EMPLOYMENT AGREEMENT
This Agreement is made as of June 9, 1997 (the "Effective Date") between
Cincinnati ▇▇▇▇ Telephone, an Ohio corporation ("Employer" or "CBT"), and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ("Employee").
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 cancelled as of the Effective Date.
2. PERIOD OF AGREEMENT. This Agreement begins on the Effective Date and,
subject to the terms of Section 13, will end on June 8, 2002.
3. DUTIES.
A. Employee will serve as President and Chief Executive Officer of
CBT or in such other equivalent capacity (e.g., president of a business unit) as
may be designated by the Chief Operating Officer of Cincinnati ▇▇▇▇ Inc. (CBI).
Employee will report to the Chief Operating Officer of CBI or such other officer
of CBI as may be designated by the Chief Operating Officer of CBI.
B. Employee shall furnish such managerial, executive, financial,
technical, and other skills, advice, and assistance in operating CBT as Employer
may reasonably request.
C. Employee shall also perform such other duties as are reasonably
assigned to Employee by the CBI officer to whom Employee reports.
D. Employee shall devote Employee's entire time, attention, and
energies to the business of Employer. The words "entire time, attention, and
energies" are intended to mean that Employee shall devote his full effort during
reasonable working hours to the business of Employer and shall devote at least
40 hours per week to the business of Employer. Employee shall travel to such
places as are necessary in the performance of Employee's duties.
E. Within six months after the Effective Date, Employee shall move
Employee's permanent residence from ▇▇▇▇▇▇▇ Springs, PA to Cincinnati, OH.
4. COMPENSATION.
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A. Employee shall receive a base salary (the "Base Salary") of at
least $320,000 per year, payable monthly, for each year during the term of this
Agreement, subject to proration for any partial year. Such Base Salary, and any
other amounts payable hereunder, 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. Employee shall be given a Bonus target of not
less than $160,000 for each year, subject to proration for a partial year.
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 in which fifth level managers and above of CBT are participating.
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 Employer's Sickness and Accident
Disability Plan and Long Term Disability Plan for Salaried Employees and under
any other disability plan made available to Employee by Employer.
C. A request will be made to the Compensation Committee of the Board
of Directors of CBI to provide Employee a stock option grant of 27,000 CBI
shares on the date of Employee's employment. Additional stock options may be
awarded annually at the discretion of the Compensation Committee.
D. Employer will reimburse Employee for expenses incurred by
Employee to relocate from ▇▇▇▇▇▇▇ Springs, PA to Cincinnati, OH, in accordance
with the CBT Relocation Plan.
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E. As of the Effective Date, Employee shall be given a Performance
Share target, under CBI's Senior Management Long Term Incentive Plan, of 4,200
CBI shares for the three year performance period ending December 31, 2000. The
number of CBI shares, if any, to be awarded at the conclusion of the performance
period shall be determined in accordance with and subject to the provisions of
the Senior Management Long Term Incentive Plan.
F. As of the Effective Date, Employee shall receive a restricted
stock award of 25,000 common shares of CBI. All provisions of this Agreement
which relate to the terms under which restricted stock will be granted to
Employee are subject to approval by the Compensation Committee. Such award
shall be made under the Cincinnati ▇▇▇▇ Inc. 1997 Long Term Incentive Plan on
the terms set forth in Attachment A.
G. If Employee's employment with Employer is terminated after the
fifth anniversary of the Effective Date for any reason other than those set
forth in Sections 13.A., B. and C., Employer shall pay Employee an amount equal
to two times Employee's annual Base Salary rate in effect on the date of
termination.
7. CONFIDENTIALITY. Employer and its Affiliates are engaged in the
telecommunications services, information services, and telecommunications
support services industries within the U.S. and world wide. 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 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 his duties for
Employer, without the express written consent of Employer. For purposes of this
Agreement, "Affiliate" means CBI and each direct and indirect subsidiary of CBI.
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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 or that relate to Employer or Affiliates' work or
project, present, past or contemplated, 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 his 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'S REMEDIES. Employer and Employee hereby acknowledge
and agree that the services rendered by Employee to Employer, the information
disclosed to Employee during and by virtue of his 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 this Agreement, or any part of it, and to secure the enforcement of
this Agreement.
B. EMPLOYEE'S REMEDIES. Employee agrees 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 Employee would have been
otherwise entitled to file or pursue in court or before any administrative
agency
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(herein "claim"), and Employee waives all right to ▇▇▇ Employer, its
Affiliates, and all of their agents, employees, officers and directors.
(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 Employee's claims must be presented at a single
arbitration hearing under this Agreement. 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.
(g) The remedy and relief that may be granted by the
arbitrator 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. Compensatory, liquidated and
punitive damages for breach of this Agreement, if awarded, may not exceed the
greater of (i) the amount provided in case of a termination under Section 13.D,
and (ii) the maximum amount otherwise payable under the applicable terms of this
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Agreement. Compensatory, liquidated and punitive damages, for a dispute, claim
or controversy other than for breach of this Agreement, if awarded, are limited
to a combined total of one year's salary. 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 entering this Agreement 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.
(iii) Arbitration must be requested in writing no later than 6
months from the date of Employee's knowledge of the matter disputed by the
claim. Employee's failure to initiate arbitration under this Agreement within
the time limits herein will be considered a waiver and release by Employee with
respect to any claim subject to arbitration under this Agreement.
(iv) Employer and Employee consent that judgment upon the
arbitration award may be entered in any federal or state court that has
jurisdiction.
(v) Employee will not commence or pursue any litigation on any
claim that is or was subject to arbitration under this Agreement.
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(vi) 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. 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 or any of its Affiliates, whether as a principal,
partner, joint venturer, agent, employee, salesman, consultant, director or
officer, where such position would involve Employee in any business activity in
competition with Employer or any of its Affiliates. This restriction will be
limited to the geographical area where Employer or any of its Affiliates 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 or Employer's
Affiliates 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 or any of its Affiliates and that
Employee will not divert or change, or attempt to divert or change, any such
relationship to the detriment of Employer of any of its Affiliates 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 or any of its Affiliates at any time during the final year of
Employee's employment with Employer.
Employee will not, during or at any time after the termination of
Employee's employment with Employer, induce or seek to induce, any other
employee of Employer or any of its Affiliates to terminate his or her employment
relationship with Employer or the Affiliate which employs such other employee.
12. GOODWILL. Employee will not disparage or act in any manner, directly
or indirectly, which may damage the business of Employer or any of its
Affiliates or which would adversely affect the goodwill, reputation, and
business
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relationships of Employer or any of its Affiliates with the public
generally, or with any of their customers, suppliers or employees.
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 Employer's Sickness and Accident Disability Benefit
Plan an/or Employer's Long Term Disability Plan for Salaried Employees as the
case may be (the "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 or otherwise (subject to offset for
any amounts received pursuant to the 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 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 or
otherwise, to the date of death.
C. Employer may terminate this Agreement immediately for Cause. For
purposes of this Agreement, Employer shall have Cause to terminate this
Agreement only if the CBI 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 upon prior written notice
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 this Agreement
during the 90-day period following a Change in Control of Employer. This
Agreement shall terminate automatically in the event that Employee elects to
resign within 90 days after a Change in Control of Employer. In the event of a
termination under the first sentence of this Section 13.D., Employer shall pay
Employee two times the Base Salary as it exists at the time of termination. In
the event of a termination under the second sentence of this Section 13.D.,
Employer shall pay Employee 2.99 times the Base Salary as it exists at the time
of termination. For purposes of this Agreement, a "Change in Control" of
Employer shall be deemed to have occurred if 50% or more of the outstanding
shares of Employer are sold by CBI to an entity unrelated to CBI or if 50% or
more of the assets of Employer are sold to an entity unrelated to CBI.
E. 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, all further compensation under this
Agreement shall terminate.
F. The termination of this Agreement shall not amend, alter or
modify the rights and obligations of the parties under Sections 6.G., 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
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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.
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 Chief
Operating Officer of CBI.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CINCINNATI ▇▇▇▇ TELEPHONE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇
EMPLOYEE
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Attachment A
RESTRICTED STOCK AWARD
UNDER THE PROVISIONS OF
THE CINCINNATI ▇▇▇▇ INC.
1997 LONG TERM INCENTIVE PLAN
Name of Employee: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Award Date: JUNE 9, 1997
Number of Restricted Shares: 25,000
Pursuant to the provisions of the Cincinnati ▇▇▇▇ Inc. 1997 Long Term
Incentive Plan (the "Plan"), a copy of which has been delivered to you, the
Compensation Committee of the Board of Directors of Cincinnati ▇▇▇▇ Inc. (the
"Compensation Committee") has granted you an award of 25,000 common shares, par
value $1.00 per share, of Cincinnati ▇▇▇▇ Inc. (the "Shares"), on and subject to
the terms of the Plan and your agreement to the following terms, conditions and
restrictions.
1. SECURITIES SUBJECT TO THIS AGREEMENT. This Agreement is made with
respect to the Shares and any securities (including additional common
shares of Cincinnati ▇▇▇▇ Inc. (the "Company")) issued in respect of the
Shares, whether by way of a share dividend, a share split, any
reorganization or recapitalization of the Company or its stock or any
merger, exchange of securities or like event or transaction as the result
of which any security or securities of any kind are issued to you by reason
of your ownership of the Shares. Reference herein to the Shares shall
include any such securities issued in respect of the Shares.
2. RIGHTS OF OWNERSHIP. Except for the Restrictions (as defined in
Section 3 hereof) and subject to the provisions regarding forfeiture set
forth in Section 8 hereof, you are the record and beneficial owner of the
Shares, with all rights and privileges (including but not limited to the
right to vote, to receive dividends and to receive distributions upon
liquidation of the Company) appertaining thereto.
3. RESTRICTIONS. Neither the Shares nor any interest therein may be
transferred or conveyed by you in any manner whatsoever, whether or not for
consideration (the "Restrictions"), except upon the passage of time or
occurrence of events as specified in Section 4, 5, 6 and 7 hereof.
4. LAPSE. The Restrictions shall lapse and be of no further force and
effect as to 25,000 shares on June 9, 2002.
5. TERMINATION OF RESTRICTIONS - DEATH. In the event of your death while
employed by the Company or any of its subsidiaries and on or prior to June
9, 2002, the Restrictions shall terminate and be of no further force or
effect, effecitve as of the date of death, with respect to the number of
Shares (rounded up to the nearest whole Share) that bears the same ratio to
the total number of Shares as the number of days from the Award Date of the
then restricted Shares through the date of your death bears to the number
of days from the Date of Grant to June 9, 2002. Any Shares which remain
subject to the Restrictions after the calculation prescribed in the
preceding sentence shall be forfeited to the Company as of your date of
death. Upon the Restrictions terminating with respect to certain Shares,
the executor, administrator or other personal representative of your
estate, or the trustee of any trust becoming entitled thereto be reason of
your death, may
transfer the unrestricted Shares to any person or persons entitled
thereto under your will or under your trust or other instrument (or in
the absence of any will under the laws of descent and distribution)
governing the distribution of your estate in the event of your death.
6. TERMINATION OF RESTRICTIONS - DISABILITY. If you (a) shall become
disabled and as a result thereof cease to be an employee of the Company or
any of its subsidiaries under and pursuant to applicable disability
provisions of any employment contract to which you and the Company or any
of its subsidiaries are parties or, (b) shall become disabled to such
extent that you are unable to perform the usual duties of your job for a
period of 12 consecutive weeks or more and if as the result thereof the
Compensation Committee approves the termination of your employment within
12 months following the first day of the 12 consecutive week period on
terms that include the right to transfer the Shares free of the
Restrictions, then and in either such event the Restrictions shall
terminate and be of no further force and effect as of the date you cease to
be an employee in the same manner as prescribed in the event of death
outlined in Section 5 above.
7. CHANGE IN CONTROL. In the event of a Change in Control of Cincinnati
▇▇▇▇ Telephone Company (the "Subsidiary") while you are employed by the
Company or any of its subsidiaries and on or prior to June 9, 2002, any
Restrictions which have not previously lapsed shall terminate and be of no
further force or effect as of the date of the Change of Control. For
purposes hereof, "Change of Control" means a change of ownership in which
50% or more of the Shares of the Subsidiary are sold to an entity which is
not an affiliate of the Company or 50% or more of the assets of the
Subsidiary are sold to an entity which is not an affiliate of the Company.
8. FORFEITURE. If you cease to be an employee of the Company or any of
its subsidiaries, except as provided in Section 4, 5, 6 and 7 hereof, any
Shares which remain subject to the Restrictions of the date such employment
terminates shall be at once forfeited to the Company as of the date of such
termination of employment (the "Forfeiture Date"). Upon such forfeiture
all of your rights in respect of such Shares shall cease automatically and
without further action by the Company or you. For the purpose of giving
effect to this provision, you have executed and delivered to the Company a
stock power with respect to each certificate evidencing any of the Shares,
thereby assigning to the Company all of your interest in the Shares. By
the execution and delivery of this Agreement, you authorize and empower the
Company, in the event of a forfeiture of any of the Shares under this
Section 8 to (i) date (as of the Forfeiture Date) those stock powers
relating to Shares that remain subject to the Restrictions as of the
Forfeiture Date and (ii) present such stock powers and the certificates to
which they relate to the Company's transfer agent or other appropriate
party of the sole purpose of transferring the forfeited Shares to the
Company.
9. MATTERS RELATING TO CERTIFICATES.
(a) Upon their issuance, the certificates representing the Shares
shall be deposited with the Secretary of the Company and shall be
released to you only pursuant to the provisions of this Section 9.
(b) Each certificate for Shares issued to you in accordance with this
Agreement shall bear the following legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF
A RESTRICTED STOCK AGREEMENT BETWEEN THE REGISTERED HOLDER HEREOF AND
CINCINNATI ▇▇▇▇ INC., DATED AS OF JUNE 9, 1997 AND MAY NOT BE
TRANSFERRED BY THE HOLDER, EXCEPT AS PROVIDED BY THE TERMS OF SUCH
AGREEMENT, A COPY OF WHICH IS ON DEPOSIT WITH THE SECRETARY OF
CINCINNATI ▇▇▇▇ INC. AND WHICH WILL BE MAILED TO A SHAREHOLDER OF
CINCINNATI ▇▇▇▇ INC. WITHOUT CHARGE WITHIN FIVE DAYS AFTER RECEIPT OF
A WRITTEN REQUEST."
Upon the lapse or termination of the Restrictions as to any Shares,
the certificate evidencing such Shares shall be promptly presented to the
Company's transfer agent or other appropriate party with instructions to
cause such certificate to be reissued, to the extent appropriate, in your
name and without the foregoing legend. Any Shares evidenced by such
certificate which remain subject to the Restrictions shall be evidenced by
a new certificate, bearing the foregoing legend, which shall be returned to
the Company. Upon the lapse or termination of the Restrictions as to any
Shares, the stock power or powers held by the Company with respect to such
Shares shall be surrendered to you (in exchange, if applicable, for a stock
power relating to any Shares which remain subject to the Restrictions).
10. INTERPRETATION. You acknowledge that the Compensation Committee has
the authority to construe and interpret the terms of the Plan and Agreement
if and when any questions of meaning arises under the Plan or this
Agreement, and any such construction or interpretation shall be binding on
you, your heirs, executors, administrators, personal representatives and
any other persons having or claiming to have an interest in the Shares.
11. WITHHOLDING. In connection with the award of Shares to you and any
dividend payments made while such Shares remain subject to restrictions
hereunder, the Company will withhold or cause to be withheld from your
salary payments such amounts of tax at such times as may be required by law
to be withheld with respect to the Shares and/or dividends, provided that
if your salary is not sufficient for such purpose, you shall remit to the
Company, on request, the amount required for such withholding taxes.
Within 45 days after issuance of the certificates representing the Shares,
you shall advise the Company in writing whether or not you have made an
election, under Section 83(b) of the Internal Revenue Code of 1986, to
include the fair market value of the Shares in your gross income for the
calendar year in which the certificates are issued.
12. NOTICES. All notices and other communications to be given hereunder
shall be in writing and shall be deemed to have been duly given when
delivered personally or when deposited in the United States mail, first
class postage prepaid, and addressed as follows:
TO THE COMPANY: Cincinnati ▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary of the Compensation Committee
TO THE EMPLOYEE: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
or to any other address as to which notice has been given in the manner
herein provided.
13. MISCELLANEOUS. This Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns. Subject to the provisions of the
Plan, this Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and shall be construed and
interpreted in accordance with the laws of the State of Ohio. This
Agreement may not be amended except in a writing signed by each of the
parties hereto. If any provisions of this Agreement shall be deemed to be
invalid or void under any applicable law, the remaining provisions hereof
shall not be affected thereby and shall continue in full force and effect.
Please indicate your acceptance by signing at the place provided and returning
this Agreement.
COMPENSATION COMMITTEE OF
THE BOARD OF DIRECTORS OF
CINCINNATI ▇▇▇▇ INC.
Dated: June 9, 1997 By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Dated: June 15, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------- ---------------------------
Accepted and Agreed
