Exhibit 10.35
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of January 20, 2000, by and between MJD COMMUNICATIONS INC., a Delaware
corporation (together with its successors and assigns permitted hereunder, the
"Company"), and XXXX X. XXXX (the "Executive").
RECITALS:
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its subsidiaries
and stockholders to enter into this Agreement for purposes of the Company
employing the Executive on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the respective agreements and
covenants set forth herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. EMPLOYMENT PERIOD. Subject to Section 3, the Company hereby agrees
to employ the Executive, and the Executive hereby agrees to be employed by the
Company in accordance with the terms and provisions of this Agreement, for a
period (the "Employment Period") commencing on the date hereof and ending on
December 31, 2003. In the event the Executive continues to perform services
after the Employment Period, and pending agreement for extension of the
Employment Agreement, such services shall constitute employment for an
unspecified term, terminable at will, with or without cause or reason, with or
without advance notice, and with or without pay in lieu of advance notice.
2. TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES.
(i) During the term of the Executive's employment,
the Executive shall serve as President and Chief Executive Officer -- Telecom
Group and, in so doing, shall perform normal duties and responsibilities
associated with such position, subject to the general direction, approval and
control of the Chief Executive Officer of the Company.
(ii) During the term of the Executive's employment,
and excluding any periods of vacation and other leave to which the Executive is
entitled, the Executive agrees to devote substantially all his business time to
the business and affairs of the Company and to use the
Executive's best efforts to perform faithfully, effectively and efficiently his
duties and responsibilities.
(iii) During the term of the Executive's employment
it shall not be a violation of this Agreement for the Executive to (1) serve on
industry trade, civic or charitable boards or committees, (2) deliver lectures
or fulfill speaking engagements, and (3) manage personal investments, so long as
such activities do not interfere with the performance of the Executive's duties
and responsibilities as an employee of the Company.
(iv) Executive agrees to observe and comply with the
Company's rules and policies as adopted by the Company from time to time.
(b) COMPENSATION.
(i) BASE SALARY. During the term of the Executive's
employment, the Executive shall receive an annual base salary (the "Annual Base
Salary"), which shall be paid in accordance with the customary payroll practices
of the Company, in an amount to be determined by the Board.
(ii) BONUS. Executive shall receive an annual bonus
in an amount to be determined by the Board.
(iii) INCENTIVE SAVINGS, STOCK OPTION AND RETIREMENT
PLANS. During the term of the Executive's employment, the Executive shall be
entitled to participate in all incentive, savings stock option and retirement
plans, practices, policies and programs applicable generally to other employees
of the Company, as amended from time to time. In addition, the Executive shall
be entitled to participate in the MJD Communications, Inc. Nonqualified Deferred
Compensation Plan.
(iv) WELFARE BENEFIT PLANS. During the term of the
Executive's employment, the Executive and/or the Executive's family, as the case
may be, shall be eligible for participation in and shall receive all benefits
under the welfare benefit plans, practices, policies and programs provided by
the Company, including medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel accident
insurance plans and programs, as amended from time to time, to the extent
applicable generally to other employees of the Company. In addition, the
Executive shall be entitled to payment of long term disability and term life
insurance premiums in an amount not to exceed $6,000 in the aggregate annually.
(v) PERQUISITES. During the term of the Executive's
employment, the Executive shall be entitled to receive, in addition to the
benefits described above, such perquisites and fringe benefits appertaining to
his position in accordance with any policies, practices and procedures
established by the Board, as amended from time to time, including, without
limitation reimbursement for automobile (American luxury or equivalent)
expenses.
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(vi) EXPENSES. During the term of the Executive's
employment, the Executive shall be entitled to receive prompt reimbursement for
all reasonable employment expenses incurred by the Executive in accordance with
the Company's policies, practices and procedures, as amended from time to time.
3. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If the Disability (as defined below) of the Executive has occurred during the
Employment Period, the Company may give to the Executive written notice in
accordance with Section 11(b) of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 90th day after receipt of such notice by the
Executive (the "Disability Effective Date"), if, within the 90 days after such
receipt, the Executive shall not have returned to perform, with reasonable
accommodation, the essential functions of his position. For purposes of this
Agreement, at any time the Company or any of its affiliates sponsors a long-term
disability plan for the Company's employees, "Disability" shall mean disability
as defined in such long-term disability plan. The determination of whether the
Executive has a Disability shall be made by the person or persons required to
render disability determinations under the long-term disability plan. At any
time the Company does not sponsor a long-term disability plan for its employees,
"Disability" shall mean the Executive's inability to perform, with reasonable
accommodation, the essential functions of his position hereunder for a period of
180 consecutive days due to mental or physical incapacity, as determined by a
physician selected by the Company or its insurers.
(b) CAUSE OR WITHOUT CAUSE. The Company may terminate the
Executive's employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, "Cause" shall mean (a) misappropriating any
funds or any material property of the Company; (b) obtaining or attempting to
obtain any material personal profit from any transaction in which the Executive
has an interest which is adverse to the interest of the Company unless the
Company shall first give its consent to such transaction; (c) (i) the willful
taking of actions which directly impair the Employee's ability to perform the
duties required by the terms of his employment; or (ii) taking any action
detrimental to the Company's goodwill or damaging to the Company's relationships
with its customers, suppliers or employees; provided that such neglect or
refusal, action or breach shall have continued for a period of twenty (20) days
following written notice thereof; (d) being convicted of or pleading NOLO
CONTENDERE to any crime or offense constituting a felony under applicable law or
any crime or offense involving fraud or moral turpitude; or (e) any material
intentional failure to comply with applicable laws or governmental regulations
within the scope of employment as defined by this Agreement. For purposes of
this Agreement, "without Cause" shall mean a termination by the Company of the
Executive's employment during the Employment Period for any reason other than a
termination based upon Cause, death, Disability or upon a Change of Control, as
defined below.
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(c) CHANGE OF CONTROL. If a Change of Control (as defined
below) occurs during the Employment Period and the Board determines in good
faith that it is in the Company's best interests to terminate the Executive's
employment with the Company within one year of such Change of Control the
Company may terminate the Executive's employment by giving the Executive written
notice in accordance with Section 11(b) of its intention to terminate the
Executive's employment. Any such termination by the Company as contemplated in
this Section 3(d) is referred to herein as a termination "upon a Change of
Control."
For purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred if: (a) the stockholders of the Company on the date
hereof (after giving effect to the transactions contemplated by the Stock
Purchase Agreement; dated as of the date hereof, by and among the Company and
the other Parties thereto) no longer own, either directly or indirectly, shares
of capital stock of the Company entitling them to 51% in the aggregate of the
voting power for the election of the directors of the Company, as a result of a
merger or consolidation of the Company, a transfer of capital stock of the
Company or otherwise, or (b) the Company sells, assigns, conveys, transfers,
leases or otherwise disposes of, in one transaction or a series of related
transactions, all or substantially all of its property or assets to any other
person or entity.
(d) NOTICE OF TERMINATION. Any termination by the Company for
Cause or without Cause or upon a Change of Control, shall be communicated by a
Notice of Termination to the Executive hereto given in accordance with Section
11(b). For purposes of this Agreement, the term "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets 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) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall not be more than 15
days after the giving of such notice if the Executive is giving such notice).
The failure by the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause or a termination upon a
Change of Control shall not waive any right of the Company hereunder or preclude
the Company from asserting such fact or circumstance in enforcing the Company's
rights hereunder.
(e) DATE OF TERMINATION. The term "Date of Termination" means (i)
if the Executive's employment is terminated by the Company for Cause or upon a
Change of Control, the date of receipt of the Notice of Termination or any later
date specified therein pursuant to Section 3(e), as the case may be, (ii) if the
Executive's employment is terminated by the Executive 30 days from the date of
receipt of the Notice of Termination, (iii) if the Executive's employment is
terminated by the Company other than for Cause or upon a Change of Control, the
date on which the Company notifies the Executive of such termination and (iv) if
the Executive's employment is terminated by reason of death or Disability, the
date of death of the Executive or the Disability, as the case may be.
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4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) FOR CAUSE; WITHOUT GOOD REASON; OTHER THAN FOR DEATH,
DISABILITY OR UPON A CHANGE OF CONTROL. If, during the Employment Period, the
Company shall terminate the Executive's employment for Cause, the Executive
shall not be entitled to any benefits pursuant to this Agreement.
(b) WITHOUT CAUSE. In the event that the Executive's
employment as Chief Executive Officer--Telecom Group of the Company is
terminated without "cause" and not as a result of a Change of Control, the
Executive shall be entitled to receive in a lump sum payment from the Company,
an amount equal to the Executive's Annual Base Salary as of the date of
termination for a period of twelve (12) months plus all accrued and unpaid base
salary and benefits as of the Date of Termination. In addition, the Company
shall maintain the Executive's long term disability and medical benefits for a
period of twelve (12) months following the Date of Termination.
(c) CHANGE OF CONTROL. In the event that the Company
terminates the Executive's employment as Chief Executive Officer--Telecom Group
upon a Change of Control (as defined below), the Executive shall be entitled to
receive from the Company in a lump sum payment, an amount equal to the
Executive's Annual Base Salary as of the Date of Termination for a period of
twenty-four (24) months. In addition, the Company shall maintain the Executive's
long term disability and medical benefits for a period of twenty-four (24)
months following the Date of Termination.
5. SEVERABILITY. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
6. MISCELLANEOUS.
(a) COUNTERPARTS. This Agreement may be executed in several
counterparts each of which is an original. This Agreement and any
counterpart so executed shall be deemed to be one and the same
instrument. It shall not be necessary in making proof of this Agreement
or any counterpart hereof to produce or account for any of the other
counterparts.
(b) CONTENTS OF AGREEMENT; PARTIES-IN-INTEREST, ETC. This
Agreement sets forth the entire understanding of the parties regarding
the subject matter hereof. Any previous agreements or understandings
between the parties regarding the subject matter
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hereof are merged into and superseded by this Agreement. All
representations, warranties, covenants, terms, conditions and
provisions of this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective heirs, legal
representatives, successors and permitted assigns of the Company and
the Executive. Neither this Agreement nor any rights, interests or
obligations hereunder may be assigned by any party without the prior
written consent of the other party hereto.
(c) NEW YORK LAW TO GOVERN. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
(d) SECTION HEADINGS. The section headings herein have been
inserted for convenience of reference only and shall in no way modify
or restrict any of the terms or provisions hereof.
(e) NOTICES. All notices, requests, demands and other
communications which are required or permitted hereunder shall be
sufficient if given in writing and delivered personally or by
registered or certified mail, postage prepaid, or by facsimile
transmission (with a copy simultaneously sent by registered or
certified mail, postage prepaid), as follows (or to such other address
as shall be set forth in a notice given in the same manner):
(1) If to the Company to:
MJD Communications, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxx
Copies to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
(2) If to the Executive, to:
Xxxx X. Xxxx
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
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(f) MODIFICATION AND WAIVER. Any of the terms or conditions
of this Agreement may be waived in writing at any time by the party
which is entitled to the benefits thereof, and this Agreement may be
modified or amended at any time by the Company and the Executive. No
supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by each of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof nor shall such
waiver constitute a continuing waiver.
(g) THIRD PARTY BENEFICIARIES. Except as otherwise
expressly set forth herein, no individual or entity shall be a
third-party beneficiary of the representations, warranties, covenants
and agreements made by any party hereto.
(h) TERMINATION OF PRIOR ARRANGEMENTS. The parties hereto
acknowledge and agree that this Agreement supersedes and terminates all
existing severance agreements or arrangements between the Company or
any of its affiliates and the Executive.
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IN WITNESS WHEREOF, the parties hereto have executed or have
caused this Agreement to be duly executed as of the date first above written.
EXECUTIVE MJD COMMUNICATIONS, INC.
/s/ Xxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------- -----------------------------
Xxxx X. Xxxx Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior VP & CFO
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