(10)(iii)(A)(8)
EMPLOYMENT AGREEMENT
This Agreement is made as of January 29, 1996 (the "Effective Date")
between Cincinnati Xxxx Inc., an Ohio corporation ("Employer" or "CBI"), and
Xxxx X. Xxxxxxx ("Employee").
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 cancelled as of the Effective Date.
2. PERIOD OF EMPLOYMENT. This Agreement begins on the Effective Date
and, subject to the terms of Section 13, will end on the day immediately
preceding the fifth anniversary of the Effective Date.
3. DUTIES.
A. Employee will serve as President and Chief Executive Officer of
Cincinnati Xxxx Directory Inc. ("CBD") or in such other equivalent capacity
as may be designated by the President of CBI. Employee will report to the
President of CBI or such other officer of CBI as may be designated by the
President of CBI.
B. Employee shall furnish such managerial, executive, financial,
technical, and other skills, advice and assistance in operating CBD as
Employer may request.
C. Employee shall also perform such other duties as are assigned to
Employee by the CBI officer to whom Employee reports.
D. Employee shall devote Employee's entire time, attention, and
energies to the business of Employer. The words "entire time, attention, and
energies" are intended to mean that Employee shall devote his full effort
during reasonable working hours to the business of Employer and shall devote
at least 40 hours per week to the business of Employer. 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 $120,000 for each calendar year, subject to proration for any partial
year, during the term of this Agreement. Such Base Salary, and any other
amounts payable hereunder, 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. For 1996, Employee shall be given a Bonus target of $50,000.
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 his duties to Employer shall be
reimbursable in accordance with Employer's then current travel and expense
policies.
6. BENEFITS.
A. At the first meeting of the CBI Compensation Committee after the
Effective Date, Employee shall be granted options to purchase 10,000 common
shares of CBI at the time and on the terms approved by the Compensation
Committee. In each year of this Agreement after 1996, Employee will be
granted options to purchase common shares of CBI at the time and on the terms
approved by the Compensation Committee of CBI. All provisions of this
Agreement which relate to the terms under which stock options will be granted
to Employee are subject to approval by the Compensation Committee. Such
options may be granted under CBI's 1988 Long Term Incentive Plan (the "1988
Plan") or similar stock option plan.
B. While Employee remains in the employ of Employer, Employee shall
be entitled to participate in all of the various employee benefit plans and
programs in which fourth level managers of CBI are participating.
C. Employee shall receive a restricted stock award of 6,000 common
shares of CBI at the first meeting of the CBI Compensation Committee
following the date on which this Agreement has been executed by the parties.
All provisions of this Agreement which relate the terms under which
restricted stock will be granted to Employee are subject to approval by the
Compensation Committee. Such award shall be made under the 1988 Plan on the
terms set forth in Exhibit A. Such award shall be further subject to the
terms of the 1988 Plan.
D. 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 Employer's Sickness and Accident
Disability Plan and Long Term Disability Plan for Salaried Employees.
7. CONFIDENTIALITY. Employer and its Affiliates are engaged in the
telecommunications services, information services and telecommunications
support services industries within the U.S. and world wide. 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
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management of Employer and its Affiliates; the names, addresses, buying habits
and other special information regarding past, present and potential
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 Employer and 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 and 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 his duties for Employer, without the express written consent of
Employer. For purposes of this Agreement, "Affiliate" means each direct and
indirect subsidiary of CBI.
8. NEW DEVELOPMENTS. All ideas, inventions, discoveries, concepts,
trademarks, or other developments or improvements, whether patentable or not,
conceived by 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 or that relate to Employer or Affiliates' work
or project, present, past or contemplated, 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 right, 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 his control that are the property of
Employer or any of its Affiliates, including without 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'S REMEDIES. 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 his employment, and Employee's
commitments and obligations to Employer and its Affiliates herein are of a
special, unique and extraordinary
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character, 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 this Agreement, or
any part of it, and to secure the enforcement of this Agreement.
B. EMPLOYEE'S REMEDIES. Employee agrees 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 Employee would have been
otherwise entitled to file or pursue in court or before any administrative
agency (herein "claim"), and Employee waives all right to xxx Employer, its
Affiliates, and all of their agents, employees, officers and directors.
(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 Employee's claims must be presented at a single
arbitration hearing under this Agreement. 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 requirement that Employee must pay a filing fee which 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 findings 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 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.
Compensatory, liquidated and punitive damages for breach of this Agreement,
if awarded, may not exceed the greater of (i) the amount provided in case of a
termination under Section 13.D, and (ii) the maximum amount otherwise payable
under the applicable terms of this Agreement. Compensatory, liquidated and
punitive damages, for a dispute, claim or controversy other than for breach
of this Agreement, if awarded, are limited to a combined total of one year's
salary. 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 costs for its witnesses and proof.
(h) Employer and Employee recognize that a primary benefit each
derives from entering this Agreement 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 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.
(iii) Arbitration must be requested in writing no later than 6
months from the date of Employee's knowledge of the matter disputed by the
claim. Employee's failure to initiate arbitration under this Agreement within
the time limits herein will be considered a waiver and release by Employee
with respects to any claim subject to arbitration under this Agreement.
(iv) Employer and Employee consent that judgement upon the
arbitration award may be entered in any federal or state court that has
jurisdiction.
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(v) Employee will not commence or pursue any litigation on
any claim that is or was subject to arbitration under this Agreement.
(vi) 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. 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 engage in any business offering services related to the
current business of Employer or any of its Affiliates in any capacity,
whether such capacity be as a principal, partner, joint venturer, agent,
employee, salesman, consultant, director or officer, where such position
would involve Employee (i) in any business activity in competition with
Employer of any of its Affiliates; (ii) in any position with any customer of
Employer or any of its Affiliates which involves such customer's billing
and/or billing related systems; or (iii) in any business that provides
billing and/or billing related systems to third parties engaged in the
communication business (including wireless, wireline and cable communication
businesses). This restriction will be limited to the geographical area where
Employer or any of its Affiliates 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
or Employer's Affiliates' 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 or any of
its Affiliates and that Employee will not divert or change, or attempt to
divert or change, any such relationship to the detriment of Employer or any
of its Affiliates or to the benefit of any other person, firm, association,
corporation or other entity.
During the two year period following termination of Employer's
employment with Employer for any reason (or if this period is unenforceable
by law, then for such a period as shall be enforceable) Employee shall not,
without 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 or any of its Affiliates at any time during the final
year of Employee's employment with Employer.
Employee will not, during or at any time after the termination of
Employee's employment with Employer, induce or seek to induce, any other
employee of Employer or any
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of its Affiliates to terminate his or her employment relationship with
Employer or the Affiliate which employs such other employee.
12. GOODWILL. Employee will not disparage or act in any manner,
directly or indirectly, which may damage the business of Employer or any of
its Affiliates or which would adversely affect the goodwill, reputation, and
business relationships of Employer of any of its Affiliates with the public
generally, or with any of their customers, suppliers or employees.
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 Employer's Sickness and Accident Disability Benefit
Plan and/or Employer's Long Term Disability Plan for Salaried Employees as
the case may be (the "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 a written notice by the terminating
party to the other.
(iii) Upon termination of this Agreement on account of
Terminating Disability, Employer shall pay Employee his accrued compensation
hereunder, whether Base Salary or otherwise (subject to offset for any
amounts received pursuant to the 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 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 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 Employee, provided, however, that the Employee's estate shall be
paid Employee's accrued compensation hereunder, whether Base Salary or
otherwise, to the date of death.
C. Employer may terminate this Agreement immediately for Cause.
For purposes of this Agreement, Employer shall have Cause to terminate this
Agreement only if the CBI Board of Directors determines that there had been
fraud, misappropriation or embezzlement on the part of the Employee.
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D. Employer may terminate this Agreement upon 60 days written
notice for any reason other than those set forth in Sections 13.A., B. and C.
In the event of a Termination under this Section 13.D., Employer shall pay
Employee an amount equal to two times the sum of the Base Salary as it exists
at the time of termination plus the Bonus target as it exists at the time of
termination. In addition, as provided in Exhibit A hereto, the restrictions
applicable to a portion of the restricted shares awarded to Employee under
Section 6.C. shall lapse. Employee's right to receive the payments called
for under this Section 13.D. (including the lapsing of restrictions
applicable to a portion of the restricted shares) shall be conditioned upon
Employee executing a release (in form satisfactory to CBI) of all claims
which Employee may have against CBI and its Affiliates.
E. 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, all further compensation under
this Agreement shall terminate; provided, however, that all qualified
deferred compensation which Employee may be entitled to receive pursuant to
any of Employer's pension or profit sharing plans in which Employee may
participate during Employee's employment with Employer shall be paid pursuant
to the provisions of such plans at such times as any such amounts become
payable to Employee. It is further understood that for purposes of this
Section 13, the term "accrued compensation" shall include all non-qualified
deferred compensation, of whatever type or form, either previously granted to
Employee by Employer or otherwise earned or received by Employee.
F. 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 trust between Employer and Employee,
all rights and duties of Employee arising under this Agreement, and the
Agreement itself, are nonassignable 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 his 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.
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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 of 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 unenforceability shall not affect any
other provisions hereof, and this Agreement shall be construed as if such
invalid, illegal or enforceable 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.
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. 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 CBI.
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. Xxxxxxxxx
------------------------
Xxxx X. Xxxxxxxxx
EMPLOYEE
/s/ Xxxx X. Xxxxxxx
------------------------
Xxxx X. Xxxxxxx
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