Exhibit 10.3
INCENTIVE AWARD AGREEMENT
THIS AGREEMENT is entered into as of the 11th day of March, 2004 by and
between Citizens Communications Company, a Delaware corporation (the "Company"),
and Xxxxx X. Xxxxxxxxx ( the "Executive").
WHEREAS, the Executive is currently employed by the Company as its
President and Chief Operating Officer; and
WHEREAS, the Board (as defined in Section 1(a)), upon the recommendation of
the Compensation Committee of the Board, has determined that it is in the best
interest of the Company and its stockholders to secure the Executive's continued
services and to ensure the Executive's continued dedication and objectivity in
the event of any occurrence of, or negotiation or other action that could lead
to, a Transaction (as defined in Section 1(j)), without concern as to whether
the Executive might be hindered or distracted by personal uncertainties and
risks created by any such possible Transaction, and to encourage the Executive's
full attention and dedication to the Company, the Board has authorized the
Company to enter into this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, the Company and the Executive hereby
agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Cause" means the Executive's willful or gross misconduct with
respect to the Company. Cause shall not exist unless and until the Company has
delivered to the Executive a copy of a resolution duly adopted by three-quarters
(3/4) of the Board at a meeting of the Board called and held for such purpose
(after 30 days' prior written notice to the Executive and an opportunity
for the Executive, together with his counsel, to be heard before the Board),
finding that in the good faith opinion of the Board that the Executive was
guilty of the conduct described in the preceding sentence and specifying the
particulars thereof in detail.
(c) "Date of Termination" means (i) the effective date on which the
Executive's employment by the Company terminates as specified in a Notice of
Termination by the Company or the Executive, as the case may be, (ii) if the
Executive's employment by the Company terminates by reason of death, the date of
death of the Executive, or (iii) if the Executive's employment by the Company
terminates by reason of Disability, or (iv) August 30, 2004. Notwithstanding the
previous sentence, if the Executive's employment is terminated by the Company
other than for Cause or by reason of Disability, then such Date of Termination
shall be no earlier than thirty (30) days following the date on which a Notice
of Termination is received.
(d) "Disability" means the Executive's absence from his duties with
the Company on a full-time basis extending until at least August 30, 2004, as a
result of the Executive's incapacity due to mental or physical illness.
(e) "Effective Date" means the first day on which this Agreement is no
longer subject to revocation pursuant to Section 17.
(f) "Good Reason" means, without the Executive's express written
consent, the occurrence of any of the following events:
(1) a material adverse change in the Executive's reporting
responsibilities, titles, or offices with the Company as in effect as of the
Effective Date;
(2) any removal or involuntary termination of employment of the
Executive by the Company otherwise than as expressly permitted by this Agreement
(including any purported termination of employment, other than by reason of
death or Disability, which is not effected by a Notice of Termination);
(3) a reduction by the Company in the Executive's current rate of
annual base salary or target bonus; or
(4) any requirement of the Company that the Executive be based
more than 50 miles from Stamford, Connecticut.
For purposes of this Agreement, an action taken in good faith and which is
remedied by the Company within ten (10) days after receipt of written notice
thereof given by the Executive shall not constitute Good Reason.
(g) "Nonqualifying Termination" means a termination of the Executive's
employment (i) by the Company for Cause, (ii) by the Executive for any reason
other than Good Reason; provided, however, that a Nonqualifying Termination
shall not include a termination of the Executive's employment by reason of death
or Disability or the Executive's voluntary termination following the earlier of
(x) the occurrence of a Triggering Event and (y) August 30, 2004.
(h) "Notice of Termination" means notice of the Date of Termination as
described in Section 14(b).
(i) "Qualifying Termination" means a termination of the Executive's
employment other than a Nonqualifying Termination.
(j) "Transaction" means, whether in one or a series of transactions,
(i) any merger, consolidation, joint venture or other business combination
pursuant to which the business of the Company is combined with that of any other
person (any such person, together with its subsidiaries and affiliates, a
"Purchaser"); (ii) the acquisition by a Purchaser, directly or indirectly, of a
majority of the capital stock or of the assets, properties and/or businesses of
the Company, by way of a direct or indirect purchase, lease, license, exchange,
joint venture or other means; or (iii) any material recapitalization of the
Company, including by way of any material spin-off, split-off or other material
extraordinary dividend of cash, securities or other assets of the Company to
stockholders of the Company (including any repurchase by the Company of a
material amount of its securities) involving the Company.
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(k) "Triggering Event" means (x) a public announcement that the
Company has entered into a Transaction, or (y) a decision by the Company not to
pursue any potential Transaction after completing its review of strategic
alternatives.
2. Term of Agreement. This Agreement shall commence on the Effective Date
and shall continue in effect until the earlier of (i) the occurrence of a
Triggering Event and (ii) August 30, 2004. Notwithstanding the foregoing, the
obligations of the Company under this Agreement, and the obligations of the
Executive under Section 6, shall survive until such obligations shall have been
performed in full, and the obligations of the Executive under Sections 7 and 8
shall survive for the periods set forth in those Sections.
3. Incentive Award. The Company shall pay the Executive a cash incentive
award in one or more installments as follows:
(a) $2,500,000 shall be payable on the Effective Date.
(b) In the event that no Triggering Event occurs before June 30, 2004,
an additional $1,000,000 shall be payable on June 30, 2004, provided that the
Executive is actively employed on such date.
(c) In the event that no Triggering Event occurs before August 30,
2004, an additional $1,000,000 shall be payable on August 30, 2004, provided
that the Executive is actively employed on such date.
(d) In the event that a Triggering Event occurs before August 30, 2004,
the Executive shall be paid within five days from the date of such Triggering
Event the difference between (i) $4,500,000 and (ii) the aggregate amount of any
incentive award installments previously paid to the Executive pursuant to this
Section 3, provided that the Executive is actively employed on the date of such
Triggering Event.
(e) In the event that the Executive's employment terminates in a
Qualifying Termination before August 30, 2004, the Executive or his beneficiary
or estate shall be paid within five days from the Date of Termination the
difference, if any, between (i) $4,500,000 and (ii) the aggregate amount of any
incentive award installments previously paid to the Executive pursuant to this
Section 3.
(f) For purposes of this Section 3, the Executive shall be considered
to be actively employed on a date if the effective time of his termination of
employment occurs after the commencement of business on that date.
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4. Payments Upon Termination of Employment.
(a) In the event that the Executive's employment terminates in a
Qualifying Termination, the Company shall pay to the Executive (or the
Executive's beneficiary or estate) within five (5) days following the Date of
Termination, as compensation for services rendered to the Company a lump-sum
cash amount equal to the sum of (i) the Executive's unpaid base salary from the
Company through the Date of Termination (at the rate in effect (without taking
into account any reduction of base salary constituting Good Reason) just prior
to the time a Notice of Termination is given); (ii) the product of $900,000
(representing the Executive's 2003 cash bonus) times a fraction, the numerator
of which is the number of days in the fiscal year up to and including the Date
of Termination and the denominator of which is 365 (the "Pro-Ration Fraction");
and (iii) the Pro-Ration Fraction multiplied by the product of 61,000
(representing the number of shares of restricted stock awarded to the Executive
in 2004 (on account of 2003 performance)) times the fair market value, on the
earlier of the Date of Termination or August 30, 2004, of a share of common
stock of the Company, as measured by the closing price per share of such stock
on the New York Stock Exchange on such date (or, if no shares were traded on
such date, on the next preceding date on which such shares were traded).
(b) In the event that the Executive's employment terminates in a
Nonqualifying Termination, the Company shall pay to the Executive within five
(5) days following the Date of Termination a lump-sum cash amount equal to the
Executive's unpaid base salary from the Company through the Date of Termination
(at the rate in effect just prior to the time a Notice of Termination is given).
5. Additional Benefits.
(a) Stock Options and Restricted Stock. All of the Executive's
outstanding stock option awards shall become fully vested, and the restrictions
on all of the Executive's outstanding restricted stock awards shall lapse, on
the earlier of (i) the occurrence of a Triggering Event prior to the Executive's
termination of employment and (ii) the date the Executive's employment
terminates in a Qualifying Termination.
(b) Health Care Coverage. The Executive and his spouse shall be eligible
to continue to participate in the Company's health care plan (including retiree
health coverage) to the same extent, and on the same terms and conditions, as
other current or former (as applicable) members of the Board.
(c) Tax Preparation Services. The Company shall reimburse the executive
for up to 50 hours of professional tax consultation and services with respect to
the 2004 taxable year in accordance with the Company's current policy applicable
to senior executives.
(d) D&O Insurance; Indemnification. Until the later to occur of (i) six
years following the completion of a Transaction or (ii) August 31, 2010, the
Company will continue to maintain director and officer liability insurance,
similar in coverage and scope to its current policy, and shall cause the
Executive to be covered under its director and officer liability insurance
policy in accordance with the Company's policy applicable to current and former
directors and officers. The Company confirms and agrees that the Executive is
and will be entitled to indemnification from the Company, whether or not the
Executive continues as a member of the Board of Directors of the Company, to the
fullest extent currently or hereafter provided by the Company's certificate of
incorporation and by-laws and the General Corporate Law of the State of Delaware
with respect to all acts and omissions arising out of or related to the
Executive's services as an officer, agent or director of the Company or any
subsidiary of the Company, or otherwise on behalf of the Company or any
subsidiary of the Company.
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6. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
6) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code, or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such interest and
penalties, being hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all federal,
state and local taxes (including any interest or penalties imposed with respect
to such taxes) including, without limitation, any income and employment taxes
(and any interest and penalties imposed with respect thereto) and Excise Tax,
imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b)Subject to the provisions of Section 6(c), all determinations required
to be made under this Section 6, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by Deloitte & Touche
(the "Accounting Firm"), which shall provide detailed supporting calculations
both to the Company and the Executive within fifteen (15) business days of the
receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company (collectively, the "Determination").
All fees charged by the Accounting Firm for its services provided in connection
with this Agreement will be paid by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the change in control, the Executive shall appoint another
nationally recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall furnish the Executive with a written opinion that
failure to report the Excise Tax on the Executive's applicable federal income
tax return would not result in the imposition of a negligence or similar
penalty. The Determination by the Accounting Firm shall be binding upon the
Company and the Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the Determination, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 6(c) and the Executive thereafter is required to make payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:
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(1) give the Company any information reasonably requested by the
Company relating to such claim,
(2) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(3) cooperate with the Company in good faith in order effectively
to contest such claim, and
(4) permit the Company to participate in any proceeding relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties), and the fees
of the Executive's legal counsel, incurred in connection with such contest and
shall indemnify and hold the Executive harmless, on an after-tax basis, for any
Excise Tax or income or employment tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing provisions of this
Section 6(c), the Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided further, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income or
employment tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and provided further, that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
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(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 6(c), the Executive becomes entitled to receive, and
receives, any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Section 6(c) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 6(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
7. Secrecy; Nondisparagement.
(a) The Executive recognizes and acknowledges that the information (such
as, but not limited to, financial information), trade secrets, technical data,
and know-how of the Company as acquired and used by the Company are special,
valuable, and unique assets of the Company. The Executive shall not, while
employed by the Company or at any time thereafter, disclose any such
information, trade secrets, technical data, or know-how to any person, firm,
corporation, association or any other entity for any reason or purpose
whatsoever without the prior written consent of the Company, unless compelled to
do so by legal process or unless such information shall have previously become
public knowledge or knowledge generally in the telecommunications industry.
(b) The Executive shall not, while employed by the Company or at any time
thereafter, make any disparaging statements about the Company or the directors,
officers or employees of the Company; provided that this Section 7(b) shall not
apply to truthful testimony as a witness, compliance with other legal
obligations, or truthful assertion of or defense against any claim or breach of
this Agreement, or to the Executive's truthful statements or disclosures to
officers or directors of the Company, and shall not require the Executive to
make false statements or disclosures. The Company agrees that neither the
directors nor the officers of the Company nor any spokesperson for the Company
shall make any disparaging statements about the Executive; provided that this
Section 7(b) shall not apply to truthful testimony as a witness, compliance with
other legal obligations, truthful assertion of or defense against any claim of
breach of this Agreement, or truthful statements or disclosures to the
Executive, and shall not require false statements or disclosures to be made.
8. Covenant Not to Compete; Nonsolicitation.
(a) In exchange for the incentive award benefits described in Section 3,
and for other consideration provided to the Executive pursuant to this
Agreement, for the period commencing on the date of this Agreement and ending on
the earlier of the date of a Triggering Event and August 30, 2004 the Executive
shall not participate as an executive officer or in any similar capacity in, or
consult with or otherwise render services to (other than on behalf of the
Company), or acquire or maintain beneficial ownership of more than five percent
of the equity ownership of, any corporation, partnership or other business
entity that on or before August 30, 2004 submits a bid to the Company for a
proposed Transaction, other than an entity whose bid is accepted by the Company.
In the event of a decision by the Company not to pursue any potential
Transaction after completing its review of strategic alternatives, this Section
8(a) shall cease to apply.
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(b) For the one-year period commencing on the date of this Agreement, the
Executive shall not personally (and shall not personally cause others to) (i)
take any action to solicit or divert any material business or customers away
from the Company, (ii) induce customers, potential customers, suppliers, agents
or other persons under contract or otherwise associated or doing business with
the Company to terminate, reduce or alter any such association or business, or
(iii) induce any person employed by the Company to (A) terminate such employment
arrangement, (B) accept employment with another person, or (C) interfere with
the customers or suppliers or otherwise with the Company in any manner.
9. Withholding Taxes. The Company may withhold from all payments due to the
Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
10. Offset Against Other Benefits. Any amount paid pursuant to Section 3
shall offset any other amount of severance relating to salary or bonus
continuation to be received by the Executive upon termination of employment of
the Executive under any other severance plan, policy, or arrangement of the
Company.
11. Reimbursement of Expenses. If any contest or dispute shall arise under
this Agreement involving termination of the Executive's employment with the
Company or involving the failure or refusal of the Company to perform fully in
accordance with the terms hereof, the Company shall reimburse the Executive, on
a current basis, for all legal fees and expenses, if any, incurred by the
Executive in connection with such contest or dispute regardless of the outcome
thereof. In addition, the Company shall reimburse the Executive for the fees and
expenses of one firm of accountants and one firm of lawyers retained by the
Executive to assist the Executive in connection with this Agreement.
12. Scope of Agreement. Nothing in this Agreement shall be deemed to
entitle the Executive to continued employment with the Company or its
subsidiaries.
13. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any merger or consolidation
of the Company whereby the Company is or is not the surviving or resulting
corporation or as a result of any transfer of all or substantially all of the
assets of the Company. In the event of any such merger, consolidation or
transfer of assets, the provisions of this Agreement shall be binding upon the
surviving or resulting corporation or the person or entity to which such assets
are transferred. The Company will cause any Purchaser, or any other entity that
is a party to any Transaction, expressly to agree to be bound in all respects to
the terms of this Agreement and to agree that the Executive shall be a
third-party beneficiary to such express agreement.
(b)This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amounts would be payable to the Executive hereunder had the
Executive continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to such person or
persons appointed in writing by the Executive to receive such amounts or, if no
person is so appointed, to the Executive's estate.
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14. Notice.
(a) For purposes of this Agreement, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered or five (5) days after deposit in the United
States mail, certified and return receipt requested, postage prepaid, addressed
as follows:
If to the Executive:
Xxxxx X. Xxxxxxxxx
[insert address]
with a copy to:
Xxxxxx Xxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to the Company
General Counsel
Citizens Communications Company
Three Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Winston & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(b) A written notice (a "Notice of Termination") of the Executive's Date
of Termination by the Company or the Executive, as the case may be, to the
other, shall (i) indicate the specific termination provision in this Agreement
relied upon, (ii) to the extent applicable, set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated and (iii) specify the
termination date. The failure by the Executive or the Company to set forth in
such notice any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company
hereunder or preclude the Executive or the Company from asserting such fact
or circumstance in enforcing the Executive's or the Company's rights hereunder.
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15. Full Settlement; Resolution of Disputes.
(a) The Company's obligation to make any payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take other
action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement and, such amounts shall not be reduced whether
or not the Executive obtains other employment.
(b) If there shall be any dispute between the Company and the Executive
in the event of any termination of the Executive's employment then, until there
is a final, nonappealable, determination pursuant to arbitration declaring that
such termination was for Cause, that the determination by the Executive of the
existence of Good Reason was not made in good faith, or that the Company is not
otherwise obligated to pay any amount or provide any benefit to the Executive
and his dependents or other beneficiaries, as the case may be, under Section 3,
4(a), or 5, the Company shall pay all amounts, and provide all benefits, to the
Executive and his dependents or other beneficiaries, as the case may be, that
the Company would be required to pay or provide pursuant to Section 3, 4(a), or
5 as though such termination were by the Company without Cause or by the
Executive with Good Reason; provided, however, that the Company shall not be
required to pay any disputed amounts pursuant to this paragraph except upon
receipt of an undertaking by or on behalf of the Executive to repay all such
amounts to which the Executive is ultimately determined by the arbitrator not to
be entitled.
16. Release. In exchange for the incentive award benefits described in
Section 3, and for other consideration provided to the Executive pursuant to
this Agreement, the Executive, with the intention of binding himself and his
heirs, executors, administrators, assigns and legal representatives, hereby
releases and forever discharges the Company and any subsidiary entity of the
Company, and all of its or their current, former and future officers, directors,
shareholders, employees, attorneys, agents, predecessors, successors, assigns
and legal representatives, and the pension and welfare benefit plans in which
the Company participates and their respective administrators, fiduciaries,
trustees and insurers, whether acting as agents for the Company or in an
individual capacity, from any and all claims, demands, causes of action and
liabilities whatsoever, other than a breach of this Agreement, whether known or
unknown, asserted or unasserted, whether based on tort, contract or any other
legal or equitable theory, and whether for compensatory, punitive or other
damages, remedies or relief, that the Executive ever had or now has by reason of
any act, omission, transaction or occurrence on or before the date of this
Agreement, including, without limitation, any and all such claims arising out of
or in connection with Executive's employment with the Company, or the
termination of the Executive's employment, and any and all such claims under
state, federal, municipal, statutory or common law, including, without
limitation, Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss. 1981, the
Civil Rights Act of 1866, the Civil Rights Act of 1991, the Age Discrimination
in Employment Act, the Older Workers Benefit Protection Act, the American with
Disabilities Act, the Employee Retirement Income Security Act, the Fair Labor
Standards Act, the Family and Medical Leave Act, the Delaware Fair Employment
Practices Act, the Connecticut Human Rights and Opportunities Law, the
Connecticut Family and Medical Leave Law, the Connecticut Age Discrimination and
Employee Insurance Benefits Law, the Connecticut Smokers' Rights Law, and the
Connecticut Constitution, as such laws have been or may be amended.
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17. Revocation Period. The Executive acknowledges that the Company
specifically advised him in writing to consult with an attorney regarding this
Agreement, and that he has had 21 days in which to consider this Agreement. The
Executive further acknowledges that he has read this Agreement in its entirety,
and that he fully understands the terms and legal effect of this Agreement. If
the Executive executes this Agreement prior to the end of the 21-day period, the
Executive agrees that such early execution was completely voluntary. Further,
the Executive may revoke his assent to this Agreement at any time within seven
days of its execution, by providing written notice of such revocation in
accordance with Section 14(a) above. Notwithstanding anything contained in this
Agreement to the contrary, this Agreement will not become effective until after
the expiration of the seven-day revocation period.
18. Governing Law; Validity. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware without regard to the
principle of conflicts of laws. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which other provisions shall remain in
full force and effect.
19. Arbitration; Equitable Remedies.
(a) Any dispute or controversy under this Agreement shall be settled
exclusively by arbitration in Stamford, Connecticut by a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect; provided, however, that the Executive shall be entitled to seek specific
performance of his right to be paid pursuant to Section 15(b) during a dispute.
Judgment may be entered on the arbitration award in any court having
jurisdiction. The Company shall bear all costs and expenses arising in
connection with any arbitration proceeding pursuant to this Section.
(b) Notwithstanding any provision herein to the contrary, the Executive
acknowledges and agrees that the Company's remedy at law for any breach of the
covenants contained in Section 7 and 8 would be inadequate and that for any
breach of such covenants the Company shall, in addition to such other remedies
as may be available to it at law or in equity or as provided for in this
Agreement, be entitled to an injunction, restraining order, or other equitable
relief, without the necessity of posting a bond, restraining the Executive from
committing or continuing to commit any violation of such covenants. The
Executive shall, in addition to such other remedies as may be available to him
at law or in equity or as provided for in this Agreement, be entitled to an
injunction, restraining order, or other equitable relief, without the necessity
of posting a bond, restraining the Company from committing or continuing to
commit any violation of the covenants in Section 7.
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20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
21. Miscellaneous. No provision of this Agreement may be modified or waived
unless such modification is agreed to in writing and signed by the Executive and
by a duly authorized officer of the Company, or such waiver is signed by the
waiving party. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. Failure by the Executive or the Company or insist upon strict
compliance with any provision of this Agreement or to assert any right the
Executive or the Company may have hereunder, including without limitation, the
right of the Executive to terminate employment for Good Reason, shall not be
deemed to be a waiver of such provision or right or any other provision or right
of this Agreement. The rights of, and benefits payable to, the Executive, his
estate or his beneficiaries pursuant to this Agreement are in addition to any
rights of, or benefits payable to, the Executive, his estate or his
beneficiaries under any other employee benefit plan or compensation program of
the Company. No agreements or representations, oral or otherwise, express or
implied, with regard to the subject matter hereof have been made by either party
which are not expressly set forth in this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
a duly authorized officer of the Company. The Executive has executed this
Agreement as of the day written below.
CITIZENS COMMUNICATIONS COMPANY
By: /s/ Xxxxxxx Xxx
----------------------------
Xxxxxxx Xxx
Chief Executive Officer and
Chairman of the Board of Directors and
Principal Executive Officer
Agreed to this 11th day of March, 2004.
/s/ Xxxxx X. Xxxxxxxxx
----------------------
Xxxxx X. Xxxxxxxxx
Vice Chairmen of the Board, President and Chief
Operating Officer and Director
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