AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of April 1, 2008, by and between FAIRPOINT COMMUNICATIONS, INC., a Delaware corporation (together with its successors and assigns permitted hereunder, the “Company”), and XXXXXX X. XXXXXXX (the “Executive”).
RECITALS:
WHEREAS, the Executive is currently employed by the Company as its Chief Executive Officer pursuant to an Employment Agreement dated as of December 31, 2002, as amended on March 17, 2006 to extend the term through December 31, 2008 (as so amended, the “Existing Employment Agreement”);
WHEREAS, immediately prior to the execution of this Agreement, the Company consummated a series of transactions resulting in the Company’s acquisition of certain wireline telecommunications businesses formerly conducted by Verizon Communications Inc. in Maine, New Hampshire and Vermont; and
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that it is desirable and in the best interests of the Company to amend and restate the Existing Employment Agreement to insure that the Company will continue to have the exclusive benefit of the Executive’s knowledge and experience during the integration of the acquired businesses with the Company’s existing operations;
NOW, THEREFORE, in consideration of the 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 that the Existing Employment Agreement is amended and restated in its entirety to read as follows:
1. Employment Period. The Company hereby agrees to continue to employ the Executive, and the Executive hereby agrees to continue his employment with the Company for a period commencing on the date hereof and ending on December 31, 2009 unless terminated earlier in accordance with Section 3 (the “Employment Period”). In the event the Executive continues to perform services for the Company as an employee after the Employment Period for any reason, 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 Employment Period through the date the Board appoints a successor to the Executive (the “Transition Date”), the Executive shall serve as the Chairman and/or Chief Executive Officer of the Company and shall perform and have the normal duties and responsibilities associated with such positions. For the remainder of the Employment Period following the Transition Date, the Executive shall perform and have such duties and responsibilities as shall be assigned to him from time to time by the Board.
(ii) During the Employment Period (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) Notwithstanding Section 2(a)(ii) hereof, it shall not be a violation of this Agreement for the Executive to (1) serve on industry, trade, civic, educational or charitable boards or committees, (2) deliver lectures or fulfill speaking engagements, or (3) manage personal investments, so long as none of such activities 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 Employment Period, the Executive shall receive base salary at an annual rate of $600,000 (the “Annual Base Salary”), which shall be paid in substantially equal installments in accordance with the customary payroll practices of the Company but no less frequently than monthly.
(ii) Bonus. Executive shall be eligible for a bonus each year (up to 200% of Executive’s Annual Base Salary), which bonus shall be paid if fully earned, all as provided in an objective bonus arrangement set and documented by the Compensation Committee of the Board each year.
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(iii) Incentive, Savings and Retirement Plans. During the term of the Executive’s employment, the Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs applicable generally to other senior executives of the Company, as amended from time to time.
(iv) Performance Unit Award. Concurrently with the execution of this Agreement, the Company shall award the Executive a target award of 245,000 performance units under the 2008 FairPoint Long Term Incentive Plan, the terms of which award shall be set forth in a separate award agreement between the Company and the Executive. The actual number of performance units that shall be earned by the Executive and paid in shares of the Company’s common stock shall be determined by the terms of the award agreement and the 2008 FairPoint Long Term Incentive Plan.
The Executive acknowledges that the performance unit award shall be subject to approval of the 2008 FairPoint Long Term Incentive Plan by the stockholders of the Company at the 2008 annual stockholders meeting, provided that in the event such approval is not obtained, the Company shall pay to the Executive in cash the value of the performance units that would have been earned by the Executive and paid in shares of the Company’s common stock.
(v) Welfare Benefit Plans. During the Employment Period, the Executive and the Executive’s eligible dependents 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.
(vi) Perquisites. During the Employment Period, 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.
(vii) Expenses. During the Employment Period, 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.
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3. Termination of Employment and Employment Period.
(a) Death or Disability. The Executive’s employment and the Employment Period shall terminate automatically upon the Executive’s death. If a Disability (as defined below) of the Executive occurs, the Company may give to the Executive written notice in accordance with Section 8(e) hereof of its intention to terminate the Executive’s employment and the Employment Period. In such event, the Executive’s employment with the Company and the Employment Period shall terminate effective on the ninetieth (90th) day after receipt of such notice by the Executive (the “Disability Effective Date”), if, within ninety (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 days in any 360 consecutive day period 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 and 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 Executive’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 and the Employment Period for any reason other than a termination based upon Cause, death or Disability.
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(c) Notice of Termination. Any termination by the Company for Cause or without Cause shall be communicated by a Notice of Termination to the Executive given in accordance with Section 8(e). 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 Date of Termination. The failure by the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause 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.
(d) Date of Termination. The term “Date of Termination” means (i) if the Executive’s employment is terminated by the Company for Cause, the date of receipt of the Notice of Termination or any later date specified therein pursuant to Section 3(c), as the case may be, (ii) if the Executive’s employment is terminated by the Executive, thirty (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, 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.
4. Obligations of the Company upon Termination.
(a) If the Company shall terminate the Executive’s employment for Cause or the Executive shall voluntarily resign, the Executive shall not be entitled to any future benefits pursuant to this Agreement.
(b) Upon the earlier of (1) expiration of the Employment Period, or (2) termination of the Executive’s employment without Cause, the Executive shall be entitled to receive from the Company the following, effective as of the date of occurrence of such event (the “Termination Event”), subject to the following being suspended for a breach of the Executive’s covenant not to compete set forth in Section 6 hereof:
(i) Continued medical coverage for Executive and Executive’s spouse, at Executive’s election, for the life of each under the Company’s then existing health insurance plan upon continued timely payment by Executive or Executive’s spouse of the then applicable employee and spouse premium. This coverage shall continue to be available to Executive’s spouse upon the death of Executive. Following the time each of which Executive or Executive’s spouse is eligible for Medicare,
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ongoing retiree health coverage shall be calculated on the assumption that each of Executive or Executive’s spouse had enrolled in all available parts of Medicare.
(ii) Extension of the Executive’s right to exercise all of his vested options under the Company’s 2000 Employee Stock Option Plan until the earlier of (A) March 12, 2012, or (B) a Sale of the Company (as defined in the Company’s 1998 Stock Incentive Plan).
(iii) Continued vesting of all restricted stock granted through the Termination Event under the Company’s 2005 Stock Incentive Plan as provided in the restricted stock agreement applicable to each grant of such restricted stock. The Executive acknowledges that this Section 4(b)(iii) shall not apply to any of the performance units awarded to the Executive pursuant to Section 2(b)(iv).
5. Protection of Confidential Information. Executive acknowledges that by reason of his position with the Company, he has had and will continue to have complete access to and knowledge of the Company’s Confidential Information. The Company’s “Confidential Information”, as used in this Agreement, means any form of data or information in the possession or control of the Company which relates to its business affairs, including but not limited to trade secrets, proprietary information or other information not in the public domain. Confidential Information includes but is not limited to product or service concepts and designs, marketing insights, technology related to the Company’s business, business methods and strategies, all financial information and plans of the Company, acquisition targets and potential targets, strategic business plans, pricing terms and methods, growth, expansion or acquisition plans, financing or venture capital sources and plans, and all similar information that the Company holds in confidence or that competitors of the Company would be desirous of obtaining. Executive agrees to use the Confidential Information only for the purpose of or in connection with the business of the Company, and to keep the Company’s Confidential Information in strictest confidence and secrecy and not to use or disclose Confidential Information to any person or entity except for purposes of conducting the business of the Company, both during the term of Executive’s employment with the Company (both during the Employment Period and any continuation period thereafter) and thereafter for a period of five (5) years. Executive will return all Confidential Information to the Company immediately upon termination of his employment with the Company.
6. Non-Competition.
(a) Non-Competition Agreement. Executive agrees that, without the prior written consent of the Company’s Board of Directors, during the term of his employment with the Company, including any continued employment after the Employment Period, and for a period of one (1) year thereafter, he will not “Compete” with the Company in the “Prohibited Territory.”
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(b) Definition of “Compete”. For purposes of this Section 6, the term “Compete” means to be employed or engaged in any capacity, whether as an employee, as a consultant, or by self-employment, individually or on behalf of others, or to have any ownership interest in, any business or entity engaged in business in the “Communications Industry”; provided, however, that the purchase and ownership of capital stock of less than two percent (2%) in a publicly traded entity within the Communications Industry shall not constitute competing. As used herein, the term “Communications Industry” shall have its broadest definition, as generally understood by the investing public, and includes, but is not necessarily limited to the ownership, acquisition or operation of, investment in, or the provision of services or technology related to Rural Local Exchange Carriers (RLECs), Incumbent Local Exchange Carriers (ILECs), Competitive Local Exchange Carriers (CLECs), Internet Service Providers (ISPs), cable television services, retail or wholesale distribution of long distance services, Internet portal services, web casting and web hosting, dedicated service lines (DSL), broadband, voice or video conferencing, voice mail services, voice, data or video transmissions, cellular or wireless telephone, data, paging or Internet access services, prepaid calling cards and other prepaid communication services, electronic mail services, directory and operator assistance services, facsimile and data services, and other similar and related services and products.
(c) Definition of “Prohibited Territory”. For purposes of this Section 6, the term “Prohibited Territory” shall mean and include each of the following defined areas: (i) the United States, and (ii) any State within the United States where the Company is engaged in business in the Communications Industry. For purposes of this Section 6, a person or entity is considered to be Competing in the Prohibited Territory if it is engaged in offering or providing products or services related to the Communications Industry within the Prohibited Territory, regardless of the geographic location of the Competing individual or entity.
(d) Acknowledgments by Executive. Executive acknowledges that the terms of this Section 6, including the definitions of Compete, Communications Industry and Prohibited Territory, and the three (3) year post employment term are reasonable, and are no broader than necessary to protect the Company’s legitimate business interests. Executive specifically acknowledges and agrees that (i) he has received adequate and valuable consideration for entering into this noncompetition agreement, (ii) the Company is currently engaged in business in the Communications Industry, and is either actively engaged in each aspect thereof set out in the definition set forth in Section 6(b) above, or it reasonably anticipates that it will be engaged in each such aspect or activity competitive with it, during the Employment Period, and that part of Executive’s responsibilities as Chief Executive Officer of the Company and as Chairman of the Board of Directors of the Company are and will continue to be to explore and expand the Company into each aspect of the Communications Industry where it can
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profitably do so, (iii) the nature of the Communications Industry is such that the range of business and competition is not necessarily contained within easily definable geographic territories, and that, in many respects, otherwise unrelated aspects of the Communications Industry are competitive with each other (for example, cable television providers, telephone companies and ISPs all compete with each other to provide Internet access and services to consumers and businesses), (iv) the business of investing in and operating RLECs, ILECs, CLECs and/or ISPs is highly competitive, and (v) by reason of his responsibilities as Chief Executive Officer of the Company and/or as Chairman of the Board of Directors of the Company, he will be intimately familiar with and engaged in developing the Company’s business, financial and growth plans and other Confidential Information, and that if he engages in any of the activity prohibited by this Section 6, it is inevitable that he would use or disclose Confidential Information of the Company.
(e) Governing Law; Enforcement; Survival. Notwithstanding the provisions of Section 8(c), the provisions of Section 5 and the provisions of this Section 6 shall be construed and enforced in accordance with the laws of the State of North Carolina, without regard to principles of conflict of laws. Executive agrees that the Company would suffer irreparable harm in the event of any violation of Sections 5 or 6 hereof, and the Company is therefore entitled to injunctive relief to enforce the provisions thereof. The provisions of Sections 5 and 6 shall survive the termination of this Agreement in accordance with their terms, and shall inure to the benefit of the Company and its affiliates, and each of their successors and assigns.
(f) Severability. In the event that any provision contained in this Section 6 is held to be invalid, prohibited or unenforceable because of the scope, duration or area of applicability, such provision shall be ineffective only to the extent of such invalidity, prohibition or unenforceability. Executive and the Company agree that it is each of their intent and desire that the provisions of Section 6 be enforced to the absolute greatest extent permissible by law, and they each therefore agree and request that, to the extent a court determines these provisions or any part thereof are unenforceable to any extent, such court may and should limit the enforcement to discrete geographic territories set forth in Section 6(c), or to specific states in which the Company is doing business, or to specific aspects of the Communications Industry as listed in Section 6(b), as the court deems necessary to the enforceability of the letter and intent of this Agreement.
7. 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
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affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. This Section 7 is intentionally in addition to but not in replacement of Section 6(f) above.
8. 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. 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 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. EXCEPT AS PROVIDED IN SECTION 6(e), 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):
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If to the Company, to:
FairPoint Communications, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxx, Esq.
If to the Executive, to:
Xxxxxx X. Xxxxxxx
Most recent address on the Company’s
employment records for the Executive
(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 employment and severance agreements or arrangements between the Company or any of its affiliates and the Executive, including but not limited to the Existing Employment Agreement.
(i) Executive’s Legal Fees. The reasonable costs and expenses for legal services incurred by Executive in the negotiation and execution of this Agreement shall be paid by the Company.
(j) Compliance with Code Section 409A. Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that the Company determines would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Internal Revenue Code of 1986 (the “Code”) would otherwise be payable or distributable under this Agreement by reason of the Executive’s separation from service, then to the extent necessary to comply with Code Section 409A: (i) if the payment or distribution is payable in a lump sum,
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the Executive’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of the Executive’s death or the first day of the seventh month following the Executive’s separation from service, and (ii) if the payment, distribution or benefit is payable or provided over time, the amount of such non-exempt deferred compensation or benefit that would otherwise be payable or provided during the six-month period immediately following the Executive’s separation from service will be accumulated, and the Executive’s right to receive payment or distribution of such accumulated amount or benefit will be delayed until the earlier of the Executive’s death or the first day of the seventh month following the Executive’s separation from service and paid or provided on the earlier of such dates, without interest, and the normal payment or distribution schedule for any remaining payments, distributions or benefits will commence. For purposes of this Agreement, the term “separation from service” shall be defined as provided in Code Section 409A and applicable regulations.
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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.
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EXECUTIVE |
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/s/ Xxxxxx X. Xxxxxxx |
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Xxxxxx X. Xxxxxxx |
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FAIRPOINT COMMUNICATIONS, INC. |
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By: |
/s/ Xxxx X. Xxxxxxx |
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Name: |
Xxxx X. Xxxxxxx |
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Title: |
Executive Vice
President and |
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