Exhibit 10-2
EMPLOYMENT AGREEMENT
AGREEMENT made by and between ACC CORP., 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxx 00000 ("ACC") and Xxxxx X. Xxxxxx, residing at 00 Xxxxxxx Xxxx, Xxxx, Xxx
Xxxx 00000 ("Employee").
1. DEFINITIONS. The following terms shall have the following meanings
in this Agreement:
(a) "ACQUIRING ENTITY" shall mean any entity, whether a corporation,
partnership, joint venture, etc., that, as a result of a Change In Control,
either directly or indirectly has effective control over the business plans,
direction and operations of ACC Corp. This term shall also include any
subsidiaries or related entities over which the Acquiring Entity has control,
and shall also include any entity that, within one year following a Change In
Control of ACC Corp., acquires control over the entity that acquired control of
ACC Corp.
(b) "BENEFITS" shall mean all benefits described in Paragraph 4 hereof.
The term "Benefits" does not include any amounts deemed Compensation, nor the
continuation of any disability, health, dental or life insurance coverage
beyond the terms of the policies for such insurance as the same may exist on
the effective date of an Event of Termination.
(c) "CHANGE IN RESPONSIBILITIES" shall mean that the Company's Board of
Directors, in circumstances NOT involving a Change in Control, takes action so
as to significantly reduce the nature or scope of Employee's authority, power,
functions or duties contemplated in Paragraph 2 hereof.
(d) "CHANGE IN CONTROL" shall mean a change in control of ACC Corp. of
a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934 as in effect on the date of this Agreement or, if in the future Item 6(e)
is no longer in effect, any regulations issued by the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934 which serve similar
purposes; provided that, without limitation, a Change In Control shall be
deemed to have occurred if and when: (x) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934), other than
the Employee, is or becomes a beneficial owner, directly or indirectly, of
securities of ACC Corp. representing a majority of the combined voting power of
ACC Corp.'s then outstanding securities (excluding, however, the transfer of
any shares beneficially owned by the Employee); or (y) individuals who were
members of the Board of Directors of ACC Corp. immediately prior to a meeting
of the shareholders of ACC Corp. involving a contest for the election of
Directors shall not constitute a majority of the Board of Directors following
such election. The effective date of any such Change in Control shall be the
closing date of the transaction that results in the Change in Control. The
terms of this subparagraph (c) shall also apply to any change in control of any
entity that acquires control of an Acquiring Entity within one year following
the acquisition by the Acquiring Entity of control of ACC Corp.
(e) "COMMITTEE" shall mean the Executive Compensation Committee of the
ACC Corp. Board of Directors.
(f) "COMPANY" shall mean ACC Corp. and/or any of its subsidiaries
and/or affiliates incorporated under the laws of any state of the United States
as the same may exist from time to time; EXCEPT that, for purposes of
Paragraphs 13 and 14 hereof, "Company" shall mean ACC Corp. and/or any of its
subsidiaries and/or affiliates as the same may exist from time to time anywhere
in the world, regardless of the laws under which incorporated.
(g) "COMPENSATION" shall mean the Employee's salary, accrued bonuses,
if any, and any stock options held by or awards granted to Employee under the
Company's Employee Long Term Incentive Plan or other stock option or similar
Company plan in effect from time to time, and shall expressly include the items
described in Paragraph 3 hereof, but shall exclude any Benefits.
(h) "DISABILITY" shall mean the Employee's total inability, due to a
mental or physical illness, incapacity or injury, to render his full-time
services to the Company for any period of 60 consecutive days or, if longer,
such period of time as is necessary for the Employee to be deemed "totally
disabled" or the equivalent thereof within the meaning of any long-term
disability insurance provided by the Company and covering the Employee.
(i) "EVENT OF TERMINATION" shall mean the termination of Employee's
employment, whether due to a Termination For Cause, a Termination Without
Cause, a Change In Control, a Change in Responsibilities or a Voluntary
Termination of Employment by Employee, such that Employee is no longer employed
by the Company.
(j) "TERMINATION FOR CAUSE" shall mean that the Company, in its sole
discretion, terminates Employee's employment due to Employee's personal
dishonesty, incompetence, willful misconduct, breach of a fiduciary duty
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, regulation or final cease and desist order,
the penalty for which constitutes a felony under applicable law; or any breach
of Paragraphs 13 or 14 of this Agreement. For purposes of this subparagraph
1(j), no act or failure to act on Employee's part shall be considered
"intentionally done" or "willfully done" unless done or omitted to be done by
Employee in bad faith and without reasonable belief that such act or omission
was in the best interests of the Company. Notwithstanding the foregoing,
Employee shall not be deemed to have been Terminated For Cause unless and until
there shall have been delivered to him/her a copy of a resolution duly adopted
by the affirmative vote of a majority of the entire Board of Directors (or, in
the event that Employee is a Director, then by the affirmative vote of a
majority of the non-employee Directors then in office) at a Board meeting duly
called and held for that purpose (after reasonable notice to Employee and an
opportunity for Employee, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, Employee was
guilty of conduct set forth in this subparagraph 1(j) and specifying the
particulars thereof in reasonable detail.
(k) "TERMINATION WITHOUT CAUSE" shall mean that the Company, in its
sole discretion, terminates the Employee's employment not for any reason that
would constitute a Termination For Cause, nor as a result of any Change In
Control, nor as a result of a Voluntary Termination of Employment by the
Employee.
(l) "VOLUNTARY TERMINATION OF EMPLOYMENT BY EMPLOYEE" shall mean that
Employee, at his volition, leaves his employment with the Company under
circumstances not involving a Termination Without Cause, a Termination For
Cause, a Change In Control or a Change in Responsibilities.
2. EMPLOYMENT AND DUTIES. The Company hereby employs Employee, and
Employee hereby accepts such employment and agrees to perform the duties as
hereinafter set forth. Employee shall serve as the Chief Executive Officer of
the Company responsible for the overall business and strategic planning,
management and control of the Company, and as an officer of any of the
Company's subsidiaries or affiliates as the same may exist from time to time
during the "Term" of this Agreement, as defined below. Employee shall devote
his entire working time and attention to the business of the Company, and shall
perform his duties in a diligent, effective and loyal manner.
3. COMPENSATION. The Company shall compensate Employee for all
services to be rendered by him pursuant to this Agreement in the following
manner:
(a) A base salary of $300,000 per year, to be paid on a weekly
basis during the Term of this Agreement.
(b) A bonus payable annually in addition to Employee's base
salary, the amount of which shall be determined by the Company's Board of
Directors, on the recommendation of the Committee, based upon the
Company's Annual Incentive Plan.
(c) As additional consideration for entering into this
Agreement, the Committee shall grant Employee options to purchase a total
of 68,000 shares of the Company's Class A Common Stock all with an
exercise price equal to $17.25 per share (the closing price for the
Company's Common Stock in Nasdaq trading on October 4, 1995) under its
Employee Long Term Incentive Plan. Of this total, (i) 17,391 shall be
Incentive Stock Options, one-third of which shall vest immediately upon
their date of grant, an additional one-third of which shall vest on the
first anniversary of their date of grant, and the last one-third of which
shall vest on the second anniversary of their date of grant; and (ii)
50,609 options shall be non-qualified stock options, one-half of which
shall become exercisable in full at such time as the closing price for
the Company's stock in Nasdaq trading is at or above a level that
represents a 25% increase over the exercise price of such options for a
period of 15 consecutive trading days, and the balance of which shall
become exercisable in full at such time as the closing price for the
Company's stock in Nasdaq trading is at or above a level that represents
a 50% increase over the exercise price of such options for a period of 15
consecutive trading days.
4. BENEFITS. During the Term of this Agreement as defined below,
Employee shall be entitled to receive the following benefits:
(a) Four weeks of paid vacation per year, or such greater period
as may be approved from time to time by the Committee;
(b) paid holidays as customarily provided to the Company's other
employees;
(c) coverage in accordance with their terms of any pension or
profit-sharing plans now existing or hereafter established by the
Company;
(d) life insurance coverage in such amounts and on such terms as
are provided from time to time to the Company's senior executives;
(e) reimbursement of miscellaneous medical, legal, and financial
planning expenses, up to $4,000 per year;
(f) payment of Employee's business and professional dues as
reasonably requested by Employee, plus the initiation fees and membership
dues and expenses related to membership at the Genesee Valley Club; and
(g) reimbursement of reasonable and customary business expenses
incurred on the Company's behalf, upon presentation of documentation of
such expenses reasonably acceptable to the Company.
5. TERM. This Agreement shall be effective for a period of two years
from the execution date hereof (the "Term").
6. TERMINATION OF EMPLOYMENT FOR CAUSE. In the event that the
Employee's employment is Terminated For Cause, he shall not be entitled to
receive any payments hereunder. Under these circumstances, the Employee shall
only be entitled to receive his accrued but unpaid salary and any other
nonforfeitable Compensation and Benefits accrued as of the effective date of
such Event of Termination.
7. TERMINATION OF EMPLOYMENT WITHOUT CAUSE. In the event that the
Company terminates Employee's employment Without Cause, the Employee shall be
entitled to receive his then-current Compensation and Benefits for the
remainder of the Term of this Agreement; PROVIDED, however, that the Employee
is and at all times hereunder remains in compliance with Paragraphs 13 and 14
hereof. For purposes of this Paragraph, the term "Compensation" shall also
include the payment (in a lump sum at the end of such year or in equal monthly
installments over the course of the next succeeding year, at the Company's
election and in either case without interest) of the pro-rated amount of the
bonus, if any, that Employee would receive for the calendar year in which this
Event of Termination occurs as determined under the Company's Annual Incentive
Plan as established by the Committee in advance for that calendar year; such
amount to be pro-rated by multiplying the amount of such bonus for the full
year by a fraction the numerator of which is the number of months worked by the
Employee during that calendar year through the effective date of this Event of
Termination and the denominator of which is 12. Such payments shall be made on
the Company's normal payroll schedule, EXCEPT THAT at any time during such
period, Employee may give notice to the Company or an Acquiring Entity, as the
case may be, requesting payment of the remaining amount of his Compensation and
Benefits in a lump sum payment, which request the Company or the Acquiring
Entity may, at their sole discretion, agree to or reject. If this request is
agreed to by the Company or the Acquiring Entity, as the case may be, then such
lump sum payment shall be paid to Employee within 30 days following receipt of
such notice, subject to the Company's receipt of an executed release from
Employee, substantially in the form attached as Exhibit A hereto, prior to the
payment of any such lump sum payment. In any event, should Employee commence
other employment within such period, he shall promptly notify the Company or
the Acquiring Entity of such event and the Company or the Acquiring Entity may
at its option, within 30 days following receipt of such notice, pay the
Employee the remaining amount of his Compensation and Benefits in a lump sum
payment. If Employee's employment is Terminated Without Cause at any time
within one year following a Change in Control, such termination shall
automatically be deemed to be a Termination in the Event of a Change in
Control, and Employee shall be entitled to all rights set forth in Paragraph 10
hereof. If Employee should commence other employment with an entity that the
Company deems a competitor as described in subparagraph 13(c) below, then the
Company shall have the right to stop further payment of any and all
Compensation and Benefits that may be payable to Employee hereunder.
8. VOLUNTARY TERMINATION OF EMPLOYMENT BY EMPLOYEE. In the event of
a Voluntary Termination of Employment by the Employee, he shall not be entitled
to receive any payments hereunder. Under such circumstances, the Employee
shall only be entitled to receive his accrued but unpaid salary and any other
nonforfeitable Compensation and Benefits accrued as of the effective date of
such Event of Termination.
9. TERMINATION BY EMPLOYEE DUE TO CHANGE IN RESPONSIBILITIES.
Employee may elect to terminate his employment during the Term hereof in the
event of a Change in Responsibilities. In such event, Employee shall be
entitled to receive his then-current Compensation and Benefits for the
remainder of the Term of this Agreement; PROVIDED, however, that the Employee
is and at all times hereunder remains in compliance with Paragraphs 13 and 14
hereof. For purposes of this Paragraph, the term "Compensation" shall also
include the payment (in a lump sum by the end of such year or in equal monthly
installments over the course of the next succeeding year, at the Company's
election and in either case without interest) of the pro-rated amount of the
bonus, if any, that Employee would receive for the calendar year in which this
Event of Termination occurs as determined under the Company's Annual Incentive
Plan as established by the Committee in advance for that calendar year; such
amount to be pro-rated by multiplying the amount of such bonus for the full
year by a fraction the numerator of which is the number of months worked by the
Employee during that calendar year through the effective date of this Event of
Termination and the denominator of which is 12. Such payments shall be made on
the Company's normal payroll schedule. If Employee should commence other
employment with an entity that the Company deems a competitor as described in
subparagraph 13(c) below, then the Company shall have the right to stop further
payment of any and all Compensation and Benefits that may be payable to
Employee hereunder.
10. TERMINATION OF EMPLOYEE'S EMPLOYMENT IN THE EVENT OF A CHANGE IN
CONTROL. If, in connection with preparing for, or within one year following, a
Change In Control: (i) the Employee's employment with the Company or the
Acquiring Entity is Terminated Without Cause by the Company or the Acquiring
Entity; or (ii) the Employee resigns his employment with the Company or with
the Acquiring Entity upon the occurrence of any of the following:
(a) A significant change in the nature or scope of Employee's
employment duties or authority including, but not limited to, without
Employee's prior written consent assigning Employee duties inconsistent
with his status within the Company or substantially altering Employee's
duties and responsibilities so as to render his position to be of less
dignity, responsibility or scope;
(b) Employee being required by the Company or the Acquiring
Entity, as a condition of employment, to take up permanent residence
outside of or to spend more than 25% of his time in any location that is
more than a 50 mile radius from the Rochester, New York metropolitan area
(except for required travel on Company business to an extent
substantially consistent with Employee's customary business travel
obligations);
(c) A reduction in Employee's Compensation or Benefits as in
effect on the execution date hereof or as the same may be increased from
time to time, excluding, however, (i) reductions in bonuses paid from
year to year when such bonuses are based upon objective performance
criteria (E.G., increases in earnings per share, return on equity, etc.)
established in advance by the Board of Directors or Executive
Compensation or comparable Committee of the Board of ACC Corp. or an
Acquiring Entity, as the case may be; and (ii) proportional across-the-
board Compensation or Benefits reductions similarly affecting all
executives and/or key employees of the Company or the Acquiring Entity,
as the case may be; provided, however, that in no event shall Employee's
Compensation be reduced below its current annual amount as in effect on
the execution date hereof without Employee's prior written consent;
(d) Failure to grant Employee an annual salary increase
reasonably necessary to maintain such salary as comparable to salaries of
key employees holding positions equivalent to Employee's in the industry
in which the Company's then-principal business activity is conducted;
(e) Failure by the Company or an Acquiring Entity, as the case
may be, to continue in effect any compensation plan, program or
arrangement in which Employee then participates unless an equitable
arrangement reasonably acceptable to Employee and embodied in an ongoing
substitute or alternative plan, program or arrangement has been made with
respect to such plan, or the failure to continue Employee's
participation therein;
(f) Any material reduction by the Company or an Acquiring Entity,
as the case may be, of any of the Benefits enjoyed by Employee under any
of the Company's pension, retirement, profit sharing, savings, life
insurance, medical, health and accident, disability or other employee
benefit plans, programs or arrangements as in effect from time to time,
the taking of any action by the Company or an Acquiring Entity, as the
case may be, that would directly or indirectly materially reduce any of
such Benefits or deprive Employee of any such Benefits, or the failure by
the Company or an Acquiring Entity, as the case may be, to provide
Employee with the number of paid vacation days to which he/she is
entitled on the basis of years of service with the Company in accordance
with its normal vacation policy; provided, however, that this
subparagraph shall not apply to any proportional across-the-board
reduction or action similarly affecting all executives and/or key
employees of the Company or an Acquiring Entity, as the case may be;
(g) Failure of the Company to obtain a satisfactory agreement
from any Acquiring Entity to assume and agree to perform this Agreement;
then Employee shall be entitled to receive his then-current Compensation and
Benefits as were in effect immediately prior to any such Change In Control for
the remainder of the Term of this Agreement; PROVIDED, however, that Employee
is and at all times hereunder remains in compliance with Paragraphs 13 and 14
hereof. For purposes of this Paragraph, the term "Compensation" shall also
include the payment (in a lump sum by the end of such year or in equal monthly
installments over the course of the next succeeding year, at Employee's
election and in either case without interest) of the amount of the bonus that
Employee would receive for the full calendar year in which this Event of
Termination occurs based on the "Maximum" amount of such bonus as determined
under the Company's Annual Incentive Plan as established by the Committee in
advance for that calendar year. Such payments shall be made on the normal
payroll schedule of the Company or the Acquiring Entity, as the case may be,
EXCEPT THAT at any time during such period, Employee shall have the right, upon
notice to the Company or an Acquiring Entity, as the case may be, to elect to
be paid the remaining amount of his Compensation and Benefits in a lump sum
payment, which the Company or the Acquiring Entity must then pay to Employee
within 30 days following receipt of such notice, subject to receipt by the
Company or the Acquiring Entity of an executed release from Employee,
substantially in the form attached as Exhibit A hereto, prior to the payment of
such lump sum payment. In no event shall the compensation to which Employee is
entitled under this Paragraph be less than the greater of (i) Employee's then-
current Compensation and Benefits as were in effect immediately prior to the
effective date of such resignation or Termination Without Cause, or (ii)
Employee's then-current Compensation and Benefits as were in effect immediately
prior to the date of the Change In Control.
11. ADDITIONAL TERMINATION PAYMENTS. In the event that Employee is
Terminated Without Cause, or in connection with a Change in Control, or
Employee elects to terminate his employment due to a Change in
Responsibilities, then he shall also be entitled to the following additional
payments and benefits:
(i) On the effective date of any such Event of Termination, all
Incentive Stock Options that shall have been granted to Employee through
such date under the Company's Employee Long Term Incentive Plan shall be
deemed fully vested and exercisable on such date and for a period of one
year following such date, and all Non-Qualified Stock Options that shall
have been granted to Employee under this Plan AND which shall have vested
as to exercisability through such date shall remain exercisable for a
period of one year following such date, all in accordance with the other
terms of such Plan.
12. DEATH. In the event that Employee shall die before the end of the
Term hereof, the obligation to accrue further benefits under this Agreement
shall cease as of the date of death, save for any benefits accrued but unpaid
as of the date of death, which benefits shall remain payable to Employee's
estate.
13. COVENANT NOT TO COMPETE. Employee hereby covenants and agrees that
(i) during the Term of this Agreement, (ii) if no Event of Termination occurs
during the Term hereof, then for one year following the Term of this Agreement,
and (iii) should an Event of Termination occur during the second year of the
Term hereof, then for one year following the effective date of such Event of
Termination:
(a) He will not, for himself or on behalf of any other person,
firm, partnership or corporation call upon any customer of the Company
for the purpose of soliciting or providing to such customer any products
or services which are the same as or substantially similar to those
provided to customers by the Company. For purposes of this Agreement,
"customers of the Company" shall include, but not be limited to, all
customers contacted or solicited by the Company or Employee within 12
months prior to the end of the Term of this Agreement.
(b) Employee will not, directly or through another person or
entity, for himself or on behalf of any other person, firm, partnership
or corporation, directly or indirectly, seek to persuade any Director,
officer, or employee of the Company to discontinue that individual's
status or employment with the Company.
(c) Employee will not, directly or indirectly, alone or as an
employee, independent contractor of any type, partner, officer, director,
creditor, substantial (i.e., 5% or greater) stockholder or holder of any
option or right to become a substantial stockholder in any entity or
organization, engage (i) in the long distance telecommunications business
as conducted by the Company in the United States, Canada and Europe
during the term of this Covenant Not To Compete or (ii) in substantial
and direct competition with any other business operation actively
conducted by the Company during the term of this Covenant Not To Compete,
in any business pertaining to the sale, distribution, manufacture,
marketing, production or provision of products or services similar to or
in competition with any products or services produced, designed,
manufactured, sold, distributed or rendered, as the case may be, by the
Company; nor for the same period of time, within the same area and under
the same conditions as previously set forth, shall Employee advance
credit, lend money, furnish quarters or give advice, directly or
indirectly, to any person, corporation or business entity of any kind
(other than the Company) which is engaged in any such business or
operation, nor shall he, directly or indirectly, ship or cause to be
shipped or have any part in the shipping of such products to any point
within said area for the purposes of resale; provided, however, that
nothing contained in this Paragraph shall prevent Employee from investing
in corporate securities which are traded on a recognized stock exchange
(subject to a 5% ceiling on any such investment as referenced in the
first sentence of this subparagraph).
(d) If any of the restrictions on competitive activities
contained in this Paragraph 13 shall for any reason be held by a court of
competent jurisdiction to be excessively broad as to duration,
geographical scope, activity or subject, such restrictions shall be
construed so as to be enforceable to the extent compatible with
applicable law as it shall then exist; it being understood that by the
execution of this Agreement the parties hereto regard such restrictions
as reasonable and compatible with their respective rights and
expectations.
(e) Additionally, if any conduct prohibited by this Paragraph 13
is approved by the ACC Corp. Board of Directors, then such conduct shall
not constitute a breach of this Agreement.
14. TRADE SECRETS; NON DISPARAGEMENT. Except as may be required by his
employment with the Company, Employee will not at any time or in any manner,
directly or indirectly, divulge, disclose or communicate to any person, firm,
corporation, organization or entity any information concerning matters
affecting or relating to the services, marketing, contractual relationships,
long range plans, products, processes, formulas, inventions, discoveries,
devices or other business of the Company or of its customers. Employee will
likewise hold inviolate and keep secret all knowledge or information acquired
by him concerning the names of the Company's customers, their addresses, the
prices the Company obtains or has obtained from them for its goods or services,
all knowledge or information acquired by him concerning the products, formulas,
processes, methods of manufacture and distribution and all other trade secrets
of such customers. In addition, Employee shall make no disclosure, directly or
indirectly, of any financial information, contractual relationships, policies,
past or contemplated future actions or policies of the Company, personnel
matters, marketing or sales data, technical data or specifications and written
or oral communications of any sort of the Company or any of its customers which
have not previously been disclosed to the general public with the Company's
consent or without first obtaining the consent of the Company for such
disclosure. Upon the occurrence of any Event of Termination, Employee or his
representatives shall immediately deliver to the Company all notes, notebooks,
letters, papers, drawings, memos, communications, blueprints or other writings
or data relating to the business of the Company or its customers.
Additionally, Employee shall not in any way publicly disparage the Company at
any time or he shall not be entitled to receive payment of any further
Compensation and Benefits otherwise payable hereunder. Likewise, neither the
Company nor any Acquiring Entity shall in any way publicly disparage Employee
at any time. (For purposes of this Agreement, however, the commencement of any
legal proceedings involving matters such as Employee's performance, conduct,
etc., shall not constitute "disparagement.")
15. INJUNCTIVE RELIEF.
(a) Because Employee shall acquire by reason of his employment and
association with the Company an extensive knowledge of its trade secrets,
customers, procedures, and other confidential information, the parties hereto
recognize that in the event of a breach or threat of breach by Employee of the
terms and provisions contained in Paragraphs 13 or 14, compensation alone to
the Company would not be a adequate remedy for a breach of those terms and
provisions. Therefore, it is agreed that in the event of a breach or threat of
a breach of the provisions of Paragraphs 13 or 14 by Employee, the Company
shall be entitled, in addition to (i) terminating further payment of any
Compensation and Benefits that may be payable to Employee hereunder and (ii)
provable damages and reasonable attorneys' fees, to an immediate injunction
from any court of competent jurisdiction restraining Employee from committing
or continuing to commit a breach of such provisions without the showing or
proving of actual damages. Any preliminary injunction or restraining order
shall continue in full force and effect until any and all disputes between the
parties regarding this Agreement have been finally resolved on the merits by
settlement or by a court of law.(b)In the event of a breach or threat of a
breach of the provisions of Paragraphs 13 or 14 by the Employee, the Company
can terminate further payment of any and all Compensation and Benefits that may
be payable to the Employee hereunder, regardless of whether the Company seeks
or obtains injunctive relief under subparagraph 15(a) above.
16. SPECIAL PROVISIONS IN EVENT OF DISABILITY.
(a) During the Term hereof, in the event that the Employee becomes
Disabled as defined in this Agreement, but for meeting the requirement that
such a condition persist for a minimum of 60 consecutive days, then the Company
agrees that it will not, except in a situation constituting a Termination For
Cause, terminate the Employee's employment or otherwise act so as to deprive
the Employee of his eligibility to receive benefits under any Company-provided
disability insurance policy. In all such circumstances, however, the Company
retains the right to Terminate the Employee For Cause, at any time.
(b) If the Employee is Terminated Without Cause after he begins
receiving disability insurance payments under any Company-provided disability
insurance policy, then he shall also be entitled to receive his Compensation
and Benefits payable in the event of a Termination Without Cause, LIMITED,
HOWEVER, to the net amount, if any, by which such termination payments, on a
monthly basis, exceed the monthly benefits payable to the Employee under such
disability insurance policy.
(c) Except as otherwise specifically provided in this Paragraph, the
provisions of this Paragraph 16 shall not apply in the event that any Event of
Termination under this Agreement shall first occur. Additionally, the Employee
shall only be entitled to receive the Benefits provided by this Paragraph 16 if
he is and at all times hereunder remains in compliance with Paragraphs 13 and
14 hereof.
17. ABSENCE OF RESTRICTIONS. Employee represents and warrants that he
is not prevented or restricted from entering into an employment relationship
with the Company by any agreement with or obligation to any person, firm or
entity or by any other disability or restraint, including, but not limited to,
the order, judgment or decree of any court or governmental agency. Employee
hereby agrees to indemnify and hold the Company harmless from any and all
expenses, losses or damages it may incur, including, but not limited to, all
expenses of defense and attorneys' fees, caused by reason of Employee's breach
of the covenants contained in this Paragraph.
18. SURVIVAL. The provisions of Xxxxxxxxx 00, XXXXXXXX NOT TO COMPETE,
shall survive for one year following the Term of this Agreement; the provisions
of Paragraph 14, TRADE SECRETS, shall indefinitely survive the Term of this
Agreement, and the provisions of Paragraphs 15, INJUNCTIVE RELIEF, and 19,
GENERAL TERMS, shall survive the Term of this Agreement for so long as
necessary to enable the Company to enforce any of the provisions of Paragraphs
13, 14 or 15 hereof.
19. GENERAL TERMS.
(a) NOTICES. Any notice required or desired to be given hereunder
shall be in writing and shall be deemed to have been duly given (i) upon hand
delivery, or (ii) on the third day following delivery to the U.S. Postal
Service as certified mail, return receipt requested and postage prepaid, or
(iii) on the first day following delivery to a recognized overnight courier
service, fee prepaid, return receipt or other confirmation of delivery
requested. Any such notice shall be delivered or directed to a party at its
address previously set forth in this Agreement or to such other address as a
party may specify by notice given to the other party hereto in accordance with
the provisions of this paragraph.
(b) BINDING EFFECT. This Agreement and the rights and obligations
contained herein shall be binding upon and inure to the benefit of the Company,
its successors and assigns, including any Acquiring Entity, and upon Employee,
his legal representatives, heirs and distributees.
(c) ASSIGNMENT. This Agreement may not be assigned, in whole or in
part, by either party hereto without the prior written consent of the other
party.
(d) ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto and supersedes any prior understanding, memoranda or
other written or oral agreements between them respecting the within subject
matter. There are no representations, agreements, arrangements or
understandings, oral or written, between the parties relating to the subject
matter of this Agreement which are not fully expressed herein.
(e) MODIFICATIONS; WAIVER. Any modification or waiver of this
Agreement must be in writing and signed by both parties to be effective. No
waiver of any breach or condition of this Agreement shall be deemed to be a
waiver of any other or subsequent breach or condition, whether of like or
different nature. No course of dealing between the parties hereto will be
deemed effective to modify, amend or discharge any part of this Agreement or
the rights or obligations of either party hereunder.
(f) PARTIAL INVALIDITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
(g) APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York applicable to contracts made
and to be performed wholly within New York State, without giving effect to
conflict of laws principles.
(h) JURISDICTION AND VENUE. In the event that any legal proceedings
are commenced in any court with respect to any matter arising under this
Agreement, the parties hereto specifically consent and agree that the courts of
the State of New York and/or the Federal Courts located in the State of New
York shall have jurisdiction over each of the parties hereto and over the
subject matter of any such proceedings, and the venue of any such action shall
be in Monroe County, New York and/or the U.S. District Court for the Western
District of New York.
(i) HEADINGS. The headings contained in this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
(j) COUNTERPARTS. This Agreement may be executed in more than one
counterpart, each one of which will be deemed an original and all of which
shall constitute one and the same instrument.
(k) ARBITRATION. In the event that any disagreement or dispute should
arise between the parties hereto with respect to this Agreement, then such
disagreement or dispute shall be submitted to arbitration in Rochester, New
York in accordance with the rules then pertaining to the American Arbitration
Association with respect to commercial disputes. Judgment upon any resulting
award may, after its rendering, be entered in any court of competent
jurisdiction by either party. After any demand for arbitration pursuant to
this Agreement and prior to any scheduled arbitration date, either party to
such arbitration proceedings shall be entitled to discovery according to the
provisions and within the time limits prescribed in Article 31 of the New York
Civil Practice Law and Rules with respect to all materials and records in the
possession of either party hereto, or in the possession of others, which are
relevant to the matter or matters to be arbitrated.
(l) REMEDIES. All rights and remedies of the Company or Employee,
whether provided for herein or by operation of law, are cumulative and may be
exercised singularly or concurrently, and the exercise of any such remedy shall
not be deemed an election of remedies so as to preclude the election of any
other remedy.
(m) NAMED FIDUCIARY. The Board of Directors of ACC Corp. or of an
Acquiring Entity, as the case may be, is hereby designated as the named
fiduciary ("Named Fiduciary") under this Agreement. The Named Fiduciary shall
have authority to operate and administer this Agreement, and it shall be
responsible for establishing and carrying out a funding policy, if any, and
method consistent with the objectives of this Agreement.
(n) CLAIMS PROCEDURE. The Named Fiduciary shall make all
determinations regarding disputes between the Company or the Acquiring Entity,
as the case may be, and Employee as to Employee's rights under this Agreement.
Any such determination by the Named Fiduciary shall be stated in writing and
delivered or mailed to Employee or his estate, as the case may be, within 30
days following the Company or the Acquiring Entity becoming aware of such
dispute. This communication shall set forth the specific reason(s) for the
determination, written to the best of the Named Fiduciary's ability in a manner
that can be understood without legal or actuarial counsel. In addition, the
Named Fiduciary shall afford a reasonable opportunity to Employee or his
estate, as the case may be, for a full and fair review of the determination.
If Employee or his estate disagrees with the determination, or any part
thereof, or if a determination is not received by Employee or his estate within
the 30 day period set forth above, then Employee or his estate may seek
judicial relief.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of October 6, 1995.
EMPLOYEE ACC CORP.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
Title: EVP & CFO
EXHIBIT A
[Date]
[Name and Address
of Employee]
Dear :
You and ACC Corp. (the "Company") are parties to an Employment Agreement
dated ___________, 199_ (the "Employment Agreement"). You have requested a
lump-sum payment of all remaining Compensation and Benefits (as those terms are
defined in the Employment Agreement) payable to you under the terms of the
Employment Agreement, pursuant to either Paragraph 7 or Paragraph 10 thereof.
In consideration for the receipt of such lump-sum payment from the Company, you
hereby agree to the following:
1) This Agreement is intended to settle fully and finally all claims,
controversies, disputes and other matters between you and the Company.
Accordingly, as a material inducement to the Company to enter into this
Agreement and in consideration for the above lump-sum payment, you agree to
forever release, acquit and discharge the Company, and its employees, officers,
representatives, attorneys, directors and shareholders and their predecessors,
successors and assigns from and against any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts and
expenses of any nature whatsoever, known or unknown, suspected or unsuspected
and all claims for attorney's fees, costs, disbursements, and expert witness
fees which you now have, own or hold or claim to have, own or hold or which you
owned or claimed to have, own or hold, including, but not limited to those
relating to or arising out of:
(a) your employment with the Company;
(b) your termination of employment with the Company;
(c) claims relating to wages, payments and benefits except as set forth
herein;
(d) the New York Labor Law, the New York State Human Rights Law, the
New York State Lawful Activities Act, Title VII of the Civil Rights
Act of 1964, Title IX of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Equal Pay Act, the Employee Retirement
Income Security Act of 1974, the Age Discrimination in Employment
Act of 1967, as amended, the Older Workers Benefit Protection Act
of 1990, the Rehabilitation Act of 1973, the Fair Labor Standards
Act, the Occupational Safety and Health Act, the Americans with
Disabilities Act, Federal Executive Order 11246 and all amendments
thereto, the Family and Medical Leave Act, New York Civil Rights
Law 70-a, and all regulations pertaining to all
such laws;
(e) any other federal, state or local law, rule or regulation; and
(f) all tort claims and all claims of wrongful or unjust termination,
defamation, prima facia tort, breach of or interference with
contract, promissory estoppel, intentional infliction of emotional
distress or breach of any express or implied covenant of good faith
and fair dealings.
You agree that the Company shall not have any obligation to you other than as
set forth in the Employment Agreement for any other monies or benefits
including, but not limited to, salary, benefits, bonus, or vacation or any
other obligation or agreement with the Company, whether such agreement may be
express or implied.
2. This Agreement shall not in any way be construed as an admission by
the Company that it or its officers, directors or employees have acted
wrongfully with respect to you or that you have any rights whatsoever against
the Company or its officers, directors or employees. This Agreement shall not
in any way be construed as an admission by you of any wrongdoing.
3. If you breach this Agreement, you acknowledge that all monies to be
paid by the Company hereunder shall immediately cease, and you shall
immediately return all monies paid pursuant to this Agreement or the Employment
Agreement. These rights are in addition to all other rights or remedies
provided to the Company in law or in equity by reason of your breach.
4. You are hereby advised of your right to consult with an attorney
before signing this Agreement and acknowledge that you have been given the
opportunity to consult with an attorney before signing it. Further, you
acknowledge that, as this Agreement was an Exhibit to the Employment Agreement
at the time you signed the Employment Agreement, you have had a draft of this
Agreement for more than 21 days to review it and consider its terms.
Additionally, you understand that you can revoke this Agreement at any time
within seven days following your execution of it, by written revocation notice
to the Company sent certified mail, return receipt requested. Therefore, you
understand and agree that the Company will not make any payment of the lump-
sum you have hereby requested until 28 days have passed from the date the
Company receives this Agreement signed by you.
Your signature below indicates your acceptance of this Agreement and
shall cause this Agreement to be binding upon you, your heirs, representatives
and assigns. Your signature shall also signify that you have read and
understand the Agreement, and that you either have reviewed it with your
attorney or have elected not to do so.
Very truly yours,
ACC Corp.
By:________________________________
Title: ______________________________
Accepted and Agreed to on this
day of , 199_
_________________________
Employee
