Exhibit (10)(iii)(A)(10)
EMPLOYMENT AGREEMENT
This Agreement is made as of the Effective Date between Broadwing
Inc. ("Employer"), and Xxxxxxx X. Xxxxxxxxx ("Employee"). For purposes of
this Agreement, the "Effective Date" is December 4, 2001.
Employer and Employee agree as follows:
1. EMPLOYMENT. By this Agreement, Employer and Employee set forth the
terms of Employer's employment of Employee on and after the Effective Date.
Any prior agreements or understandings with respect to Employee's employment
by Employer are canceled as of the Effective Date.
2. TERM OF AGREEMENT. The term of this Agreement initially shall be the
two-year period commencing on the Effective Date. On the first anniversary of
the Effective Date and on each subsequent anniversary of the Effective Date,
the term of this Agreement automatically shall be extended for a period of
one additional year. Notwithstanding the foregoing, the term of this
Agreement is subject to termination as provided in Section 13.
3. DUTIES.
A. Employee will serve as Senior Vice President, Corporate Development
for Employer or in such other equivalent capacity as may be designated by the
Chief Executive Officer of Employer. Employee will report to the Chief Executive
Officer of Employer or to such other officer as the Chief Executive Officer of
Employer may direct.
B. Employee shall furnish such managerial, executive, financial,
technical, and other skills, advice, and assistance in operating Employer and
its Affiliates as Employer may reasonably request. For purposes of this
Agreement, "Affiliate" means each corporation that is a member of a controlled
group of corporations (within the meaning of section 1563(a) of the Internal
Revenue Code of 1986, as amended (the "Code")) which includes Employer.
C. Employee shall also perform such other duties, consistent with the
provisions of Section 3.A., as are reasonably assigned to Employee by the Chief
Executive Officer of Employer.
D. Employee shall devote Employee's entire time, attention, and
energies to the business of Employer and its Affiliates. The words "entire time,
attention, and energies" are intended to mean that Employee shall devote
Employee's full effort during reasonable working hours to the business of
Employer and its Affiliates and shall devote at least 40 hours per week to the
business of Employer and its Affiliates. Employee shall travel to such places as
are necessary in the performance of Employee's duties.
4. COMPENSATION.
A. Employee shall receive a base salary (the "Base Salary") of at
least $250,000.00 per year, payable not less frequently than monthly, for
each year during the term of this Agreement, subject to proration for any
partial year. Such Base Salary, and all other amounts payable under this
Agreement, shall be subject to withholding as required by law.
B. In addition to the Base Salary, Employee shall be entitled to
receive an annual bonus (the "Bonus") for each calendar year for which services
are performed under this Agreement. Any Bonus for a calendar year shall be
payable after the conclusion of the calendar year in accordance with Employer's
regular bonus payment policies. Each year beginning in 2002, Employee shall be
given a Bonus target of not less than $100,000.00.
C. On at least an annual basis, Employee shall receive a formal
performance review and be considered for Base Salary and/or Bonus target
increases.
5. EXPENSES. All reasonable and necessary expenses incurred by Employee
in the course of the performance of Employee's duties to Employer shall be
reimbursable in accordance with Employer's then current travel and expense
policies.
6. BENEFITS.
A. While Employee remains in the employ of Employer, Employee shall
be entitled to participate in all of the various employee benefit plans and
programs, or equivalent plans and programs, which are made available to
similarly situated officers of Employer.
B. Notwithstanding anything contained herein to the contrary, the
Base Salary and Bonuses otherwise payable to Employee shall be reduced by any
benefits paid to Employee by Employer under any disability plans made available
to Employee by Employer.
C. As of the Effective Date, Employee shall be granted options to
purchase 100,000 common shares of Employer under Employer's 1997 Long Term
Incentive Plan. In each year of this Agreement after 2001, Employee will be
granted stock options under Employer's 1997 Long Term Incentive Plan or any
similar plan made available to employees of Employer at the same time options
are granted to all other officers of Employer.
7. CONFIDENTIALITY. Employer and its Affiliates are engaged in the
telecommunications industry within the U.S. Employee acknowledges that in the
course of employment with the Employer, Employee will be entrusted with or
obtain access to information proprietary to the Employer and its Affiliates with
respect to the following (all of which information is referred to hereinafter
collectively as the "Information"); the
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organization and 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 the Employer or its Affiliates;
technical data, plans and specifications, present and/or future development
projects of Employer and its Affiliates; financial and/or marketing data
respecting the conduct of the present or future phases of business of
Employer and its Affiliates; computer programs, systems and/or software;
ideas, inventions, trademarks, business information, know-how, processes,
improvements, designs, redesigns, discoveries and developments of Employer
and its Affiliates; and other information considered confidential by any of
the Employer, its Affiliates or customers or suppliers of Employer, its
Affiliates. Employee agrees to retain the Information in absolute confidence
and not to disclose the Information to any person or organization except as
required in the performance of Employee's duties for Employer, without the
express written consent of Employer; provided that Employee's obligation of
confidentiality shall not extend to any Information which becomes generally
available to the public other than as a result of disclosure by Employee.
8. NEW DEVELOPMENTS. All ideas, inventions, discoveries, concepts,
trademarks, or other developments or improvements, whether patentable or not,
conceived by the Employee, alone or with others, at any time during the term
of Employee's employment, whether or not during working hours or on
Employer's premises, which are within the scope of or related to the business
operations of Employer or its Affiliates ("New Developments"), shall be and
remain the exclusive property of Employer. Employee shall do all things
reasonably necessary to ensure ownership of such New Developments by
Employer, including the execution of documents assigning and transferring to
Employer, all of Employee's rights, title and interest in and to such New
Developments, and the execution of all documents required to enable Employer
to file and obtain patents, trademarks, and copyrights in the United States
and foreign countries on any of such New Developments.
9. SURRENDER OF MATERIAL UPON TERMINATION. Employee hereby agrees that
upon cessation of Employee's employment, for whatever reason and whether
voluntary or involuntary, Employee will immediately surrender to Employer all
of the property and other things of value in his possession or in the
possession of any person or entity under Employee's control that are the
property of Employer or any of its Affiliates, including without any
limitation all personal notes, drawings, manuals, documents, photographs, or
the like, including copies and derivatives thereof, relating directly or
indirectly to any confidential information or materials or New Developments,
or relating directly or indirectly to the business of Employer or any of its
Affiliates.
10. REMEDIES.
A. Employer and Employee hereby acknowledge and agree that the
services rendered by Employee to Employer, the information disclosed to
Employee during and
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by virtue of Employee's employment, and Employee's commitments and
obligations to Employer and its Affiliates herein are of a special, unique
and extraordinary character, and that the breach of any provision of this
Agreement by Employee will cause Employer irreparable injury and damage, and
consequently the Employer shall be entitled to, in addition to all other
remedies available to it, injunctive and equitable relief to prevent a breach
of Sections 7, 8, 9, 11 and 12 of this Agreement and to secure the
enforcement of this Agreement.
B. Except as provided in Section 10.A., the parties agree to submit
to final and binding arbitration any dispute, claim or controversy, whether for
breach of this Agreement or for violation of any of Employee's statutorily
created or protected rights, arising between the parties that either party would
have been otherwise entitled to file or pursue in court or before any
administrative agency (herein "claim"), and waives all right to xxx the other
party.
(i) This agreement to arbitrate and any resulting arbitration
award are enforceable under and subject to the Federal Arbitration Act, 9 U.S.C.
Section 1 et seq. ("FAA"). If the FAA is held not to apply for any reason then
Ohio Revised Code Chapter 2711 regarding the enforceability of arbitration
agreements and awards will govern this Agreement and the arbitration award.
(ii) (a) All of a party's claims must be presented at a single
arbitration hearing. Any claim not raised at the arbitration hearing is waived
and released. The arbitration hearing will take place in Cincinnati, Ohio.
(b) The arbitration process will be governed by the
Employment Dispute Resolution Rules of the American Arbitration Association
("AAA") except to the extent they are modified by this Agreement.
(c) Employee has had an opportunity to review the AAA
rules and the requirements that Employee must pay a filing fee for which the
Employer has agreed to split on an equal basis.
(d) The arbitrator will be selected from a panel of
arbitrators chosen by the AAA in White Plains, New York. After the filing of
a Request for Arbitration, the AAA will send simultaneously to Employer and
Employee an identical list of names of five persons chosen from the panel.
Each party will have 10 days from the transmittal date in which to strike up
to two names, number the remaining names in order of preference and return
the list to the AAA.
(e) Any pre-hearing disputes will be presented to the
arbitrator for expeditious, final and binding resolution.
(f) The award of the arbitrator will be in writing and
will set forth each issue considered and the arbitrator's finding of fact and
conclusions of law as to each such issue.
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(g) The remedy and relief that may be granted by the
arbitrator to Employee are limited to lost wages, benefits, cease and desist
and affirmative relief, compensatory, liquidated and punitive damages and
reasonable attorney's fees, and will not include reinstatement or promotion.
If the arbitrator would have awarded reinstatement or promotion, but for the
prohibition in this Agreement, the arbitrator may award front pay. The
arbitrator may assess to either party, or split, the arbitrator's fee and
expenses and the cost of the transcript, if any, in accordance with the
arbitrator's determination of the merits of each party's position, but each
party will bear any cost for its witnesses and proof.
(h) Employer and Employee recognize that a primary
benefit each derives from arbitration is avoiding the delay and costs
normally associated with litigation. Therefore, neither party will be
entitled to conduct any discovery prior to the arbitration hearing except
that: (i) Employer will furnish Employee with copies of all non-privileged
documents in Employee's personnel file; (ii) if the claim is for discharge,
Employee will furnish Employer with records of earnings and benefits relating
to Employee's subsequent employment (including self-employment) and all
documents relating to Employee's efforts to obtain subsequent employment;
(iii) the parties will exchange copies of all documents they intend to
introduce as evidence at the arbitration hearing at least 10 days prior to
such hearing; (iv) Employee will be allowed (at Employee's expense) to take
the depositions, for a period not to exceed four hours each, of two
representatives of Employer, and Employer will be allowed (at its expense) to
depose Employee for a period not to exceed four hours; and (v) Employer or
Employee may ask the arbitrator to grant additional discovery to the extent
permitted by AAA rules upon a showing that such discovery is necessary.
(i) Nothing herein will prevent either party from taking
the deposition of any witness where the sole purpose for taking the
deposition is to use the deposition in lieu of the witness testifying at the
hearing and the witness is, in good faith, unavailable to testify in person
at the hearing due to poor health, residency and employment more than 50
miles from the hearing site, conflicting travel plans or other comparable
reason.
(j) Arbitration must be requested in writing no later than
6 months from the date of the party's knowledge of the matter disputed by the
claim. A party's failure to initiate arbitration within the time limits herein
will be considered a waiver and release by that party with respect to any
claim subject to arbitration under this Agreement.
(k) Employer and Employee consent that judgment upon the
arbitration award may be entered in any federal or state court that has
jurisdiction.
(l) Except as provided in Section 10.A., neither party
will commence or pursue any litigation on any claim that is or was subject to
arbitration under this Agreement.
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(m) All aspects of any arbitration procedure under
this Agreement, including the hearing and the record of the proceedings, are
confidential and will not be open to the public, except to the extent the
parties agree otherwise in writing, or as may be appropriate in any subsequent
proceedings between the parties, or as may otherwise be appropriate in response
to a governmental agency or legal process.
11. COVENANT NOT TO COMPETE. For purposes of this Section 11 only, the term
"Employer" shall mean, collectively, Employer and each of its Affiliates. During
the 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, whether as a principal,
partner, joint venture, agent, employee, salesman, consultant, director or
officer, where such position would involve Employee in any business activity in
competition with Employer. This restriction will be limited to the geographical
area where Employer is then engaged in such competing business activity or to
such other geographical area as a court shall find reasonably necessary to
protect the goodwill and business of the Employer.
During the two-year period following termination of Employee's
employment with Employer for any reason (or if this period is unenforceable by
law, then for such period as shall be enforceable) Employee will not interfere
with or adversely affect, either directly or indirectly, Employer's
relationships with any person, firm, association, corporation or other entity
which is known by Employee to be, or is included on any listing to which
Employee had access during the course of employment as a customer, client,
supplier, consultant or employee of Employer and that Employee will not divert
or change, or attempt to divert or change, any such relationship to the
detriment of Employer or to the benefit of any other person, firm, association,
corporation or other entity.
During the 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 shall not, without
the prior written consent of Employer, accept employment, as an employee,
consultant, or otherwise, with any company or entity which is a customer or
supplier of Employer at any time during the final year of Employee's employment
with Employer.
Employee will not, during or at any time within three years after the
termination of Employee's employment with Employer, induce or seek to induce,
any other employee of Employer to terminate his or her employment relationship
with Employer.
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12. GOODWILL. Employee will not disparage Employer or any of its
Affiliates in any way which could adversely affect the goodwill, reputation
and business relationships of Employer or any of its Affiliates with the
public generally, or with any of their customers, suppliers or employees.
Employer will not disparage Employee.
13. TERMINATION.
A. (i) Employer or Employee may terminate this Agreement upon
Employee's failure or inability to perform the services required hereunder
because of any physical or mental infirmity for which Employee receives
disability benefits under any disability benefit plans made available to
Employee by Employer (the "Disability Plans"), over a period of one hundred
twenty consecutive working days during any twelve consecutive month period (a
"Terminating Disability").
(ii) If Employer or Employee elects to terminate this
Agreement in the event of a Terminating Disability, such termination shall be
effective immediately upon the giving of written notice by the terminating
party to the other.
(iii) Upon termination of this Agreement on account of
Terminating Disability, Employer shall pay Employee Employee's accrued
compensation hereunder, whether Base Salary, Bonus or otherwise (subject to
offset for any amounts received pursuant to the Disability Plans), to the date
of termination. For as long as such Terminating Disability may exist, Employee
shall continue to be an employee of Employer for all other purposes and Employer
shall provide Employee with disability benefits and all other benefits according
to the provisions of the Disability Plans and any other Employer plans in which
Employee is then participating.
(iv) If the parties elect not to terminate this Agreement upon
an event of a Terminating Disability and Employee returns to active employment
with Employer prior to such a termination, or if such disability exists for less
than one hundred twenty consecutive working days, the provisions of this
Agreement shall remain in full force and effect.
B. This Agreement terminates immediately and automatically on the
death of the Employee, provided, however, that the Employee's estate shall be
paid Employee's accrued compensation hereunder, whether Base Salary, Bonus or
otherwise, to the date of death.
C. Employer may terminate this Agreement immediately, upon written
notice to Employee, for Cause. For purposes of this Agreement, Employer shall
have "Cause" to terminate this Agreement only if Employer's Board of Directors
determines that there has been fraud, misappropriation or embezzlement on the
part of Employee.
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D. Employer may terminate this Agreement immediately, upon written
notice to Employee, for any reason other than those set forth in Sections 13.A.,
B. and C.; provided, however, that Employer shall have no right to terminate
under this Section 13.D. within one year after a Change in Control. In the event
of a termination by Employer under this Section 13.D., Employer shall, within
five days after the termination, pay Employee an amount equal to two times the
sum of the annual Base Salary rate in effect at the time of termination plus the
Bonus target in effect at the time of termination. For the remainder of the
Current Term, Employer shall continue to provide Employee with medical, dental,
vision and life insurance coverage comparable to the medical, dental, vision and
life insurance coverage in effect for Employee immediately prior to the
termination; and, to the extent that Employee would have been eligible for any
post-retirement medical, dental, vision or life insurance benefits from Employer
if Employee had continued in employment through the end of the Current Term,
Employer shall provide such post-retirement benefits to Employee after the end
of the Current Term. For purposes of any stock option or restricted stock grant
outstanding immediately prior to the termination, Employee's employment with
Employer shall not be deemed to have terminated until the end of the Current
Term. In addition, Employee shall be entitled to receive, as soon as practicable
after termination, an amount equal to the sum of (i) any forfeitable benefits
under any qualified or nonqualified pension, profit sharing, 401(k) or deferred
compensation plan of Employer or any Affiliate which would have vested prior to
the end of the Current Term if Employee's employment had not terminated plus
(ii) if Employee is participating in a qualified or nonqualified defined benefit
plan of Employer or any Affiliate at the time of termination, an amount equal to
the present value of the additional vested benefits which would have accrued for
Employee under such plan if Employee's employment had not terminated prior to
the end of the Current Term and if Employee's annual Base Salary and Bonus
target had neither increased nor decreased after the termination. For purposes
of this Section 13.D., "Current Term" means the two year period beginning at the
time of termination. For purposes of this Section 13.D. and Section 13.E.,
"Change in Control" means a change in control as defined in Employer's 1997 Long
Term Incentive Plan, including all relevant modifications.
E. This Agreement shall terminate automatically in the event that
there is a Change in Control and either (i) Employee elects to resign within
90 days after the change in Control or (ii) Employee's employment with
Employer is actually or constructively terminated by Employer within one year
after the Change in Control for any reason other than those set forth in
Sections 13.A., B. and C. For purposes of the preceding sentence, a
"constructive" termination of Employee's employment shall be deemed to have
occurred if, without Employee's consent, there is a material reduction in
Employee's authority or responsibilities or if there is a reduction in
Employee's Base Salary or Bonus target from the amount in effect immediately
prior to the Change in Control or if Employee is required by Employer to
relocate from the city where Employee is residing immediately prior to the
Change in Control. In the event of a termination under this Section 13.E.,
Employer shall pay Employee an amount equal to two times the sum of the
annual Base Salary rate in effect at the time of termination plus the Bonus
target in effect at the time of termination, all stock options shall become
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immediately exercisable (and Employee shall be afforded the opportunity to
exercise them). For the remainder of the Current Term, Employer shall
continue to provide Employee with medical, dental, vision and life insurance
coverage comparable to the medical, dental, vision and life insurance
coverage in effect for Employee immediately prior to the termination; and, to
the extent that Employee would have been eligible for any post-retirement
medical, dental, vision or life insurance benefits from Employer if Employee
had continued in employment through the end of the Current Term, Employer
shall provide such post-retirement benefits to Employee after the end of the
Current Term. Employee's accrued benefit under any nonqualified pension or
deferred compensation plan maintained by Employer or any Affiliate shall
become immediately vested and nonforfeitable and Employee also shall be
entitled to receive a payment equal to the sum of (i) any forfeitable
benefits under any qualified pension or profit sharing or 401(k) plan
maintained by Employer or any Affiliate plus (ii) if Employee is
participating in a qualified or nonqualified defined benefit plan of Employer
or any Affiliate at the time of termination, an amount equal to the present
value of the additional benefits which would have accrued for Employee under
such plan if Employee's employment had not terminated prior to the end of the
Current Term and if Employee's annual Base Salary and Bonus target had
neither increased nor decreased after the termination. Finally, to the extent
that Employee is deemed to have received an excess parachute payment by
reason of the Change in Control, Employer shall pay Employee an additional
sum sufficient to pay (i) any taxes imposed under section 4999 of the Code
plus (ii) any federal, state and local taxes applicable to any taxes imposed
under section 4999 of the Code. For purposes of this Section 13.E., "Current
Term" means the two year period beginning at the time of termination.
F. Employee may resign upon 60 days' prior written notice to Employer.
In the event of a resignation under this Section 13.F., this Agreement shall
terminate and Employee shall be entitled to receive Employee's Base Salary
through the date of termination, any Bonus earned but not paid at the time of
termination and any other vested compensation or benefits called for under any
compensation plan or program of Employer.
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G. Upon termination of this Agreement as a result of an event of
termination described in this Section 13 and except for Employer's payment of
the required payments under this Section 13 (including any Base Salary accrued
through the date of termination, any Bonus earned for the year preceding the
year in which the termination occurs and any nonforfeitable amounts payable
under any employee plan), all further compensation under this Agreement shall
terminate.
H. The termination of this Agreement shall not amend, alter or modify
the rights and obligations of the parties under Sections 7, 8, 9, 10, 11, and 12
hereof, the terms of which shall survive the termination of this Agreement.
14. ASSIGNMENT. As this is an agreement for personal services involving a
relation of confidence and a trust between Employer and Employee, all rights and
duties of Employee arising under this Agreement, and the Agreement itself, are
non-assignable by Employee.
15. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient, if in writing, and if delivered personally or
by certified mail to Employee at Employee's place of residence as then
recorded on the books of Employer or to Employer at its principal office.
16. WAIVER. No waiver or modification of this Agreement or the terms
contained herein shall be valid unless in writing and duly executed by the
party to be charged therewith. The waiver by any party hereto of a breach of
any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by such party.
17. GOVERNING LAW. This agreement shall be governed by the laws of the
State of Ohio.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to Employee's employment by Employer. There are no other
contracts, agreements or understandings, whether oral or written, existing
between them except as contained or referred to in this Agreement.
19. SEVERABILITY. In case any one or more of the provisions of this
Agreement is held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or other enforceability shall not affect any
other provisions hereof, and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provisions have never been contained
herein.
20. SUCCESSORS AND ASSIGNS. Subject to the requirements of Paragraph 14
above, this Agreement shall be binding upon Employee, Employer and Employer's
successors and assigns.
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21. CONFIDENTIALITY OF AGREEMENT TERMS. The terms of this Agreement
shall be held in strict confidence by Employee and shall not be disclosed by
Employee to anyone other than Employee's spouse, Employee's legal counsel,
and Employee's other advisors, unless required by law. Further, except as
provided in the preceding sentence, Employee shall not reveal the existence
of this Agreement or discuss its terms with any person (including but not
limited to any employee of Employer or its Affiliates) without the express
authorization of the President of Employer. To the extent that the terms of
this Agreement have been disclosed by Employer, in a public filing or
otherwise, the confidentiality requirements of this Section 21 shall no
longer apply to such terms.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Broadwing Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
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