the benefit of the parties hereto and their respective
legal representatives, heirs, distributors, successors and assigns.
Notwithstanding the foregoing, all prior agreements, if any, between
Executive and the Company relating to the confidentiality of
information, trade secrets and patents shall not be affected by this
Agreement.
24. SURVIVAL.
The expiration or termination of Executive's employment
hereunder shall not affect the enforceability of Sections 5, 8, 9, 11,
12, 14, 15, 16, 18, 19, 21, 23 and 24 hereof.
25. FURTHER ASSURANCES.
The parties agree to execute and deliver all such
further documents, agreements and instruments and take such other and
further action as may be necessary or appropriate to carry out the
purposes and intent of this Agreement.
26. HEADINGS.
The section headings appearing in this Agreement are for
the purposes of easy reference and shall not be considered a part of
this Agreement or in any way modify, demand or affect its provisions.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date and year first above written.
USCI, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
EXECUTIVE:
/s/ Xxx Xxxxx
