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EXHIBIT 10.1
CHANGE-IN-CONTROL AGREEMENT
AGREEMENT, made and entered into as of the _____ day of _________, 2000
(the "Effective Date") by and between U.S. Interactive, Inc., a Delaware
corporation (the "Company"), and _______________________ (the "Executive").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Executive is a key employee of the Company; and
WHEREAS, the Company desires to provide certain protection to Executive
in the event of a change in control of the Company in order to induce Executive
to remain in the employ of the Company notwithstanding any risks and
uncertainties created by such a change in control;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive agree as follows:
1. TERM
This Agreement shall become effective upon the date hereof and shall
terminate on the tenth anniversary of the date hereof (the "Term"); provided
however, if a Change-in-Control occurs during the Term and if Executive receives
any required amounts referenced in section 2(c), the Term shall expire on the
day immediately following the first anniversary of the Termination Date (as
defined in Section 2(a).
2. TERMINATION OF EXECUTIVE'S EMPLOYMENT PRIOR TO OR FOLLOWING A
CHANGE-IN-CONTROL
(a) If the Executive's employment is terminated by the Company or its
successor without Cause (as hereinafter defined), or the Executive terminates
his employment with the Company or its successor for Good Reason (as hereinafter
defined), and the date of such termination (hereinafter the "Termination Date")
occurs within the "Measuring Period" (as defined in the next sentence), the
Executive shall be entitled to receive a Change-in-Control Payment (as
hereinafter defined) as herein provided. The term "Measuring Period" means the
period of time (i) beginning the earlier of (A) the date a definitive agreement
contemplating a Change-in-Control is executed by the Company (and such agreement
is not terminated prior to the Termination Date), or (B) a Change-in-Control
occurs, and (ii) ending on the date one year following a Change-in-Control.
(b) Notwithstanding the foregoing, the Executive shall not be entitled
to receive the Change-in-Control Payment if any of the Circumstances of
Ineligibility (as hereinafter defined) apply to the Executive.
(c) "Change-in-Control Payment" means the sum of (x) the Executive's
annual base salary at the Termination Date (or, in the case of a termination of
employment for Good Reason based on a reduction of the Executive's annual base
salary, the annual base salary in effect immediately prior to such reduction),
plus (y) if the Company exercises its option to require the Executive to comply
with Section 7(a) of this Agreement, the Executive's target bonus in effect for
the year in which the Executive's employment is terminated or the year in which
the Change-in-Control occurs, whichever target bonus is greater, plus (z)
compensation for all accrued and unused vacation and personal time.
(d) "Change-in-Control" means that any of the following has occurred:
(i) any person or other entity (other than any Subsidiary,
defined for purposes of this Agreement as any entity in which the
Company controls more than 50% of the voting interests, or other than
any employee benefit plan sponsored the Company or any of its
Subsidiaries) including any person as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"),
becomes the beneficial owner, as defined in Rule 13d-3 under the
Exchange Act, directly or indirectly, of at least forty percent (40%)of
the total combined voting power of all classes of capital stock of the
Company normally entitled to vote for the election of directors of the
Company (the "Voting Stock");
(ii) the stockholders of the Company approve the sale of all
or substantially all of the property or assets of the Company and such
sale occurs;
(iii) the stockholders of the Company approve a consolidation
or merger of the Company with another corporation (other than with any
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of the Company's subsidiaries), the consummation of which would result
in the stockholders of the Company immediately before the occurrence of
the consolidation or merger owning, in the aggregate, 50% or less of
the Voting Stock of the surviving entity, and such consolidation or
merger occurs; or
(iv) a change in the Company's Board of Directors (the
"Board")occurs with the result that the members of the Board on the
Effective Date (the "Incumbent Directors") no longer constitute a
majority of such Board, provided that any person becoming a director
(other than a director whose initial assumption of office is in
connection with an actual or threatened election contest or the
settlement thereof including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose election or
nomination for election was supported by two-thirds (2/3) of the then
Incumbent Directors shall be considered an Incumbent Director for
purposes hereof.
(e) "Cause" means, and shall be subject to the procedures set forth
herein:
(i) Executive's material breach of any employment agreement
with the Company or any Subsidiary which breach, if capable of cure, is
not cured fully within thirty (30) days after written notice from the
Chief Executive Officer or the Board to the Executive identifying such
breach, provided, that such thirty (30) days period shall be extended
to sixty (60) days if such breach is not reasonably susceptible to cure
within thirty (30) days and the Executive shall have commenced to cure
within such thirty (30) day period and is then proceeding with due
diligence to cure such breach;
(ii) Conviction of the Executive for (x) any crime
constituting a felony in the jurisdiction in which committed, (y) any
crime involving moral turpitude (whether or not a felony), or (z) any
criminal act against the Company or any Subsidiary involving dishonesty
whether or not a felony, or any willful misconduct intended to injure
the Company or any Subsidiary;
(iii) Substance abuse (including drunkenness) by the Executive
which is repeated after written notice from the Board to the Executive
identifying such abuse;
(iv) The failure or the refusal of the Executive to follow
lawful and proper directives of the Board or Chief Executive Officer
which is not corrected within thirty (30) days after written notice
from the Board or Chief Executive Officer to the Executive identifying
such failure or refusal;
(v) willful malfeasance or gross misconduct by the Executive
which discredits or damages the Company or any Subsidiary;
(vi) conviction of the Executive for a violation of the
federal securities laws; or
(vii) cause as defined in any employment agreement between the
Company or any Subsidiary, and Executive, subject to any right to cure
in such employment agreement.
(f) "Good Reason" means the occurrence of any of the following without
the prior written consent of the Executive:
(i) removal from the most senior position held by the
Executive with respect to the Company on the 181st day prior to the
Change-in-Control or any senior position that the Executive
subsequently achieves (alternatively, the "Measuring Position");
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(ii) the assignment of duties or responsibilities materially
inconsistent with those customarily associated with the Measuring
Position, or any other action by the Company or a successor that
results in a diminution of the Executive's position, authority, duties
or responsibilities compared to the Measuring Position, other than an
isolated action that is not taken in bad faith and is remedied by the
Company or a successor promptly after receipt of written notice thereof
from the Executive. For purposes of this Section (f)(ii), if the
Change-in-Control results in the Executive being in the same position
as prior to the Change-in-Control but such position is in a subsidiary
of another company or entity, such position shall be deemed to be a
diminution of the Executive's position, authority and duties and
responsibilities;
(iii) a change in the reporting responsibilities as compared
to the Measuring Position such that the person to whom the Executive
reports after the Change-in-Control does not have the same position and
responsibilities in the Company or its successor as the person to whom
the Executive reported prior to the Change-in-Control;
(iv) reduction in the Executive's annual base, any portion of
the Executive's target bonus, or a any other material benefit provided
to the Executive by the Company at the time of the Change-in-Control;
(v) the relocation of the Executive's principal of employment
to a location more than thirty (30) miles from the Executive's
principal place of employment on the 181st day prior to the
Change-in-Control (unless such relocation does not increase the
Executive's commute by more than twenty (20) miles), except for
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required travel on the Company's business to an extent substantially
consistent with the Executive's business travel obligations as of such
date; or
(vi) the failure by the Company to obtain an agreement from
any successor to assume and agree to perform this Agreement unless such
assumption occurs as a matter of law.
(g) "Circumstances of Ineligibility" means any one of the following
circumstances:
(i) DEATH, DISABILITY OR VOLUNTARY TERMINATION. If the
Executive's employment with the Company or its successor is terminated
due to death or Disability (defined as the inability or incapacity of
the Executive, due to any medically determined physical or mental
impairment, to perform his duties and responsibilities for the Company
for a total of one hundred eighty (180) days), or if the Executive
elects to voluntarily terminate his employment, including a termination
due to retirement, with the Company or its successor, the Executive
shall not be eligible to receive the Change-in-Control Payment;
provided however, termination of employment by the Executive for Good
Reason shall not constitute a Circumstance of Ineligibility.
(ii) TERMINATION FOR CAUSE. If the Executive's employment with
the Company or a successor is terminated for Cause at any time
preceding or following a Change-in-Control, the Executive shall not be
eligible to receive the benefits under this Agreement, including the
Change-in-Control Payment.
3. TIME OF PAYMENT OF CHANGE-IN-CONTROL PAYMENT
Any Change-in-Control Payment to which the Executive is entitled under
Section 2 above (excluding any payment due under Section 2(c)(y)) shall be paid
to the Executive in cash (subject to appropriate withholding) in a lump sum
within 30 days following the Termination Date. Any payment due under Section
2(c)(y) shall be paid to the Executive in cash (subject to appropriate
withholding) on the first day of each month in twelve (12) equal monthly
installments commencing on the first day of the first month after the
Termination Date.
4. VESTING OF STOCK AWARDS
(a) Upon the occurrence of a Change-in-Control, one-third (1/3) of all
stock options, warrants, rights, and other Company stock-related awards now or
hereafter granted to the Executive by the Company not then vested and
exercisable (collectively, "Stock Awards")(including Stock Awards which will
have vesting and exercisability accelerated as a result of an event within the
definition of Change-in-Control pursuant to another agreement or grant then in
existence), will become immediately vested and exercisable, and non-forfeitable,
and all restrictions (except for restrictions required by law, if any) thereon
shall lapse, all performance goals, if any, associated therewith shall be deemed
met in full, and the Executive shall be entitled to exercise any and all such
Stock Awards in accordance with the terms of the documentation pursuant to which
such Stock Awards were granted (as such Stock Awards are amended by this Section
4.) For purposes of determining which Stock Awards shall have vesting and
exercisability accelerated, one-third (1/3) of each grant of Stock Awards
(rounded up to the nearest whole number) shall be deemed to be vested and
exercisable and the remaining two-thirds (2/3) of the Stock Awards in each grant
shall continue to have the vesting and other requirements as set forth in such
grant. In addition, to the extent the Executive is entitled to acceleration of
vesting and/or exercisability with respect to a portion of such Executive's
total aggregate Stock Awards pursuant to a separate agreement or grant of a
Stock Award, in order for the Executive to receive the full benefit of this
Agreement and the other agreement or grant, such Executive shall be entitled to
such other acceleration plus the acceleration of one-third (1/3) of all Stock
Awards as set forth above, with the amount of Stock Awards equal to one-third
(1/3) of the Stock Awards subject to such other acceleration to be allocated
equally among those Stock Awards not fully vested and exercisable after
application of this section 4(a).
(b) Upon the occurrence of a Change-in-Control, and if Executive is
entitled to a Change-in-Control Payment, upon the Termination Date, all Stock
Awards shall become fully vested and exercisable, and non-forfeitable, all
restrictions (except for restrictions required by law, if any) thereon shall
lapse, all performance goals, if any, associated therewith shall be deemed met
in full, and the Executive shall be entitled to exercise any or all such Stock
Awards in accordance with the terms of the documentation pursuant to which such
Stock Awards were granted (as such Stock Awards are amended by this Section 4).
Upon the occurrence of a Change-in-Control, and if Executive is entitled to a
Change-in-Control Payment, upon the Termination Date, regardless of the
expiration date of any such Stock Award and all other stock options, warrants,
rights, and other Company stock-related awards now or hereafter granted to the
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Executive by the Company as set forth in any grant, plan, or other agreement,
the expiration date of all of Executive's Stock Awards and all other stock
options, warrants, rights, and other Company stock-related awards now or
hereafter granted to the Executive by the Company which are then, or become,
vested and exercisable, shall be extended to the maximum period permitted for
the existence (without regard to termination of employment) of such Stock
Awards, stock options, warrants, rights, and other Company stock-related awards
under the applicable plan, grant, or agreement, and the Executive shall be
entitled to exercise such Stock Awards, stock options, warrants, rights, and
other Company stock-related awards up to such maximum period. If Executive is
entitled to a Change-in-Control Payment, to the extent any Stock Award, and any
other stock option, warrant, right, and other Company stock-related award now or
hereafter granted to the Executive by the Company which are then vested and
exercisable (either under a grant, any plan, or otherwise)(including those which
become vested and exercisable as a result of this Section 4), requires the
Executive to take some action prior to termination of employment (example:
exercise of options) and the expiration date can not be extended as set forth in
the immediately preceding sentence as an express matter of law, in order to
realize the benefits of this Section 4, (i) the Executive shall be entitled to
three-hundred sixty-five (365) days after termination of employment to take such
action or (ii) if such extension of time is expressly not permitted under the
applicable grant, the applicable plan, or otherwise, then the Executive (upon
notice by the Executive to the Company which notice must occur within ten (10)
days after termination of employment) shall be deemed to have taken such action
(other than the payment of money which shall be paid promptly and shall bear
interest until paid at 6%) immediately prior to the termination of employment in
order to realize the benefits of this Section 4.
5. CONTINUATION OF EXECUTIVE WELFARE BENEFITS
Notwithstanding anything contained herein to the contrary, if the
Executive is entitled to receive the Change-in-Control Payments set forth in
sections 2(c)(x) and 2(c)(z), the Company or its successor shall continue
Executive's participation, as if Executive was still an employee, in the
medical, dental, hospitalization and life insurance plans, programs and/or
arrangements of the Company or any of its subsidiaries in which Executive was
participating on the Termination Date on the same terms and conditions as other
executives under such plans, programs and/or arrangements until the earlier of
(i) the end of the 12-month period following the Termination Date or (ii) the
date, or dates, Executive is entitled to receive substantially equivalent
coverage and benefits under the plans, programs and/or arrangements of a
subsequent employer (such coverage and benefits to be determined on a
coverage-by-coverage or benefit-by-benefit basis).
6. GROSS-UP
(a) Whether or not the Executive becomes entitled to a
Change-in-Control Payment, if any payments or benefits received or to be
received by the Executive in connection with a Change-in-Control or the
Executive's termination of employment (whether such payments or benefits are
provided pursuant to the terms of this Agreement or any other plan, arrangement,
option grant, other Stock Awards or any agreement with the Company, any person
whose actions result in a Change-in-Control or any person affiliated with the
Company or such person) (such payments or benefits, excluding the Gross-Up
Payment, being hereinafter referred to as the "Total Payments") would be subject
to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the
Executive an additional amount (the "Gross-Up Payment") equal to the Excise Tax
plus related federal, state and local income, excise, and employment taxes so
that the Executive receives the same after-tax return from the total
Change-in-Control Payment that Executive would receive if there was no Excise
Tax. The intent of the Gross-Up Payment is to ensure that the Executive does not
bear the cost of the Excise Tax or any tax associated with the Company's
reimbursement of the Excise Tax.
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(b) For purposes of determining whether any of the Total Payments will
be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the
Total Payments shall be treated as "parachute payments" (within the meaning of
Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax
Counsel") selected by the Company and reasonably acceptable to the Executive,
such payments or benefits (in whole or in part) do not constitute parachute
payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all
"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code
shall be treated as subject to the Excise Tax unless, in the opinion of Tax
Counsel, such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered (within the meaning of
Section 280G(b)(4)(B) of the Code) in excess of the "base amount" (as defined in
Section 280G(b)(3) of the Code) allocable to such payment, or are otherwise not
subject to the Excise Tax, and (iii) the value of any noncash benefits or any
deferred payment or benefit shall be determined by Tax Counsel in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay federal income tax at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of the Executive's residence on the Termination Date. In computing the
federal income tax liability, the Executive shall be deemed to be entitled to
the maximum reduction in federal income taxes which could be obtained from a
full deduction of such state and local taxes.
(c) In the event that the Excise Tax is finally determined to be less
than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Executive shall repay to the Company, within twenty (20) business
days following the time that the amount of such reduction in the Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income and employment taxes imposed on the
Gross-Up Payment being repaid by the Executive, to the extent that such
repayment results in a reduction in the Excise Tax and a dollar-for-dollar
reduction in the Executive's taxable income and wages for purposes of federal,
state and local income and employment taxes, plus interest on the amount of such
repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In
the event that the Excise Tax is determined to exceed the amount taken into
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account hereunder in calculating the Gross-Up Payment (including by reason of
any payment the existence or amount of which cannot be determined at the time of
the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess (plus any interest, penalties or additions payable by the
Executive with respect to such excess) within twenty (20) business days
following the time that the amount of such excess is finally determined. The
Executive and the Company shall each reasonably cooperate with the other in
connection with any administrative or judicial proceedings concerning the
existence or amount of liability for Excise Tax with respect to the Total
Payments.
7. NON-COMPETE,NON-DISPARAGEMENT,AND NON-SOLICITATION
(a) Executive agrees that, upon written election by the Company (within
ten (10) business days after the Termination Date) to require the Executive to
comply with the terms of this Section 7(a), and conditioned on the Company's
payment of the amount set forth in Section 2(C), including 2(c)(y), for a one
(1) year period after the Termination Date, Executive shall not engage in any
Competitive Activity. For purposes of this Agreement, the term "Competitive
Activity" shall mean engaging in any of the following activities: (i) serving as
a director of any "Competitor" (as defined below); (ii) directly or indirectly,
through one or more intermediaries, either (x) controlling any Competitor or (y)
owning any equity or debt interests in any Competitor (other than equity or debt
interests which are publicly traded and, at the time of any acquisition, when
combined with other holdings, do not exceed 2% of the particular class of
interests outstanding)(it being understood that, if interests in any Competitor
are owned by an investment vehicle or other entity in which the Executive owns
an equity interest, a portion of the interests in such Competitor owned by such
entity shall be attributed to the Executive, such portion determined by applying
the percentage of the equity interest in such entity); (iii) in the Restricted
Area, employment by (including serving as an officer or partner of), providing
consulting services to (including, without limitation, as an independent
contractor), or managing or operating the business or affairs of, any
Competitor; or (iv) in the Restricted Area, participating in the operation or
control of any Competitor. For purposes of this Agreement, the term "Competitor"
shall mean any person or entity (other than the Company or any Subsidiary) whose
principal business is the providing of design, consultation, installation, and
maintenance professional services, with respect to the internet, or with respect
to intranet or extranet usage (all as determined at the time of termination of
employment). For purposes of this Agreement, the term "Restricted Area" shall
mean the United States.
(b) The Executive agrees that, if Executive receives a
Change-in-Control Payment as set forth in Sections 2(c)(x) and 2(c)(z) above,
for a period of one (1) year after the Termination Date, Executive shall not
directly or indirectly through another entity (i) disparage or defame the
Company and/or its then current or former directors, officers, shareholders, and
employees, (ii) induce or attempt to induce any employee of the Company or any
Subsidiary to leave the employ of the Company or any Subsidiary, or in any way
interfere with the relationship between the Company or any Subsidiary and any
employee thereof, or (iii) induce or attempt to induce any customer, supplier,
licensee, licensor, or other business relation of the Company or any Subsidiary
to cease doing business with the Company or any Subsidiary , or in any way
interfere with the relationship between any customer, supplier, licensee,
licensor or business relation of the Company or any Subsidiary. For purposes of
this Agreement, a customer, supplier, licensee, licensor, or business relation
means any person or entity which at the Termination Date is, or has been within
one (1) year prior to such date, a customer, supplier, licensee, licensor, or
other business relation of the Company or any Subsidiary.
(c) In the event a Change-in-Control Payment is made by the Company,
the Company may value the non-competition, non-disparagement, and
non-solicitation covenants and allocate the Change-in-Control Payment
accordingly.
(d) Executive agrees that any violation of this Section of this
Agreement might cause immediate and irreparable harm of the Company, the amount
of which might be impossible to estimate or determine. The rights and remedies
of the Company under this Agreement are cumulative and are in addition to all
other rights and remedies the Company may have under any local, state, federal
law, rule or regulation or otherwise.
8. MISCELLANEOUS
(a) NO EMPLOYMENT AGREEMENT. This Agreement does not constitute a
contract of employment or impose on the Company any obligation to retain the
Executive as an employee.
(b) DEDUCTIONS AND WITHHOLDING. The Executive agrees that the Company
shall withhold from any and all compensation required to be paid pursuant to
this Agreement all federal, state, local and/or other taxes which the Company
determines are required to be withheld in accordance with applicable statutes
and regulations from time to time in effect.
(c) WAIVER AND RELEASE. The Executive acknowledges that (i) the
Change-in-Control Payment is in excess of the amounts that the Executive would
otherwise be entitled to receive under any employment or severance agreement,
plan, program or arrangement of the Company or between the Company and the
Executive and (ii) the Company has no obligation to enter into this Agreement.
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In consideration of the Company assuming these additional obligations and
entering into this Agreement, upon receipt of the Change-in-Control Payment, the
Executive agrees to execute a release of all claims related to the Executive's
employment or termination thereof in the same form as annexed hereto, other than
any modifications which may be required to effectuate such release based upon
any changes in law or as may be reasonably required by the Company based on the
residence of the Executive.
(d) ARBITRATION. Except for enforcement of Executive's covenants under
Section 7, any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration conducted in Philadelphia,
Pennsylvania under the Commercial Arbitration Rules then prevailing of the
American Arbitration Association and such submission shall request the American
Arbitration Association to: (i) appoint three (3) arbitrators experienced and
knowledgeable concerning the matter then in dispute; (ii) require the testimony
to be transcribed; (iii) require the award to be accompanied by findings of fact
and a statement of reasons for the decision; and (iv) request the matter to be
handled by and in accordance with the expedited procedures provided for in the
Commercial Arbitration Rules. The determination of a majority of the
arbitrators, which shall be based upon a de novo interpretation of this
Agreement, shall be final and binding and judgment may be entered on the
arbitrators' award in any court having jurisdiction. All costs of the American
Arbitration Association and the arbitrators shall be borne by the Company,
unless the position advanced by the Executive is determined by a majority of the
arbitrators to be frivolous in nature.
(e) LEGAL FEES AND INTEREST. Except for legal fees Executive incurs in
defending the Company's successful enforcement of Executive's covenants under
Section 7, the Company or the successor shall pay to the Executive all
reasonable legal fees and expenses incurred by the Executive in disputing in
good faith any issues hereunder relating to the termination of the Executive's
employment, in seeking in good faith to obtain or enforce any benefit or right
provided by this Agreement, or in connection with any tax audit or proceeding to
the extent attributable to the application of Section 4999 of the Code to any
payment or benefit provided hereunder. Such payments shall be made within 30
days after delivery of the Executive's written request for payment accompanied
with such evidence of fees and expenses incurred as the Company reasonably may
require. The Company or the successor shall pay to the Executive interest at the
prime lending rate as announced from time to time by PNC Bank on all or any part
of the Change-in-Control Payment that is not paid when due.
(f) NO DUTY TO MITIGATE/SET-OFF. The Company agrees that in order to
receive the benefits under this Agreement, the Executive shall not be required
to seek other employment. Further, the amount of any payment or benefit
hereunder shall not be reduced by any compensation earned by the Executive or
any benefit provided to the Executive as the result of employment by another
employer or otherwise, except as provided in Sections 5 or 8(g) hereof. The
Company's obligations to make any payment or provide any benefit hereunder shall
not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the Company or a
successor may have against the Executive.
(g) REDUCTION OF CHANGE-IN CONTROL PAYMENT . The Change-in-Control
Payment shall be reduced by any severance cash payment made by the Company or
any Subsidiary to the Executive pursuant to (i) any severance plan, program,
policy or arrangement of the Company or any Subsidiary (excluding any 401K plan
or similar retirement plan), (ii) any employment agreement between the Company
or any Subsidiary and the Executive, and (iii) any federal, state or local
statute, rule, regulation or ordinance.
(h) ENTIRE AGREEMENT. This Agreement embodies the entire agreement of
the parties with respect to any payment and benefit due the Executive in the
event of a Change-in-Control and supersedes any other prior oral or written
agreements between the Executive and the Company with respect thereto, except
that nothing herein shall be construed to adversely affect the Executive's right
to receive any non-duplicative benefit or payment (subject to Section 8(g))
above to which Executive is entitled in connection with Executive's termination
of employment under any agreement between the Company and the Executive.
Additionally, nothing in this Agreement shall affect or modify any additional
obligations Executive has under any agreement with respect to confidential
information, assignment of inventions and discoveries, non-solicitation of
employees and/or customers, non-competition, or otherwise, and all such
agreements shall remain in full force and effect. No party may amend, modify or
terminate this Agreement without the express written consent of the other party.
(i) BINDING AGREEMENT. This Agreement shall inure to the benefit of and
be enforceable by the Executive's personal and legal representatives, executors,
administrators, heirs, distributees, devises and legatees, and the Company's
successors and assigns.
(j) GOVERNING LAW; VENUE AND JURISDICTION. This Agreement shall be
governed and construed in accordance with the laws of the Commonwealth of
Pennsylvania without reference to conflict of laws principles. The Executive
does hereby irrevocably consent that any legal action or proceeding arising out
of or in any manner relating to, this Agreement, or any other document delivered
in connection herewith, may be brought in any court of the Commonwealth of
Pennsylvania sitting in the Eastern District of Pennsylvania or in the United
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States District Court for the Eastern District of Pennsylvania. The Executive
further irrevocably consents to the service of any complaint, summons, notice or
other process relating to any such action or proceeding by delivery thereof to
the Executive by hand or by any other manner provided for below. The Executive
hereby expressly and irrevocably waives any claim or defense in any such action
or proceeding based on any alleged lack of personal jurisdiction, improper venue
or forum non conveniens or any similar basis.
(k) NOTICES. All notices required or permitted by this Agreement shall
be in writing and shall be given by personal delivery or sent by registered or
certified mail, postage prepaid, return receipt requested, or by reputable
overnight courier, prepaid, receipt acknowledged, to the following addresses, or
such other address to which the other party is notified pursuant to the
provisions hereof:
If to the Company:
U.S. Interactive, Inc.
2012 Renaissance Boulevard
King of Prussia, PA 19406
Attention: Chief Executive Officer
If to Executive:
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(l) COUNTERPARTS. This Agreement may be executed and delivered in
separate counterparts, each of which when so executed and delivered shall be
deemed an original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of the signature page to
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart. Any party so executing this Agreement by
facsimile transmission shall promptly deliver a manually executed counterpart,
provided that any failure to do so shall not affect the validity of the
counterpart executed by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
U.S. INTERACTIVE, INC.
By: /s/ William C. Jennings
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William C. Jennings
Title: Chief Executive Officer
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ACCEPTED AND AGREED TO
as of the date first written above
By:___________________________________
Print Name:____________________________
<PAGE>
RELEASE
Certain capitalized terms used in this Release are defined in the
Change-in-Control Agreement between U.S. Interactive, Inc. ("Company") and the
undersigned (the "Agreement").
Except as otherwise set forth in this Release and the Agreement, I
hereby release, acquit and forever discharge the Company, its past, present, and
future parents and subsidiaries, and their officers, directors, agents,
servants, employees, shareholders, successors, and assigns, of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, known and unknown, suspected and unsuspected, disclosed
and undisclosed, arising out of or in any way related to claims and demands
directly or indirectly arising out of my employment with the Company or the
termination of that employment, including but not limited to, claims of
intentional and negligent infliction of emotional distress, any and all tort
claims for personal injury, claims or demands related to salary, bonuses,
commissions, or any ownership interests in the Company, vacation pay, fringe
benefits, expenses reimbursements, severance pay, and any other form of disputed
compensation; claims pursuant to any federal, state or local law or cause of
action including, but not limited to, the federal Civil Rights Act of 1964, as
amended; the federal Age Discrimination in Employment Act of 1967, as amended
("ADEA"); the federal Employee Retirement Income Security Act of 1974, as
amended; the federal Americans with Disabilities Act of 1990; the California
Fair Employment and Housing Act, as amended; tort law; contract law; statutory
law; common law; wrongful discharge; discrimination; defamation; and breach of
the implied covenant of good faith and fair dealing; provided, however, that
nothing in this Release shall be construed in any way to release the Company
from its obligation to indemnify and defend me from any third party action
brought against me based on my employment with the Company ,or as an officer or
as a director of the Company, any Subsidiary of the Company, or any entity which
service was at the request of the Company, pursuant to any applicable agreement
or applicable law, or to reduce or eliminate any coverage or rights I may have
under the Company's director and officer indemnification provisions in the
Company's Certificate of Incorporation and Bylaws, and under any director and
officer liability insurance policy.
I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under ADEA. I also acknowledge that the consideration
given under the Agreement for the waiver and release in this Release is in
addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (A) my waiver and release do not apply to any rights or claims that may
arise on or after the date I execute this Release; (B) I should consult with an
attorney prior to executing this Release; (C) I have twenty-one (21) days to
consider this Release (although I may choose to voluntarily execute this Release
earlier); (D) I have seven (7) days following the execution of this Release to
revoke the Release in which event I must at such time return to the Company all
payments and other benefits received under the Agreement; and (E) this Release
shall not be effective until the date upon which the revocation period has
expired, which shall be the eighth day after this Release is executed by the
undersigned.
I acknowledge that I have read and understand Section 1542 of the California
Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and relinquish all rights
and benefits under that section and any law of any jurisdiction of similar
effect with respect to my release of any claims I may have against the Company.
(NAME OF EMPLOYEE)
Date: ______________________________ _______________________________
<PAGE>
The Company entered into the Change-In-Control Agreement with Philip L. Calamia
on September 21, 2000, Lawrence F. Shay on September 21, 2000, James J. Huser on
October 9, 2000 and O.P. Srinivasan on September 25, 2000.
