EXHIBIT 10.20
EMPLOYMENT AGREEMENT
Xxxx X. Xxxxx, III
This EMPLOYMENT AGREEMENT (the "Agreement") is dated as of February 15,
2005 (the "Effective Date") by and between Citizens Communications Company (the
"Company") and Xxxx X. Xxxxx, III ("Executive").
WHEREAS, Executive is currently employed with the Company as an Executive
Vice President; and
WHEREAS, as of the Effective Date, the Company desires to enter into an
agreement with Executive embodying the terms of Executive's employment and
pursuant to which Executive will serve as an Executive Vice President, and
Executive desires to enter into such an agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment. Subject to the provisions of Section 8 of this
Agreement, Executive shall be employed by the Company, and any of its
subsidiaries that the Chief Executive Officer (the "CEO") or the Board of
Directors of the Company (the "Board") shall designate for a period commencing
on the Effective Date and ending on the fifth anniversary thereof (the "Initial
Term"), on the terms and subject to the conditions set forth in this Agreement.
Following the Initial Term, the Agreement shall automatically be renewed for
additional terms of one year on each anniversary of the last day of the Initial
Term (the Initial Term and any annual extensions of the term of this Agreement,
together, the "Employment Term"), subject to Section 7 of this Agreement, unless
the Company or the Executive gives the other party written notice of non-renewal
at least ninety (90) days prior to such anniversary. A written notice of
non-renewal given by the Company to the Executive shall be considered a Notice
of Termination (pursuant to Section 7(e) of this Agreement) of a termination
without Cause by the Company and shall constitute a termination without Cause
under Section 7(c) of this Agreement at the expiration of such Employment Term
for all purposes hereunder.
2. Position.
a. During the Employment Term, Executive shall serve as an Executive Vice
President of the Company and shall report directly to the Chief Executive
Officer of the Company.
b. During the Employment Term, Executive will devote Executive's full
business time and best efforts (excluding any periods of vacation or sick leave)
to the performance of Executive's duties hereunder and will not engage in any
other business, profession or occupation for compensation or otherwise which
would conflict or interfere with the rendition of such services either directly
or indirectly, without the prior written consent of the Board; provided that
nothing herein shall preclude Executive, subject to the prior approval of the
Board, from accepting appointment to or continue to serve on any board of
directors or trustees of any business corporation or any charitable
organization; provided in each case in the aggregate, that such activities do
not conflict or interfere with the performance of Executive's duties hereunder
or conflict with Section 9 of this Agreement.
3. Base Salary. During the Employment Term, the Company shall pay Executive
a base salary at the annual rate of $400,000, payable in substantially equal
periodic payments in accordance with the Company's practices for other executive
employees, as such practices may be determined from time to time. Executive
shall be entitled to such increases in Executive's base salary, if any, as may
be determined from time to time in the sole discretion of the CEO and the Board.
Executive's annual base salary, as in effect from time to time, is hereinafter
referred to as the "Base Salary."
4. Annual Bonus. During the Employment Term, Executive shall be eligible to
earn an annual bonus award (an "Annual Bonus"), with a target bonus amount equal
to 100% of the Base Salary (the "Target Bonus"), with adjustments based on the
schedules set forth in the Citizens Incentive Plan, as amended from time to
time. In no instance will the adjustments to the Plan result in a reduction in
the target bonus to less than 100% of base salary.
5. Long-Term Incentive. Each fiscal year during the Employment Term,
Executive shall be eligible to receive a grant of restricted shares of common
stock (the "Restricted Shares") in an amount to be determined by the
Compensation Committee of the Board (the "Compensation Committee") commensurate
with Executive's performance; provided, however, that during the term of this
Agreement the Compensation Committee is not required to make a grant of
Restricted Shares to Executive in any fiscal year other than 2005 during which,
in accordance with the schedule to be adopted by the Compensation Committee,
Executive will be granted 50,000 restricted shares for his performance during
2004. Subject to Section 7(b)(ii)(D) and Section 7(c)(iii)(D), below, each
annual grant of Restricted Shares shall vest and become non-forfeitable as to
one third of the shares initially granted on each anniversary of the date of
grant and shall be fully vested and 100 percent non-forfeitable upon the fourth
anniversary of the date of grant.
6. Employee Benefits; Business Expenses.
a. Employee Benefits. During the Employment Term, Executive (and his
eligible dependents) shall be entitled to participate in the Company's pension,
profit sharing, medical, dental, life insurance and other employee benefit plans
(other than severance plans) (the "Company Plans"), as in effect from time to
time (collectively the "Employee Benefits") on the same basis as those benefits
are generally made available to other senior executives of the Company.
b. Business Expenses and Perquisites.
(i) Expenses. During the Employment Term, reasonable business expenses
incurred by Executive in the performance of Executive's duties hereunder shall
be reimbursed by the Company in accordance with the Company's policies.
(ii) Perquisites. During the Employment Term, Executive shall be entitled
to receive such perquisites as are generally made available to other senior
executives of the Company at a level that is commensurate with his position.
7. Termination. Executive's employment hereunder may be terminated by
either party at any time and for any reason; provided that Executive will be
required to give the Company at least 60 days advance written notice of any
resignation of Executive's employment. Notwithstanding any other provision of
this Agreement, the provisions of this Section 7 shall exclusively govern
Executive's rights upon termination of employment with the Company.
a. By the Company For Cause or By Executive Resignation Without Good
Reason.
(i) The Employment Term and Executive's employment hereunder may be
terminated by the Company for Cause (as defined below) and shall terminate
automatically upon Executive's resignation without Good Reason; provided that
Executive will be required to give the Company at least 60 days advance written
notice of such resignation.
(ii) For purposes of this Agreement, "Cause" shall mean Executive's (A)
willful and continued failure (other than as a result of physical or mental
illness or injury) to perform his material duties (provided such duties are as
described in Section 2) to the Company or its subsidiaries which continues
beyond 10 days after a written demand for substantial performance is delivered
to Executive by the Company (the "Cure Period"), which demand shall identify and
describe such failure with sufficient specificity to allow Executive to respond;
(B) willful or intentional conduct that causes material and demonstrable injury,
monetarily or otherwise, to the Company; (C) conviction of, or a plea of nolo
contendere to, a crime constituting (x) a felony under the laws of the United
States or any state thereof or (y) a misdemeanor involving moral turpitude; or
(D) material breach of a material provision of this Agreement, including,
without limitation, engaging in any action in breach of Section 8 or Section 9
of this Agreement, which continues beyond the Cure Period (to the extent that,
in the Board's reasonable judgment, such breach can be cured). For purposes of
this Section 7(a)(ii), no act, or failure to act, on the part of Executive shall
be considered "willful" unless it is done, or omitted to be done, by Executive
in bad faith and without reasonable belief that Executive's action or inaction
was in the best interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer of the Company or other senior
officer of the Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company.
(iii) If Executive's employment is terminated by the Company for Cause, or
if Executive resigns without Good Reason, Executive shall be entitled to
receive:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned but unpaid as of the date of termination
for any previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses properly
incurred by Executive in accordance with Company policy prior to the date
of Executive's termination;
(D) any accrued but unpaid vacation; and
(E) such Employee Benefits, if any, to which Executive may be entitled
under the applicable Company Plans upon termination of employment
hereunder, (the payments and benefits described clauses (A) through (E)
hereof being referred to, collectively, as the "Accrued Rights").
Following such termination of Executive's employment by the Company for Cause or
resignation by Executive, except as set forth in this Section 7(a)(iii),
Executive shall have no further rights to any compensation or any other benefits
under this Agreement.
b. Disability or Death.
(i) Executive's employment hereunder shall terminate upon Executive's death
and may be terminated by the Company if Executive becomes physically or mentally
incapacitated and is therefore unable for a period of six (6) consecutive months
or for an aggregate of nine (9) months in any twelve (12) consecutive month
period to perform Executive's duties (such incapacity is hereinafter referred to
as "Disability"). Any question as to the existence of the Disability of
Executive as to which Executive and the Company cannot agree shall be determined
in writing by a qualified independent physician mutually acceptable to Executive
and the Company. If Executive and the Company cannot agree as to a qualified
independent physician, each shall appoint such a physician and those two
physicians shall select a third who shall make such determination in writing.
The determination of Disability made in writing to the Company and Executive
shall be final and conclusive for all purposes of the Agreement.
(ii) Upon termination of Executive's employment hereunder for either
Disability or death, Executive or Executive's estate (as the case may be), shall
be entitled to receive:
(A) the Accrued Rights;
(B) continued payment of Executive's Base Salary during the period
commencing on the termination date and ending on the date that is six
months after the termination date;
(C) a pro rata portion of the Annual Bonus, if any, that Executive
would have been entitled to receive pursuant to the Citizens Incentive Plan
in the year of termination, based on actual performance through the date of
termination; and
(D) all Restricted Shares that have been granted as of the date of
termination shall be fully vested and non-forfeitable as of such date, all
other restricted shares and options previously granted to Executive that
are not vested as of such date shall become vested and non-forfeitable or,
in the case of options, fully exercisable, and Executive shall not be
entitled to any further annual grants of Restricted Shares under Section 5
of this Agreement.
(iii) Upon termination of Executive's employment hereunder due to
Executive's death or Disability, in addition to the benefits described in
Section 7(b)(ii) above, the Company shall provide Executive (in the event of his
Disability) and Executive's spouse with medical, dental, life insurance and
other health benefits (pursuant to the same Company Plans that are medical,
dental, life insurance and other health benefit plans and that are in effect for
active employees of the Company), at the sole cost of the Company, until the
second anniversary of the date of Executive's death or Disability.
Following Executive's termination of employment due to death or Disability,
except as set forth in this Section 7(b), Executive shall have no further rights
to any compensation or any other benefits under this Agreement.
c. By the Company Without Cause or by Executive Resignation for Good
Reason.
(i) Executive's employment hereunder may be terminated (A) by the Company
without Cause (which shall not include Executive's termination of employment due
to his Disability) or (B) by Executive for Good Reason (as defined below).
(ii) For purposes of this Agreement, "Good Reason" shall mean (A) the
failure of the Company to pay or cause to be paid Executive's Base Salary or
Annual Bonus earned if any, or a Board approved grant the Restricted Shares when
due hereunder, (B) any relocation of Executive's principal office location more
than 25 miles outside of the Stamford, Connecticut metropolitan area, or (C) any
other material breach of a material provision of this Agreement; provided that
any of the events described in clauses (A), (B), or (C) of this Section 7(c)(ii)
shall constitute Good Reason only if the Company fails to cure such event within
30 days after receipt from Executive of written notice of the event which
constitutes Good Reason (with sufficient specificity from Executive for the
Company to respond to such claim).
(iii) If Executive's employment is terminated by the Company without Cause
(other than by reason of death or Disability) or by Executive for Good Reason,
subject to Executive's execution of a release of all then existing claims
against the Company and its subsidiaries, affiliates, shareholders, officers,
directors, employees and agents, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) subject to Executive's continued compliance with the provisions of
Section 8 and Section 9 of this Agreement, an amount equal to one year of
the then current Base Salary and Target Bonus, payable on the date of
termination
(C) continuation of medical, dental, life insurance and other health
benefits (pursuant to the same Company Plans that are medical, dental, life
insurance and other health benefit plans and that are in effect for active
employees of the Company) for one year from the date of Termination or
until the date on which Executive becomes eligible to receive comparable
benefits from any subsequent employer; and
(D) all Restricted Shares shall be vested and non-forfeitable as of
the date of termination, all other restricted shares and options previously
granted to Executive that are not vested as of such date shall become
vested and nonforfeitable or, in the case of options, fully exercisable and
Executive shall not be entitled to any further annual grants of Restricted
Shares under Section 5 of this Agreement.
Following Executive's termination of employment by the Company without Cause
(other than by reason of Executive's death or Disability) or Executive for Good
Reason, except as set forth in this Section 7(c)(iii), Executive shall have no
further rights to any compensation or any other benefits under this Agreement.
d. Change in Control.
(i) Executive shall also be entitled to the benefits set forth in Section
7(c)(iii) above if, within one year following a Change in Control (defined
below), Executive terminates his employment as a result of: (i) any decrease by
the Company of the Base Salary or Target Bonus percentage; (ii) any decrease in
Executive's pension benefit opportunities or any material diminution in the
aggregate employee benefits; or (iii) any material diminution in Executive's
title or reporting relationships, or duties or responsibilities (each, a
"Constructive Termination Event"); provided that either of the events described
in clauses (i) and (ii) of this Section 7(d) shall constitute a Constructive
Termination Event only if the Company fails to cure such event within 30 days
after receipt from Executive of written notice of the event which constitutes a
Constructive Termination Event.
(ii) For purposes of this Agreement, a "Change in Control" shall be deemed
to have occurred:
(A) When any "person" as defined in Section 3(a)(9) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and as used in
Section 13(d) and 14(d) thereof, including a "group" as defined in Section
13(d) of the Exchange Act (but excluding the Company and any subsidiary and
any employee benefit plan sponsored or maintained by the Company or any
subsidiary (including any trustee of such plan acting as trustee)),
directly or indirectly, becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), of securities of the Company representing
50% or more of the combined voting power of the Company's then outstanding
securities; or
(B) Upon the consummation of any merger or other business combination
involving the Company, a sale of substantially all of the Company's assets,
liquidation or dissolution of the Company or a combination of the foregoing
transactions (the "Transactions") other than a Transaction immediately
following which the shareholders of the Company immediately prior to the
Transaction own, in the same proportion, at least 51% of the voting power,
directly or indirectly, of (i) the surviving corporation in any such merger
or other business combination; (ii) the purchaser of or successor to the
Company's assets; (iii) both the surviving corporation and the purchaser in
the event of any combination of Transactions; or (iv) the parent company
owning 100% of such surviving corporation, purchaser or both the surviving
corporation and the purchaser, as the case may be.
(iii) Excess Parachute Payments.
(A) If it is determined (as hereafter provided) that any payment or
distribution by the Company to or for the benefit of Executive, whether
paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise pursuant to or by reason of any other
agreement, policy, plan, program or arrangement, including without
limitation any stock option, restricted stock award, stock appreciation
right or similar right, or the lapse or termination of any restriction on
or the vesting or exercisability of any of the foregoing (a "Severance
Payment"), would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code") (or any
successor provision thereto) by reason of being "contingent on a change in
ownership or control" of the Company, within the meaning of Section 280G of
the Code (or any successor provision thereto) or to any similar tax imposed
by state or local law, or any interest or penalties with respect to such
excise tax (such tax or taxes, together with any such interest and
penalties, are hereafter collectively referred to as the "Excise Tax"),
then Executive shall receive the greater of (x) the Severance Payment,
after payment by Executive of the Excise Tax imposed on the Severance
Payment and (y) the amount of the Severance Payment (calculated on a net
after-tax basis) which could be paid to Executive under Section 280G of the
Code without causing any loss of deduction to the Company under such
Section (the "Capped Payment").
(B) Subject to the provisions of Section 7(d)(iii)(A) hereof, all
determinations required to be made under this Section 7(d), including
whether an Excise Tax is payable by Executive and the amount of such Excise
Tax, shall be made by the nationally recognized firm of certified public
accountants (the "Accounting Firm") used by the Company prior to the Change
in Control (or, if such Accounting Firm declines to serve, the Accounting
Firm shall be a nationally recognized firm of certified public accountants
selected by Executive). The Accounting Firm shall be directed by the
Company or Executive to submit its preliminary determination and detailed
supporting calculations to both the Company and Executive within 15
calendar days after the date of Executive's termination of employment, if
applicable, and any other such time or times as may be requested by the
Company or Executive. If the Accounting Firm determines that any Excise Tax
is payable by Executive, the Company shall either (x) make payment of the
Severance Payment, less all amounts withheld in respect of the Excise Tax,
as required by applicable law, or (y) reduce the Severance Payment by the
amount which, based on the Accounting Firm's determination and
calculations, would provide Executive with the Capped Payment, and pay to
Executive such reduced amount. If the Accounting Firm determines that no
Excise Tax is payable by Executive, it shall, at the same time as it makes
such determination, furnish Executive with an opinion that he has
substantial authority not to report any Excise Tax on his federal, state,
local income or other tax return. All fees and expenses of the Accounting
Firm shall be paid by the Company in connection with the calculations
required by this section.
(C) The federal, state and local income or other tax returns filed by
Executive (or any filing made by a consolidated tax group which includes
the Company) shall be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable
by Executive. Executive shall make proper payment of the amount of any
Excise Tax, and at the request of the Company, provide to the Company true
and correct copies (with any amendments) of his federal income tax return
as filed with the Internal Revenue Service and corresponding state and
local tax returns, if relevant, as filed with the applicable taxing
authority, and such other documents reasonably requested by the Company,
evidencing such payment.
e. Notice of Termination. Any purported termination of employment by the
Company or by Executive (other than due to Executive's death) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 12(h) hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
f. Execution of Release of All Claims. Upon termination of Executive's
employment for any reason, Executive agrees to execute a release of all then
existing claims against the Company, its subsidiaries, affiliates, shareholders,
directors, officers, employees and agents. Notwithstanding anything set forth in
this Agreement to the contrary, upon termination of Executive's employment for
any reason, Executive shall not receive any payments or benefits to which he may
be entitled hereunder (other than those which by law cannot be subject to the
execution of a release) (A) if Executive revokes such release or (B) until eight
(8) days after the date Executive signs such release (or until such other date
as applicable law may provide that Executive cannot revoke such release).
8. Non-Competition/Non-Solicitation/Non-Disparagement.
a. Executive acknowledges and recognizes the highly competitive nature of
the businesses of the Employer and its affiliates and accordingly agrees that,
during the Employment Term and, for a period of one year following any
termination of Executive's employment with the Company (the "Restricted
Period"), Executive will not, whether on Executive's own behalf or on behalf of
or in conjunction with any person, firm, partnership, joint venture,
association, corporation or other business organization, entity or enterprise
whatsoever ("Person"), directly or indirectly engage in any business that
directly or indirectly competes in any material way with the primary business of
the Company, or otherwise engage in competition with the Company which is
materially detrimental to the Company;
(i) During the Restricted Period, Executive will not, whether on
Executive's own behalf or on behalf of or in conjunction with any Person,
directly or indirectly:
(A) solicit or encourage any employee of the Company or its affiliates
to leave the employment of the Company or its affiliates; or
(B) hire any such employee who was employed by the Company or its
affiliates as of the date of Executive's termination of employment with the
Company or who left the employment of the Company or its affiliates
coincident with, or within one year prior to or after, the termination of
Executive's employment with the Company.
b. Executive shall not at any time issue any press release or make any
public statement about the Company or any director, officer, employee,
successor, parent, subsidiary or agent or representative of, or attorney to the
Company (any of the foregoing, a "Company Affiliate") regarding (i) any of the
foregoing's financial status, business, services, business methods, compliance
with laws, or ethics or otherwise, or (ii) regarding Company partners,
personnel, directors, officers, employees, attorneys, agents, including, without
limitation, in respect of both clauses (i) and (ii), any statement that is
intended or reasonably likely to disparage the Company or any Company Affiliate,
or otherwise degrade any Company Affiliate's reputation in the business,
industry or legal community in which any such Company Affiliate operates and,
the Company shall not at any time issue any press release or make any public
statement about Executive or his spouse that is intended or reasonably likely to
disparage Executive's reputation in the business, industry or legal community or
otherwise degrade his or her reputation or standing in their community;
provided, that, Executive and the Company shall be permitted to (a) make any
statement that is required by applicable securities or other laws to be included
in a filing or disclosure document, subject to prior notice to the other
thereof, and (b) defend himself or itself against any statement made by the
other party that is intended or reasonably likely to disparage or otherwise
degrade that party's reputation, only if there is a reasonable belief that the
statements made in such defense are not false statements and (c) provide
truthful testimony in any legal proceeding.
c. It is expressly understood and agreed that although Executive and the
Company consider the restrictions contained in this Section 8 to be reasonable,
if a final judicial determination is made by a court of competent jurisdiction
that the time or territory or any other restriction contained in this Agreement
is an unenforceable restriction against Executive, the provisions of this
Agreement shall not be rendered void but shall be deemed amended to apply as to
such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
9. Confidentiality.
a. Executive will not at any time (whether during or after Executive's
employment with the Company) (x) retain or use for the benefit, purposes or
account of Executive or any other Person; or (y) disclose, divulge, reveal,
communicate, share, transfer or provide access to any Person outside the Company
(other than its professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential information --
including without limitation rates, trade secrets, know-how, research and
development, software, databases, inventions, processes, formulae, technology,
designs and other intellectual property, information concerning finances,
investments, profits, pricing, costs, products, services, vendors, customers,
clients, partners, investors, personnel, compensation, recruiting, training,
advertising, sales, marketing, promotions, government and regulatory activities
and approvals -- concerning the past, current or future business, activities and
operations of the Company, its subsidiaries or affiliates and/or any third party
that has disclosed or provided any of same to the Company on a confidential
basis ("Confidential Information") without the prior written authorization of
the Board.
b. "Confidential Information" shall not include any information that is (a)
generally known to the industry or the public other than as a result of
Executive's breach of this covenant or any breach of other confidentiality
obligations by third parties; (b) made legitimately available to Executive by a
third party without breach of any confidentiality obligation; or (c) required by
law to be disclosed; provided that Executive shall give prompt written notice to
the Company of such requirement, disclose no more information than is so
required, and cooperate with any attempts by the Company to obtain a protective
order or similar treatment.
c. Except as required by law, Executive will not disclose to anyone, other
than Executive's immediate family and legal or financial advisors, the existence
or contents of this Agreement; provided that Executive may disclose to any
prospective future employer the provisions of Section 8 and 9 of this Agreement
provided that such potential employer agrees to maintain the confidentiality of
such terms.
d. Upon termination of Executive's employment with the Company for any
reason, Executive shall immediately destroy, delete, or return to the Company,
at the Company's option, all originals and copies in any form or medium
(including memoranda, books, papers, plans, computer files, letters and other
data) in Executive's possession or control (including any of the foregoing
stored or located in Executive's office, home, laptop or other computer, whether
or not Company property) that contain Confidential Information or otherwise
relate to the business of the Company, its affiliates and subsidiaries, except
that Executive may retain only those portions of any personal notes, notebooks
and diaries that do not contain any Confidential Information.
e. The provisions of this Section 9 shall survive the termination of
Executive's employment for any reason.
10. Specific Performance. Executive acknowledges and agrees that the
Employer's remedies at law for a breach or threatened breach of any of the
provisions of Section 8 or Section 9 of this Agreement would be inadequate and
the Company would suffer irreparable damages as a result of such breach or
threatened breach. In recognition of this fact, Executive agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at law,
the Company, without posting any bond, shall be entitled to cease making any
payments or providing any benefit otherwise required by this Agreement and
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available.
11. Arbitration. Except as provided in Section 10, any other dispute
arising out of or asserting breach of this Agreement, or any statutory or common
law claim by Executive relating to his employment under this Agreement or the
termination thereof (including any tort or discrimination claim), shall be
exclusively resolved by binding statutory arbitration in accordance with the
Employment Dispute Resolution Rules of the American Arbitration Association.
Such arbitration process shall take place in New York, New York. A court of
competent jurisdiction may enter judgment upon the arbitrator's award. All costs
and expenses of arbitration (including fees and disbursements of counsel) shall
be borne by the respective party incurring such costs and expenses.
12. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut, without regard to
conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the employment of Executive by the
Company. There are no restrictions, agreements, promises, warranties, covenants
or undertakings between the parties with respect to the subject matter herein
other than those expressly set forth herein. This Agreement may not be altered,
modified or amended except by written instrument signed by the parties hereto.
c. No Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver of such
party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
e. Assignment. This Agreement, and all of Executive's rights and duties
hereunder, shall not be assignable or delegable by Executive. Any purported
assignment or delegation by Executive in violation of the foregoing shall be
null and void ab initio and of no force and effect. This Agreement may be
assigned by the Company to a person or entity which is an affiliate or a
successor in interest to substantially all of the business operations of the
Company. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such affiliate or successor
person or entity.
f. Set Off; Mitigation. The Company's obligation to pay Executive the
amounts provided and to make the arrangements provided hereunder shall be
subject to set-off, counterclaim or recoupment of amounts owed by Executive to
the Company or its affiliates. Executive shall not be required to mitigate the
amount of any payment provided for pursuant to this Agreement by seeking other
employment or otherwise and the amount of any payment provided for pursuant to
this Agreement shall not be reduced by any compensation earned as a result of
Executive's other employment or otherwise.
g. Successors; Binding Agreement. This Agreement shall inure to the benefit
of and be binding upon the Company and its subsidiaries and Executive and any
personal or legal representatives, executors, administrators, successors,
assigns, heirs, distributees, devisees and legatees. Further, the Company will
require any successor (whether, direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company and any successor to its business and/or assets
which is required by this Section 12(g) to assume and agree to perform this
Agreement or which otherwise assumes and agrees to perform this Agreement;
provided, however, in the event that any successor, as described above, agrees
to assume this Agreement in accordance with the preceding sentence, as of the
date such successor so assumes this Agreement, the Company shall cease to be
liable for any of the obligations contained in this Agreement.
h. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below in this Agreement, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
If to the Company:
Citizens Communications Company
Three Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: L. Xxxxxxx Xxxxxx, Esq.
If to Executive:
To the most recent address of Executive set forth in the
personnel records of the Company.
i. Executive Representation. Executive hereby represents to the Company
that the execution and delivery of this Agreement by Executive and the Company
and the performance by Executive of Executive's duties hereunder shall not
constitute a breach of, or otherwise contravene, the terms of any employment
agreement or other agreement or policy to which Executive is a party or
otherwise bound.
j. Prior Agreements. This Agreement supercedes all prior agreements and
understandings (including verbal agreements) between Executive and the Company
and/or its affiliates regarding the terms and conditions of Executive's
employment with the Company and/or its affiliates. The provisions of Sections
7(b)(ii)(D) and 7(c)(iii)(D) shall also supersede any provision of any
restricted stock or option agreement or plan which is less favorable to
Executive in the treatment of restricted shares or options previously granted to
him thereunder upon his termination of employment upon death or Disability or
without Cause or for Good Reason.
k. Cooperation. Executive shall provide Executive's reasonable cooperation
in connection with any action or proceeding (or any appeal from any action or
proceeding) which relates to events occurring during Executive's employment
hereunder. This provision shall survive any termination of this Agreement.
l. Withholding Taxes. The Company may withhold from any amounts payable
under this Agreement such Federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
m. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
CITIZENS COMMUNICATIONS COMPANY: EXECUTIVE:
/s/ Xxxx Xxxxx Xxxxxxxxxxx /s/ Xxxx X. Xxxxx, III
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Xxxx X. Xxxxx, III
By: Xxxx Xxxxx Xxxxxxxxxxx
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