EXHIBIT 10(iii)(A)(13)
EMPLOYMENT AGREEMENT
This Agreement is made as of the Effective Date between Cincinnati Xxxx
Inc. ("Employer"), and Xxxxxxxxxxx X. Xxxxxx ("Employee"). For purposes of this
Agreement, the "Effective Date" is January 8, 2004.
Employer and Employee agree as follows:
1. Employment. By this Agreement, Employer and Employee set forth the
terms of Employer's employment of Employee on and after the Effective Date. Any
prior agreements or understandings with respect to Employee's employment by
Employer are canceled as of the Effective Date.
2. Term of Agreement. The term of this Agreement initially shall be the
one year period commencing on the Effective Date. On the first anniversary of
the Effective Date and on each subsequent anniversary of the Effective Date, the
term of this Agreement automatically shall be extended for a period of one
additional year. Notwithstanding the foregoing, the term of this Agreement is
subject to termination as provided in Section 13.
3. Duties.
A. Employee will serve as Vice President & General Counsel for
all of Cincinnati Xxxx Inc. or in such other equivalent capacity as may be
designated by the Chief Executive Officer of Employer. Employee will report to
the Chief Executive Officer of Employer or to such other officer as the Chief
Executive Officer of Employer may direct.
B. Employee shall furnish such managerial, executive, financial,
technical, and other skills, advice, and assistance in operating Employer and
its Affiliates as Employer may reasonably request. For purposes of this
Agreement, "Affiliate" means each corporation which is a member of a controlled
group of corporations (within the meaning of section 1563(a) of the Internal
Revenue Code of 1986, as amended (the "Code")) which includes Employer.
C. Employee shall also perform such other duties, consistent with
the provisions of Section 3.A., as are reasonably assigned to Employee by the
Chief Executive Officer of Employer.
D. Employee shall devote Employee's entire time, attention, and
energies to the business of Employer and its Affiliates. The words "entire time,
attention, and energies" are intended to mean that Employee shall devote
Employee's full effort during reasonable working hours to the business of
Employer and its Affiliates and shall devote at least 40 hours per week to the
business of Employer and its Affiliates. Employee shall travel to such places as
are necessary in the performance of Employee's duties.
4. Compensation.
A. Employee shall receive a base salary (the "Base Salary") of at
least $225,000 per year, payable not less frequently than monthly, for each year
during the term of this Agreement, subject to proration for any partial year.
Such Base Salary, and all other amounts payable under this Agreement, shall be
subject to withholding as required by law.
B. In addition to the Base Salary, Employee shall be entitled to
receive an annual bonus (the "Bonus") for each calendar year for which services
are performed under this Agreement. Any Bonus for a calendar year shall be
payable after the conclusion of the calendar year in accordance with Employer's
regular bonus payment policies. Each year, Employee shall be given a Bonus
target, by Employer's Compensation Committee, of not less than $112,500.
C. On at least an annual basis, Employee shall receive a formal
performance review and be considered for Base Salary and/or Bonus target
increases.
5. Expenses. All reasonable and necessary expenses incurred by Employee in
the course of the performance of Employee's duties to Employer shall be
reimbursable in accordance with Employer's then current travel and expense
policies.
6. Benefits.
A. While Employee remains in the employ of Employer, Employee
shall be entitled to participate in all of the various employee benefit plans
and programs, or equivalent plans and programs, which are made available to
similarly situated officers of Employer.
B. Notwithstanding anything contained herein to the contrary, the
Base Salary and Bonuses otherwise payable to Employee shall be reduced by any
benefits paid to Employee by Employer under any disability plans made available
to Employee by Employer.
C. In each year of this Agreement, Employee will be eligible to
be considered for a grant of stock options under Employer's 1997 Long Term
Incentive Plan or any similar plan made available to employees of Employer.
7. Confidentiality. Employer and its Affiliates are engaged in the
telecommunications industry within the U.S. Employee acknowledges that in the
course of employment with the Employer, Employee will be entrusted with or
obtain access to information proprietary to the Employer and its Affiliates with
respect to the following (all of which information is referred to hereinafter
collectively as the "Information"); the organization and management of Employer
and its Affiliates; the names, addresses, buying habits, and other special
information regarding past, present and potential
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customers, employees and suppliers of Employer and its Affiliates; customer and
supplier contracts and transactions or price lists of Employer, its Affiliates
and their suppliers; products, services, programs and processes sold, licensed
or developed by the Employer or its Affiliates; technical data, plans and
specifications, present and/or future development projects of Employer and its
Affiliates; financial and/or marketing data respecting the conduct of the
present or future phases of business of Employer and its Affiliates; computer
programs, systems and/or software; ideas, inventions, trademarks, business
information, know-how, processes, improvements, designs, redesigns, discoveries
and developments of Employer and its Affiliates; and other information
considered confidential by any of the Employer, its Affiliates or customers or
suppliers of Employer, its Affiliates. Employee agrees to retain the Information
in absolute confidence and not to disclose the Information to any person or
organization except as required in the performance of Employee's duties for
Employer, without the express written consent of Employer; provided that
Employee's obligation of confidentiality shall not extend to any Information
which becomes generally available to the public other than as a result of
disclosure by Employee.
8. New Developments. All ideas, inventions, discoveries, concepts,
trademarks, or other developments or improvements, whether patentable or not,
conceived by the Employee, alone or with others, at any time during the term of
Employee's employment, whether or not during working hours or on Employer's
premises, which are within the scope of or related to the business operations of
Employer or its Affiliates ("New Developments"), shall be and remain the
exclusive property of Employer. Employee shall do all things reasonably
necessary to ensure ownership of such New Developments by Employer, including
the execution of documents assigning and transferring to Employer, all of
Employee's rights, title and interest in and to such New Developments, and the
execution of all documents required to enable Employer to file and obtain
patents, trademarks, and copyrights in the United States and foreign countries
on any of such New Developments.
9. Surrender of Material Upon Termination. Employee hereby agrees that
upon cessation of Employee's employment, for whatever reason and whether
voluntary or involuntary, Employee will immediately surrender to Employer all of
the property and other things of value in his possession or in the possession of
any person or entity under Employee's control that are the property of Employer
or any of its Affiliates, including without any limitation all personal notes,
drawings, manuals, documents, photographs, or the like, including copies and
derivatives thereof, relating directly or indirectly to any confidential
information or materials or New Developments, or relating directly or indirectly
to the business of Employer or any of its Affiliates.
10. Remedies.
A. Employer and Employee hereby acknowledge and agree that the services
rendered by Employee to Employer, the information disclosed to Employee during
and by virtue of Employee's employment, and Employee's commitments and
obligations to Employer and its Affiliates herein are of a special, unique and
extraordinary character,
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and that the breach of any provision of this Agreement by Employee will cause
Employer irreparable injury and damage, and consequently the Employer shall be
entitled to, in addition to all other remedies available to it, injunctive and
equitable relief to prevent a breach of Sections 7, 8, 9, 11 and 12 of this
Agreement and to secure the enforcement of this Agreement.
B. Except as provided in Section 10.A., the parties agree to
submit to final and binding arbitration any dispute, claim or controversy,
whether for breach of this Agreement or for violation of any of Employee's
statutorily created or protected rights, arising between the parties that either
party would have been otherwise entitled to file or pursue in court or before
any administrative agency (herein "claim"), and waives all right to xxx the
other party.
(i) This agreement to arbitrate and any resulting
arbitration award are enforceable under and subject to the Federal Arbitration
Act, 9 U.S.C. Section 1 et seq. ("FAA"). If the FAA is held not to apply for
any reason then Ohio Revised Code Chapter 2711 regarding the enforceability of
arbitration agreements and awards will govern this Agreement and the arbitration
award.
(ii) (a) All of a party's claims must be presented at
a single arbitration hearing. Any claim not raised at the arbitration hearing is
waived and released. The arbitration hearing will take place in Cincinnati,
Ohio.
(b) The arbitration process will be governed by
the Employment Dispute Resolution Rules of the American Arbitration Association
("AAA") except to the extent they are modified by this Agreement.
(c) Employee has had an opportunity to review
the AAA rules and the requirements that Employee must pay a filing fee for which
the Employer has agreed to split on an equal basis.
(d) The arbitrator will be selected from a panel
of arbitrators chosen by the AAA in White Plains, New York. After the filing of
a Request for Arbitration, the AAA will send simultaneously to Employer and
Employee an identical list of names of five persons chosen from the panel. Each
party will have 10 days from the transmittal date in which to strike up to two
names, number the remaining names in order of preference and return the list to
the AAA.
(e) Any pre-hearing disputes will be presented
to the arbitrator for expeditious, final and binding resolution.
(f) The award of the arbitrator will be in
writing and will set forth each issue considered and the arbitrator's finding of
fact and conclusions of law as to each such issue.
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(g) The remedy and relief that may be granted by
the arbitrator to Employee are limited to lost wages, benefits, cease and desist
and affirmative relief, compensatory, liquidated and punitive damages and
reasonable attorney's fees, and will not include reinstatement or promotion. If
the arbitrator would have awarded reinstatement or promotion, but for the
prohibition in this Agreement, the arbitrator may award front pay. The
arbitrator may assess to either party, or split, the arbitrator's fee and
expenses and the cost of the transcript, if any, in accordance with the
arbitrator's determination of the merits of each party's position, but each
party will bear any cost for its witnesses and proof.
(h) Employer and Employee recognize that a
primary benefit each derives from arbitration is avoiding the delay and costs
normally associated with litigation. Therefore, neither party will be entitled
to conduct any discovery prior to the arbitration hearing except that: (i)
Employer will furnish Employee with copies of all non-privileged documents in
Employee's personnel file; (ii) if the claim is for discharge, Employee will
furnish Employer with records of earnings and benefits relating to Employee's
subsequent employment (including self-employment) and all documents relating to
Employee's efforts to obtain subsequent employment; (iii) the parties will
exchange copies of all documents they intend to introduce as evidence at the
arbitration hearing at least 10 days prior to such hearing; (iv) Employee will
be allowed (at Employee's expense) to take the depositions, for a period not to
exceed four hours each, of two representatives of Employer, and Employer will be
allowed (at its expense) to depose Employee for a period not to exceed four
hours; and (v) Employer or Employee may ask the arbitrator to grant additional
discovery to the extent permitted by AAA rules upon a showing that such
discovery is necessary.
(i) Nothing herein will prevent either party
from taking the deposition of any witness where the sole purpose for taking the
deposition is to use the deposition in lieu of the witness testifying at the
hearing and the witness is, in good faith, unavailable to testify in person at
the hearing due to poor health, residency and employment more than 50 miles from
the hearing site, conflicting travel plans or other comparable reason.
(j) Arbitration must be requested in writing no
later than 6 months from the date of the party's knowledge of the matter
disputed by the claim. A party's failure to initiate arbitration within the time
limits herein will be considered a waiver and release by that party with respect
to any claim subject to arbitration under this Agreement.
(k) Employer and Employee consent that judgment
upon the arbitration award may be entered in any federal or state court that has
jurisdiction.
(l) Except as provided in Section 10.A., neither
party will commence or pursue any litigation on any claim that is or was subject
to arbitration under this Agreement.
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(m) All aspects of any arbitration procedure
under this Agreement, including the hearing and the record of the proceedings,
are confidential and will not be open to the public, except to the extent the
parties agree otherwise in writing, or as may be appropriate in any subsequent
proceedings between the parties, or as may otherwise be appropriate in response
to a governmental agency or legal process.
11. Covenant Not to Compete. For purposes of this Section 11 only, the term
"Employer" shall mean, collectively, Employer and each of its Affiliates. During
the one-year period following termination of Employee's employment with Employer
for any reason (or if this period is unenforceable by law, then for such period
as shall be enforceable) Employee will not engage in any business offering
services related to the current business of Employer, whether as a principal,
partner, joint venture, agent, employee, salesman, consultant, director or
officer, where such position would involve Employee in any business activity in
competition with Employer. This restriction will be limited to the geographical
area where Employer is then engaged in such competing business activity or to
such other geographical area as a court shall find reasonably necessary to
protect the goodwill and business of the Employer.
During the two-year period following termination of Employee's
employment with Employer for any reason (or if this period is unenforceable by
law, then for such period as shall be enforceable) Employee will not interfere
with or adversely affect, either directly or indirectly, Employer's
relationships with any person, firm, association, corporation or other entity
which is known by Employee to be, or is included on any listing to which
Employee had access during the course of employment as a customer, client,
supplier, consultant or employee of Employer and that Employee will not divert
or change, or attempt to divert or change, any such relationship to the
detriment of Employer or to the benefit of any other person, firm, association,
corporation or other entity.
During the one-year period following termination of Employee's
employment with Employer for any reason (or if this period is unenforceable by
law, then for such period as shall be enforceable) Employee shall not, without
the prior written consent of Employer, accept employment, as an employee,
consultant, or otherwise, with any company or entity which is a customer or
supplier of Employer at any time during the final year of Employee's employment
with Employer.
Employee will not, during or at any time within three years after the
termination of Employee's employment with Employer, induce or seek to induce,
any other employee of Employer to terminate his or her employment relationship
with Employer.
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12. Goodwill. Employee will not disparage Employer or any of its Affiliates
in any way which could adversely affect the goodwill, reputation and business
relationships of Employer or any of its Affiliates with the public generally, or
with any of their customers, suppliers or employees. Employer will not disparage
Employee.
13. Termination.
A. (i) Employer or Employee may terminate this Agreement
upon Employee's failure or inability to perform the services required hereunder
because of any physical or mental infirmity for which Employee receives
disability benefits under any disability benefit plans made available to
Employee by Employer (the "Disability Plans"), over a period of one hundred
twenty consecutive working days during any twelve consecutive month period (a
"Terminating Disability").
(ii) If Employer or Employee elects to terminate this
Agreement in the event of a Terminating Disability, such termination shall be
effective immediately upon the giving of written notice by the terminating party
to the other.
(iii) Upon termination of this Agreement on account of
Terminating Disability, Employer shall pay Employee Employee's accrued
compensation hereunder, whether Base Salary, Bonus or otherwise (subject to
offset for any amounts received pursuant to the Disability Plans), to the date
of termination. For as long as such Terminating Disability may exist, Employee
shall continue to be an employee of Employer for all other purposes and Employer
shall provide Employee with disability benefits and all other benefits according
to the provisions of the Disability Plans and any other Employer plans in which
Employee is then participating.
(iv) If the parties elect not to terminate this Agreement
upon an event of a Terminating Disability and Employee returns to active
employment with Employer prior to such a termination, or if such disability
exists for less than one hundred twenty consecutive working days, the provisions
of this Agreement shall remain in full force and effect.
B. This Agreement terminates immediately and automatically on the
death of the Employee, provided, however, that the Employee's estate shall be
paid Employee's accrued compensation hereunder, whether Base Salary, Bonus or
otherwise, to the date of death.
C. Employer may terminate this Agreement immediately, upon
written notice to Employee, for Cause. For purposes of this Agreement, Employer
shall have "Cause" to terminate this Agreement only if Employer's Board of
Directors determines that there has been fraud, misappropriation or embezzlement
on the part of Employee.
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D. Employer may terminate this Agreement immediately, upon
written notice to Employee, for any reason other than those set forth in
Sections 13.A., B. and C.; provided, however, that Employer shall have no right
to terminate under this Section 13.D. within one year after a Change in Control.
In the event of a termination by Employer under this Section 13.D., Employer
shall, within five days after the termination, pay Employee an amount equal to
one times the sum of the annual Base Salary rate in effect at the time of
termination plus the Bonus target in effect at the time of termination. For the
remainder of the Current Term, Employer shall continue to provide Employee with
medical, dental, vision and life insurance coverage comparable to the medical,
dental, vision and life insurance coverage in effect for Employee immediately
prior to the termination; and, to the extent that Employee would have been
eligible for any post-retirement medical, dental, vision or life insurance
benefits from Employer if Employee had continued in employment through the end
of the Current Term, Employer shall provide such post-retirement benefits to
Employee after the end of the Current Term. For purposes of any stock option or
restricted stock grant outstanding immediately prior to the termination,
Employee's employment with Employer shall not be deemed to have terminated until
the end of the Current Term. In addition, Employee shall be entitled to receive,
as soon as practicable after termination, an amount equal to the sum of (i) any
forfeitable benefits under any qualified or nonqualified pension, profit
sharing, 401(k) or deferred compensation plan of Employer or any Affiliate which
would have vested prior to the end of the Current Term if Employee's employment
had not terminated plus (ii) if Employee is participating in a qualified or
nonqualified defined benefit plan of Employer or any Affiliate at the time of
termination, an amount equal to the present value of the additional vested
benefits which would have accrued for Employee under such plan if Employee's
employment had not terminated prior to the end of the Current Term and if
Employee's annual Base Salary and Bonus target had neither increased nor
decreased after the termination. For purposes of this Section 13.D., "Current
Term" means the one year period beginning at the time of termination. For
purposes of this Section 13.D. and Section 13.E., "Change in Control" means a
change in control as defined in Employer's 1997 Long Term Incentive Plan,
including all relevant modifications.
E. This Agreement shall terminate automatically in the event that
there is a Change in Control and Employee's employment with Employer is actually
or constructively terminated by Employer within one year after the Change in
Control for any reason other than those set forth in Sections 13.A., B. and C.
For purposes of the preceding sentence, a "constructive" termination of
Employee's employment shall be deemed to have occurred if, without Employee's
consent, there is a material reduction in Employee's authority or
responsibilities or if there is a reduction in Employee's Base Salary or Bonus
target from the amount in effect immediately prior to the Change in Control or
if Employee is required by Employer to relocate from the city where Employee is
residing immediately prior to the Change in Control. In the event of a
termination under this Section 13.E., Employer shall pay Employee an amount
equal to one times the sum of the annual Base Salary rate in effect at the time
of termination plus the Bonus target in effect at the time of termination, all
stock options shall become immediately exercisable (and Employee shall be
afforded the opportunity to exercise
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them). For the remainder of the Current Term, Employer shall continue to provide
Employee with medical, dental, vision and life insurance coverage comparable to
the medical, dental, vision and life insurance coverage in effect for Employee
immediately prior to the termination; and, to the extent that Employee would
have been eligible for any post-retirement medical, dental, vision or life
insurance benefits from Employer if Employee had continued in employment through
the end of the Current Term, Employer shall provide such post-retirement
benefits to Employee after the end of the Current Term. Employee's accrued
benefit under any nonqualified pension or deferred compensation plan maintained
by Employer or any Affiliate shall become immediately vested and nonforfeitable
and Employee also shall be entitled to receive a payment equal to the sum of (i)
any forfeitable benefits under any qualified pension or profit sharing or 401(k)
plan maintained by Employer or any Affiliate plus (ii) if Employee is
participating in a qualified or nonqualified defined benefit plan of Employer or
any Affiliate at the time of termination, an amount equal to the present value
of the additional benefits which would have accrued for Employee under such plan
if Employee's employment had not terminated prior to the end of the Current Term
and if Employee's annual Base Salary and Bonus target had neither increased nor
decreased after the termination. Finally, to the extent that Employee is deemed
to have received an excess parachute payment by reason of the Change in Control,
Employer shall pay Employee an additional sum sufficient to pay (i) any taxes
imposed under section 4999 of the Code plus (ii) any federal, state and local
taxes applicable to any taxes imposed under section 4999 of the Code. For
purposes of this Section 13.E., "Current Term" means the one year period
beginning at the time of termination.
F. Employee may resign upon 60 days' prior written notice to
Employer. In the event of a resignation under this Section 13.F., this Agreement
shall terminate and Employee shall be entitled to receive Employee's Base Salary
through the date of termination, any Bonus earned but not paid at the time of
termination and any other vested compensation or benefits called for under any
compensation plan or program of Employer.
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G. Upon termination of this Agreement as a result of an event of
termination described in this Section 13 and except for Employer's payment of
the required payments under this Section 13 (including any Base Salary accrued
through the date of termination, any Bonus earned for the year preceding the
year in which the termination occurs and any nonforfeitable amounts payable
under any employee plan), all further compensation under this Agreement shall
terminate.
H. The termination of this Agreement shall not amend, alter or
modify the rights and obligations of the parties under Sections 7, 8, 9, 10, 11,
and 12 hereof, the terms of which shall survive the termination of this
Agreement.
14. Assignment. As this is an agreement for personal services involving a
relation of confidence and a trust between Employer and Employee, all rights and
duties of Employee arising under this Agreement, and the Agreement itself, are
non-assignable by Employee.
15. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient, if in writing, and if delivered personally or by
certified mail to Employee at Employee's place of residence as then recorded on
the books of Employer or to Employer at its principal office.
16. Waiver. No waiver or modification of this Agreement or the terms
contained herein shall be valid unless in writing and duly executed by the party
to be charged therewith. The waiver by any party hereto of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by such party.
17. Governing Law. This agreement shall be governed by the laws of the
State of Ohio.
18. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to Employee's employment by Employer. There are no other
contracts, agreements or understandings, whether oral or written, existing
between them except as contained or referred to in this Agreement.
19. Severability. In case any one or more of the provisions of this
Agreement is held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or other enforceability shall not affect any other
provisions hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provisions have never been contained herein.
20. Successors and Assigns. Subject to the requirements of Paragraph 14
above, this Agreement shall be binding upon Employee, Employer and Employer's
successors and assigns.
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21. Confidentiality of Agreement Terms. The terms of this Agreement shall
be held in strict confidence by Employee and shall not be disclosed by Employee
to anyone other than Employee's spouse, Employee's legal counsel, and Employee's
other advisors, unless required by law. Further, except as provided in the
preceding sentence, Employee shall not reveal the existence of this Agreement or
discuss its terms with any person (including but not limited to any employee of
Employer or its Affiliates) without the express authorization of the President
of Employer. To the extent that the terms of this Agreement have been disclosed
by Employer, in a public filing or otherwise, the confidentiality requirements
of this Section 21 shall no longer apply to such terms.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Cincinnati Xxxx Inc.
By : /s/ Xxxx X. Xxxxxxx
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EMPLOYEE
/s/ Xxxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxxx X. Xxxxxx
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