EMPLOYMENT AGREEMENT
AGREEMENT, dated as of January 1, 2002 (the "Effective Date") by and
between CoreComm Holdco, Inc., a Delaware corporation (together with its
successors and assigns, "Holdco"), CoreComm Communications, Inc., a Delaware
corporation (together with its successors and assigns, "Subsidiary") (Holdco and
Subsidiary being collectively the "Companies"), and Xxxxxx X. Xxxxxxx (the
"Executive");
W I T N E S S E T H :
WHEREAS, each of the Companies desires to employ the Executive as its
President and Chief Executive Officer, to have the Executive serve as a member
of the Board of each of the Companies, and to enter into an agreement embodying
the terms of such employment;
WHEREAS, the Executive desires to accept such employment with the
Companies, and serve on the Board of each of the Companies subject to the terms
and provisions of this Agreement;
WHEREAS, Subsidiary is a wholly owned subsidiary of Holdco;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Companies and the Executive (collectively,
the "Parties") agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall
have the meanings set forth in Exhibit A.
2. Term. The Companies hereby employ the Executive under this
Agreement, and the Executive hereby accepts such employment, for the Term. The
Term shall commence as of the Effective Date and shall end on December 31, 2004;
provided, however, that the Term shall thereafter be automatically extended for
unlimited additional one-year periods unless, at least six
months prior to the then-scheduled date of expiration of the Term, either (x)
each of the Companies gives notice to the Executive that it is electing not to
so extend the Term or (y) the Executive gives notice to each of the Companies
that he is electing not to so extend the Term. Notwithstanding the foregoing,
the Term may be earlier terminated in strict accordance with the provisions of
Section 9, in which event his employment with both Companies shall expire.
3. Positions, Duties and Location.
(a) During the Term, the Executive shall serve as the
President and Chief Executive Officer of each of the Companies; shall serve as a
member of the Board of each of the Companies; shall have all authorities, duties
and responsibilities customarily exercised by an individual serving in those
positions at entities of the size and nature of Holdco and Subsidiary,
respectively; shall be assigned no duties or responsibilities that are
materially inconsistent with, or that materially impair his ability to
discharge, the foregoing duties and responsibilities; shall have such additional
duties and responsibilities, consistent with the foregoing, as may be from time
to time assigned to him by the Holdco Board, its Chairman, or the Subsidiary
Board; in his capacity as President and Chief Executive Officer of Holdco, shall
report solely and directly to the Holdco Board and its Chairman; and in his
capacity as President and Chief Executive Officer of Subsidiary shall report
solely and directly to the Subsidiary Board.
(b) During the Term, the Executive shall devote substantially
all of his business time and efforts to the business and affairs of the
Companies. However, nothing in this Agreement shall preclude the Executive from:
(i) serving on the boards of a reasonable number of business entities, trade
associations and charitable organizations, (ii) engaging in charitable
activities and community affairs, (iii) accepting and fulfilling a reasonable
number of speaking engagements, and (iv) managing his personal investments and
affairs; provided that such activities do not either individually or in the
aggregate materially interfere with the proper performance of his duties and
responsibilities hereunder, or in any way create or present a conflict of
interest.
(c) During the Term, the Executive's principal office, and
principal place of employment, shall be in Bala Cynwyd, Pennsylvania, or within
40 miles thereof.
4. Base Salary. Commencing as of the Effective Date, the Executive
shall receive an annualized Base Salary of $900,000, payable in accordance with
the regular payroll practices applicable to senior executives of the Companies
generally, but no less frequently than monthly. The Base Salary shall be
reviewed no less frequently than annually during the Term for increase in the
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discretion of the Holdco Board (or its Chairman and/or compensation committee).
The Base Salary shall not be decreased at any time, or for any purpose, during
the Term (including, without limitation, for the purpose of determining benefits
due under Section 9) without the prior written consent of the Executive.
5. Annual Incentive Awards.
The Executive shall be entitled to an annual incentive award in respect
of each calendar year during the Term.
(a) The Executive's aggregate annual incentive award for 2002
shall be determined and paid as provided in this Section 5(a), subject to the
provisions of Sections 5(c), 5(d) and 5(e) below. The Executive shall be
eligible to receive three quarterly awards based on a target amount of $300,000
each, determined as of each of the following dates:
(i) June 30, 2002: payment of one half of such target
amount (i.e., $150,000) shall be made if the Companies achieve at least 80% of
Budgeted EBITDA for the period from April 1, 2002 through June 30, 2002; payment
of the other half of such target amount (i.e., $150,000) shall be made if the
Companies achieve at least 80% of Budgeted FCF for such period;
(ii) September 30, 2002: payment of one half of such
target amount shall be made if the Companies achieve at least 85% of Budgeted
EBITDA for the period from April 1, 2002 through September 30, 2002; payment of
the other half of such target amount shall be made if the Companies achieve at
least 85% of Budgeted FCF for such period; and
(iii) December 31, 2002: payment of one half of such
target amount shall be made if the Companies achieve at least 90% of Budgeted
EBITDA for the period from April 1, 2002 through December 31, 2002; payment of
the other half of such target amount shall be made if the Companies achieve at
least 90% of Budgeted FCF for such period.
(b) For each calendar year during the Term after 2002, the
Executive shall be eligible to receive four quarterly awards based on a target
amount of $225,000 each quarter, determined as of each of the following dates
during such year, subject to the provisions of Sections 5(c), 5(d) and 5(e)
below:
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(i) March 31: payment of one half of such target
amount (i.e., $112,500) shall be made if the Companies achieve at least 75% of
Budgeted EBITDA for the period from January 1 through March 31 of such year;
payment of the other half of such target amount (i.e., $112,500) shall be made
if the Companies achieve at least 75% of Budgeted FCF for such period.
(ii) June 30: payment of one half of such target
amount shall be made if the Companies achieve at least 80% of Budgeted EBITDA
for the period from January 1 through June 30 of such year; payment of the other
half of such target amount shall be made if the Companies achieve at least 80%
of Budgeted FCF for such period.
(iii) September 30: payment of one half of such
target amount shall be made if the Companies achieve at least 85% of Budgeted
EBITDA for the period from January 1 through September 30 of such year; payment
of the other half of such target amount shall be made if the Companies achieve
at least 85% of Budgeted FCF for such period.
(iv) December 31: payment of one half of such target
amount shall be made if the Companies achieve at least 90% of Budgeted EBITDA
for the period from January 1 through December 31 of such year; payment of the
other half of such target amount shall be made if the Companies achieve at least
90% of Budgeted FCF for such period.
(c) (i) With respect to each of the award amounts determined
in accordance with Sections 5(a) and 5(b) above, in the event that the actual
result (expressed as a percentage of budget) achieved for any relevant period
exceeds the percentage stated below (the "Stated Percentage") of either or both
of Budgeted EBITDA or Budgeted FCF, the amount to be paid with respect to
Budgeted EBITDA or Budgeted FCF, as the case may be, shall be increased by a
percentage equal to four times the percentage by which the actual result exceeds
the Stated Percentage of the budgeted amount, plus the Stated Percentage. The
Stated Percentage shall be as follows for each period referred to in Section
5(a) or Section 5(b) above that ends on a:
March 31: 125%
June 30: 120%
September 30: 115%
December 31: 110%.
In the event that an actual result for any period falls between the threshold
target amount with respect to either EBITDA or FCF stated in Section 5(a) or
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5(b) and the Stated Percentage, no increase shall be paid pursuant to this
Section 5(c) but 100% of the target award with respect to EBITDA or FCF, as the
case may be, for such period shall be paid in accordance with Section 5(a) or
5(b), as applicable. This Section 5(c) is inapplicable to the period ended March
31, 2002.
(For example if actual EBITDA for any period ended June 30 equals 130%
of Budgeted EBITDA for such period, then the Executive shall receive an award
equal to 160% of the target award based on Budgeted EBITDA for such period,
because actual results of 130% of Budgeted EBITDA exceed the Stated Percentage
of 120% by 10%, which, when multiplied by 4, equals 40%; adding 40% plus 120%
results in entitlement to an award of 160% of the target based on EBITDA for
such period. Therefore, if actual EBITDA for the period ended June 30, 2002 is
130% of Budgeted EBITDA for such period and actual FCF for such period is 97% of
Budgeted FCF for such period, the Executive shall receive a total incentive
award of $390,000 for the period, consisting of $240,000 (160% of the target
award of $150,000 with respect to Budgeted EBITDA) plus $150,000 (100% of the
target award with respect to Budgeted FCF)).
(ii) In the event that any portion of any award
amount for which the Executive is eligible during a particular calendar year
pursuant to Section 5(a) or Section 5(b) above is not earned because the
required percentage of Budgeted EBITDA (or Budgeted FCF, as the case may be) is
not achieved for a particular period during such calendar year, but the
percentage of Budgeted EBITDA (or Budgeted FCF, as the case may be) required for
earning an award for a later-ending period during the same year is achieved, the
target amount for which the Executive was eligible with respect to Budgeted
EBITDA (or Budgeted FCF, as the case may be) for the earlier-ending period shall
be paid at the same time as, and in addition to, the amount paid with respect to
the later-ending period. (For example, if actual EBITDA for the period ending
June 30, 2002 is less than 80% of Budgeted EBITDA -- with the result that no
payment is made with respect to that period at that time -- but actual EBITDA
for the period ending September 30, 2002 is equal to the target 85% of Budgeted
EBITDA, the Executive shall receive an aggregate incentive award for the period
ending September 30, 2002 equal to the total of $150,000 with respect to the
June 30, 2002 EBITDA target, plus $150,000 with respect to the September 30,
2002 EBITDA target, plus any amounts due as determined with reference to
Budgeted FCF.) No results from any period in a subsequent or prior calendar year
shall be considered in determining an award amount for a particular calendar
year, or portion thereof, pursuant to this Section 5.
(d) The amount of each incentive award referred to in this
Section 5 is to be (i) determined and paid as promptly as reasonably practicable
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following the close of the period to which such award relates and (ii) paid no
later than the earlier of (x) the date that other senior executives of either of
the Companies are paid corresponding awards and (y) 30 days after the close of
the period to which it relates.
(e) Actual EBITDA and FCF achieved for any relevant period
shall be determined in accordance with the Companies' regular accounting
principles and practices, consistently applied.
6. Initial Stock Option Award.
(a) As of January 11, 2002, the Executive shall be granted a
ten-year Stock Option (the "Initial Stock Option") to acquire 322,500 shares of
Common Stock of Holdco pursuant to a Stock Option Agreement in substantially the
form attached hereto as Exhibit B. Such Stock Option shall have an exercise
price, as of January 11, 2002, equal to $3.00 per share of Holdco's Common
Stock.
(b) In the event that any merger, consolidation,
reorganization, recapitalization, spin-off, split-up, combination, exchange of
securities, modification of securities, liquidation, dissolution, share split,
share dividend, other distribution of securities or other property in respect of
shares or other securities, or other change in corporate structure or
capitalization affecting the rights or value of securities of any class that is
to be subject to the Initial Stock Option occurs (x) on or after the Effective
Date and (y) on or before the date that the Initial Stock Option is actually
granted, then appropriate adjustment(s) shall promptly be made in the number
and/or kind of securities to be subject to such Option and/or in the exercise
price and/or in other terms and conditions of such Option, so as to avoid
dilution or enlargement of the rights, economic opportunity and value intended
to be represented by such Option.
7. Other Incentives. During the Term, the Executive shall be eligible
for additional long-term incentives (including, without limitation, additional
Stock Option grants), and for special awards, in the sole discretion of the
Companies' Boards or their Compensation Committees, in each case at a level, and
on terms and conditions, that are (x) commensurate with his positions and
responsibilities at the Companies and (y) appropriate in light of his
performance and of corresponding awards (if any) to other senior executives of
either of the Companies.
8. Other Benefits.
(a) Employee Benefits. During the Term, the Executive shall be
entitled to participate in all employee benefit plans, programs and arrangements
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made available generally to other senior executives of either of the Companies,
including, without limitation, pension, profit-sharing, income deferral,
savings, 401(k), and other retirement plans or programs, medical, dental,
vision, prescription drug, hospitalization, short-term and long-term disability
and life insurance plans and programs, accidental death and dismemberment
protection, travel accident insurance, and any other employee benefit plan,
program or arrangement that may from time to time be made available generally to
other senior executives of either of the Companies, including any plans,
programs or arrangements that supplement the above-listed types of plans,
programs or arrangements, whether funded or unfunded. The Executive shall be
entitled to participate in all such plans, programs and arrangements at a level,
and on terms and conditions, that are (x) commensurate with his positions and
responsibilities at the Companies, (y) no less favorable to him than to other
senior executives of either of the Companies generally and (z) no less favorable
to him than those provided to him by the Companies prior to the Effective Date.
The Executive shall be entitled to post-retirement welfare and other benefits on
no less favorable a basis than that applying generally to other senior
executives of either of the Companies. Nothing in this Section 8(a), other than
clause (z) of the immediately preceding sentence, shall be construed to require
the Companies to establish or maintain any particular employee benefit plan,
program or arrangement except as expressly set forth elsewhere in this
Agreement.
(b) Fringe Benefits, Perquisites and Vacations. During the
Term, the Executive shall be entitled (i) to participate in all fringe benefits
and perquisites made available generally to senior executives of either of the
Companies, such participation to be at levels, and on terms and conditions, that
are (x) commensurate with his positions and responsibilities at the Companies,
(y) no less favorable to him than those applying generally to other senior
executives of either of the Companies and (z) no less favorable to him than
those provided to him by the Companies prior to the Effective Date; (ii) to
receive such additional fringe benefits and perquisites as the Companies may, in
their discretion, from time to time provide; and (iii) to no less than twenty
(20) days' paid vacation per calendar year (which, if not used, may be carried
over from year to year, up to a maximum of forty (40) accrued vacation days).
(c) Reimbursement of Business and Other Expenses. The
Executive shall be promptly reimbursed for all expenses reasonably incurred by
him in connection with his service under this Agreement, subject to
documentation in accordance with reasonable policies previously communicated to
him in writing. The Executive shall also be promptly reimbursed for any and all
expenses (including, without limitation, attorneys' fees and other charges of
counsel) reasonably incurred by him in connection with the negotiation,
documentation and implementation of these employment arrangements.
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(d) Supplemental Insurance Benefits.
(i) Beginning on or promptly following the Effective
Date and continuing throughout the Term, the Executive shall be provided, in
addition to any life insurance coverage to which he is entitled under Section
8(a) or otherwise, and at no cost to the Executive, with term life insurance
coverage providing a $3,000,000 death benefit payable to the Executive's estate
or his designee.
(ii) Beginning on or promptly following the Effective
Date and continuing throughout the Term, the Executive shall be provided
long-term disability insurance coverage, at no cost to the Executive, providing
for an aggregate annual long-term disability benefit of $300,000 through age 65.
(iii) Notwithstanding the foregoing, in the event
that the cost of the coverages described in Sections 8(d)(i) and 8(d)(ii)
exceeds an aggregate of $25,000 for any calendar year, the Executive shall be
provided with such coverages as can be purchased for such year for a total of
$25,000. The Executive shall be responsible for any tax liability he incurs in
connection with the purchase of coverages pursuant to this Section 8(d).
9. Termination of Employment.
(a) Termination Due to Death. In the event that the
Executive's employment hereunder is terminated due to his death, the Term shall
expire and his estate or his beneficiaries (as the case may be) shall be
entitled to the following:
(i) a Pro-Rata Annual Incentive Award;
(ii) full vesting and exercisability, as of the date
of death, for any outstanding Stock Option to the extent that such Stock Option
either is vested as of the date of death or is scheduled to become vested on or
before the first anniversary of such date, each such Stock Option to remain
exercisable for at least the lesser of one year following the date of death and
the remainder of its maximum stated term; and
(iii) the benefits described in Sections 9(i) and
9(j).
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(b) Termination Due to Disability. In the event that the
Executive's employment hereunder is terminated due to Disability, the Term shall
expire and he shall be entitled to the following:
(i) a Pro-Rata Annual Incentive Award;
(ii) full vesting and exercisability, as of the
Termination Date, for any outstanding Stock Option to the extent that such Stock
Option either is vested as of the Termination Date or is scheduled to become
vested on or before the first anniversary of such date, each such Stock Option
to remain exercisable for at least the lesser of one year following the
Termination Date and the remainder of its maximum stated term;
(iii) to receive, through the earliest of the month
in which he dies, the month in which he attains age 65, and the first month
following the Termination Date in which he is able to work in a senior executive
capacity, with or without reasonable accommodation, and no less frequently than
monthly, periodic disability payments at an annual rate equal, through the
six-month anniversary of the Termination Date, to his annualized Base Salary as
of the Termination Date and thereafter at an annualized rate equal to $300,000,
in each case offset by the amount of any periodic disability benefits provided
(other than benefits attributable to his own unreimbursed contributions) under
any disability insurance plan or program of either of the Companies or their
Affiliates; and
(iv) the benefits described in Sections 9(i) and
9(j).
No termination of the Executive's employment hereunder for Disability shall be
effective unless (x) the Executive first gives 15 days' written notice of such
termination to each of the Companies or (y) each of the Companies first gives 15
days' written notice of such termination to the Executive.
(c) Termination for Cause.
(i) No termination of the Executive's employment
hereunder for Cause shall be effective as a termination for Cause unless the
provisions of this Section 9(c)(i) shall first have been complied with. The
Executive shall be given written notice by the Holdco Board of its intention to
terminate him for Cause, such notice (the "Cause Notice") (x) to state in detail
the particular circumstances that constitute the grounds on which the proposed
termination for Cause is based and (y) to be given no later than 90 days after
such Board first learns of such circumstances. The Executive shall have 10 days
after receiving such Cause Notice in which to cure such grounds to the
reasonable satisfaction of such Board. If he fails to timely cure such grounds,
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the Executive shall then be entitled to a hearing before such Board. Such
hearing shall be held within 15 days of his receiving such Cause Notice,
provided that he requests such hearing within 10 days of receiving such Cause
Notice. If, within ten days following such hearing (if timely requested), and
otherwise within 20 days after such Cause Notice is given to the Executive, such
Board gives written notice to the Executive confirming that, in the judgment of
at least a majority of the members of such Board, Cause for terminating his
employment on the basis set forth in the original Cause Notice exists, his
employment hereunder shall thereupon be terminated for Cause, subject to de novo
review, at the Executive's election, through arbitration in accordance with
Section 15.
(ii) In the event that the Executive's employment
hereunder is terminated for Cause in accordance with Section 9(c)(i), the Term
shall expire and he shall be entitled to (x) the right to exercise any Stock
Option, to the extent that such Stock Option is vested as of the Termination
Date, for at least the lesser of 30 days following the Termination Date and the
remainder of its maximum stated term and (y) the benefits described in Section
9(j).
(d) Termination Without Cause. In the event that the
Executive's employment hereunder is terminated by either of the Companies other
than (x) for Disability in accordance with Section 9(b); (y) for Cause in
accordance with Section 9(c)(i); or (z) by expiration of the Term pursuant to
notice of non-extension in accordance with Section 2, the Term shall expire and
he shall be entitled to:
(i) an amount, payable in a lump sum promptly
following the Termination Date, equal to (x) the sum of his annualized Base
Salary at the rate in effect as of the Termination Date plus his then-current
aggregate target annual incentive award for the calendar year of termination
times (y) the number of whole and partial months remaining in the then-scheduled
Term (but not more than 24 or less than 12) divided by (z) 12;
(ii) a Pro-Rata Annual Incentive Award;
(iii) full vesting and exercisability, as of the
Termination Date, for any outstanding Stock Option to the extent that such Stock
Option either is vested as of the Termination Date or is scheduled to become
vested on or before the second anniversary of such date, each such Stock Option
to remain exercisable for at least the lesser of two years following the
Termination Date and the remainder of its maximum stated term; and
(iv) the benefits described in Sections 9(i) and
9(j).
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(e) Constructive Termination Without Cause. In the event that
a Constructive Termination Without Cause occurs, the Term shall expire and the
Executive shall have the same entitlements as provided under Section 9(d) in the
case of a termination without Cause.
(f) Voluntary Termination. In the event that the Executive
terminates his employment hereunder prior to the then-scheduled expiration of
the Term on his own initiative, other than by death, for Disability or in a
Constructive Termination Without Cause, the Term shall expire and he shall have
the same entitlements as provided in Section 9(c)(ii) in the case of a
termination for Cause. A voluntary termination under this Section 9(f) shall not
be deemed a breach of this Agreement.
(g) Change in Control. In the event that the Executive's
employment hereunder (x) is terminated in anticipation of, or within one year
following, a Change in Control and (y) such termination is governed by Section
9(d) or 9(e) (relating to terminations without Cause), then the Executive shall,
in addition, be entitled to:
(i) in lieu of the amount provided for in Section
9(d)(i), an amount, payable in a lump sum promptly following the Termination
Date, equal to (x) the sum of his annualized Base Salary at the rate in effect
as of the Termination Date plus his then-current aggregate target annual
incentive award for the calendar year of termination times (y) the number of
whole and partial months remaining in the then-scheduled Term (but not less than
24) divided by (z) 12; and
(ii) in lieu of the benefits provided for in Section
9(d)(iii), full vesting and full exercisability, as of the Termination Date, for
any outstanding Stock Option, each such Stock Option to remain exercisable for
the remainder of its maximum stated term.
(h) Expiration of the Term. In the event that the Executive's
employment hereunder terminates by expiration of the Term pursuant to notice of
non-extension in accordance with Section 2, the Executive shall be entitled:
(i) to have any Stock Option that is, or becomes,
vested as of the Termination Date be exercisable for at least the lesser of one
year following such date and the remainder of its maximum stated term;
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(ii) if the Term expires pursuant to notice of
non-extension from the Companies, to full vesting and exercisability, as of the
Termination Date, for any outstanding Stock Option to the extent that such Stock
Option is then scheduled to become vested on or before the first anniversary of
such date; and
(iii) the benefits described in Section 9(j).
(i) Welfare Benefit Continuation. In the event that the
Executive's employment hereunder terminates other than in a termination that is
governed by Section 9(c), 9(f) or 9(h) (relating, respectively, to termination
for Cause, voluntary termination, and termination by expiration of the
then-scheduled Term), the Executive and his dependents shall be entitled to
continued participation, through the first anniversary of the Termination Date,
in all medical, dental, vision, prescription drug, hospitalization and life
insurance coverages and benefits in which they were participating as of such
date, on terms and conditions that are no less favorable to them than those
applied as of such date, and with COBRA benefits commencing thereafter.
Entitlements under the preceding sentence of this Section 9(i) shall be reduced
to the extent that equivalent coverages and benefits (determined on a
coverage-by-coverage and benefit-by-benefit basis) are provided under the plans,
programs or arrangements of a subsequent employer.
(j) Miscellaneous.
(i) On any termination of the Executive's employment
hereunder, he shall be entitled to:
(A) Base Salary through the Termination
Date;
(B) the balance of any annual, long-term, or
other incentive award earned in respect to any period ending on or prior to the
Termination Date, or payable (but not yet paid) on or prior to the Termination
Date;
(C) a lump-sum payment in respect of accrued
but unused vacation days at his Base Salary rate in effect as of the Termination
Date;
(D) other or additional benefits in
accordance with the terms of the applicable plans, programs and arrangements of
the Companies and their Affiliates (including, without limitation, Sections 6,
7, 8, 10 and 11 and any Stock Option agreement); and
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(E) payment, promptly when due, of all
amounts due in connection with the termination, such payments to be made by wire
transfer of same-day funds to the extent reasonably requested by the Executive.
(ii) For the avoidance of doubt, the Parties confirm
that on any termination of the Executive's employment hereunder, (x) his
employment with both Companies shall terminate and (y) he shall be entitled to
only one satisfaction of each of his entitlements from the Companies, and not
duplicative satisfactions from each Company.
(k) No Mitigation; No Offset. In the event of any termination
of the Executive's employment hereunder, the Executive shall be under no
obligation to seek other employment or otherwise mitigate the obligations of
either of the Companies under this Agreement, and there shall be no offset
against amounts or benefits due the Executive under this Agreement or otherwise
(except as expressly set forth in Section 9(i) above) on account of (x) any
Claim that either of the Companies may have against him except for any
outstanding loans to the extent then due and payable by him to either of the
Companies or (y) any remuneration or other benefit earned or received by the
Executive after such termination. Any amounts due under this Section 9 are
considered to be reasonable by the Companies and are not in the nature of a
penalty.
10. Change in Control.
(a) In the event that a Change in Control occurs while the
Executive is employed hereunder, any outstanding Stock Option shall become fully
vested and exercisable as of the date of the Change in Control and shall remain
exercisable for the balance of its maximum stated term. In addition, the Parties
confirm, for the avoidance of doubt, that the Executive shall also be entitled
to other or additional benefits (if any) in accordance with applicable plans,
programs and arrangements to the extent of his entitlements thereunder.
(b) If (i) the aggregate of all amounts and benefits due to
the Executive, under this Agreement or under any other plan, program, agreement
or arrangement of either Company or of any of their Affiliates, would, if
received by the Executive in full and valued under Section 280G of the Code,
constitute "parachute payments" as such term is defined in and under Section
280G of the Code (collectively, "280G Benefits"), and if (ii) such aggregate
would, if reduced by all federal, state and local taxes applicable thereto,
including the excise tax imposed pursuant to Section 4999 of the Code, be less
than the amount the Executive would receive, after all taxes, if the Executive
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received aggregate 280G Benefits equal (as valued under Section 280G of the
Code) to only three times the Executive's "base amount", as defined in and under
Section 280G of the Code, less $1.00, then (iii) such cash 280G Benefits as the
Executive shall select shall (to the extent that the reduction of such cash 280G
Benefits can achieve the intended result) be reduced or eliminated to the extent
necessary so that the 280G Benefits received by the Executive will not
constitute parachute payments. The determinations with respect to this Section
10(b) shall be made by an independent auditor (the "Auditor") paid by the
Companies. The Auditor shall be the Companies' regular independent auditor
unless the Executive reasonably objects to the use of that firm, in which event
the Auditor will be a nationally recognized United States public accounting firm
chosen by the Parties.
(c) It is possible that after the determinations and
selections made pursuant to Section 10(b) the Executive will receive 280G
Benefits that are, in the aggregate, either more or less than the amount
provided under Section 10(b) (hereafter referred to as an "Excess Payment" or
"Underpayment", respectively). If it is established, pursuant to a final
determination of a court or an Internal Revenue Service proceeding that has been
finally and conclusively resolved, that an Excess Payment has been made, such
Excess Payment shall be deemed for all purposes to be a loan to the Executive
made on the date the Executive received the Excess Payment and the Executive
shall promptly repay the Excess Payment to the Companies, together with interest
on the Excess Payment at the applicable federal rate (as defined in and under
Section 1274(d) of the Code) from the date of the Executive's receipt of such
Excess Payment until the date of such repayment. In the event that it is
determined (x) by arbitration pursuant to Section 15, (y) by a court or (z) by
the Auditor upon request by any of the Parties, that an Underpayment has
occurred, the Companies shall promptly pay an amount equal to the Underpayment
to the Executive, together with interest on such amount at the applicable
federal rate from the date such amount would have been paid to the Executive had
the provisions of Section 10(b) not been applied until the date of payment.
11. Indemnification.
(a) If the Executive is made a party, is threatened to be made
a party, or reasonably anticipates being made a party, to any Proceeding by
reason of the fact that he is or was a director, officer, member, employee,
agent, manager, trustee, consultant or representative of either of the Companies
or any of their Affiliates or is or was serving at the request of either of the
Companies or any of their Affiliates, or in connection with his service
hereunder, as a director, officer, member, employee, agent, manager, trustee,
consultant or representative of another Person, or if any Claim is made, is
threatened to be made, or is reasonably anticipated to be made, that arises out
14
of or relates to the Executive's service in any of the foregoing capacities,
then the Executive shall promptly be indemnified and held harmless to the
fullest extent permitted or authorized by the Certificate of Incorporation or
Bylaws of either of the Companies, or if greater, by applicable law, against any
and all costs, expenses, liabilities and losses (including, without limitation,
attorneys' and other professional fees and charges, judgments, interest,
expenses of investigation, penalties, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) incurred or suffered by the Executive
in connection therewith or in connection with seeking to enforce his rights
under this Section 11(a), and such indemnification shall continue as to the
Executive even if he has ceased to be a director, officer, member, employee,
agent, manager, trustee, consultant or representative of either Company or other
Person and shall inure to the benefit of his heirs, executors and
administrators. The Executive shall be entitled to prompt advancement of any and
all costs and expenses (including, without limitation, attorneys' and other
professional fees and charges) incurred by him personally in connection with any
such Proceeding or Claim, or in connection with seeking to enforce his rights
under this Section 11(a), any such advancement to be made within 15 days after
the Executive gives written notice, supported by reasonable documentation,
requesting such advancement. Such notice shall include an undertaking by the
Executive to repay the amount advanced if he is ultimately determined not to be
entitled to indemnification against such costs and expenses. Nothing in this
Agreement shall operate to limit or extinguish any right to indemnification,
advancement of expenses, or contribution that the Executive would otherwise have
(including, without limitation, by agreement or under applicable law).
(b) Neither the failure of either of the Companies (including
its Board, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any Proceeding concerning payment of
amounts claimed by the Executive under Section 11(a) that indemnification of the
Executive is proper because he has met the applicable standard of conduct, nor a
determination by either of the Companies (including its Board, independent legal
counsel or stockholders) that the Executive has not met such applicable standard
of conduct, shall create a presumption that the Executive has not met the
applicable standard of conduct.
(c) A directors' and officers' liability insurance policy (or
policies) shall be kept in place, during the Term and thereafter until the later
of (x) the sixth anniversary of the Termination Date and (y) the date on which
all claims against the Executive that would otherwise be covered by such policy
(or policies) become fully time-barred, providing coverage to the Executive that
is no less favorable to him in any respect (including, without limitation, with
15
respect to scope, exclusions, amounts, and deductibles) than the coverage then
being provided to any other present or former senior executive or director of
either of the Companies.
(d) Anything in this Agreement to the contrary
notwithstanding, the Companies shall have no obligation to indemnify the
Executive for expenses or the payment of profits arising from the purchase and
sale by the Executive of securities in violation of Section 16(b) of the 1934
Act, or any similar successor statute.
12. Restrictive Covenants.
(a) During the Term and at all times thereafter, the Executive
shall not, without the prior written consent of the relevant Company, divulge,
disclose or make accessible to any other Person any Confidential Information
except (v) to the Companies and their Affiliates, or to any authorized (or
apparently authorized) agent or representative of any of them, (w) in connection
with performing his duties hereunder, (x) when required to do so by law or by a
court, governmental agency, legislative body, arbitrator or other Person with
apparent jurisdiction to order him to divulge, disclose or make accessible such
information, (y) in the course of any Proceeding under Section 12(c) or 15 or
(z) in confidence to an attorney or other professional advisor for the purpose
of securing professional advice. In the event that the Executive is required to
disclose any Confidential Information pursuant to clause (x) or (y) of the
immediately preceding sentence, he shall (A) promptly give the relevant Company
notice that such disclosure is or may be made and (B) cooperate with the
Companies, at their reasonable request and sole expense, in seeking to protect
the confidentiality of the Confidential Information.
(b) The Executive shall not, for his own benefit or the
benefit of any other Person, without the prior written consent of the Companies
and other than in connection with his services hereunder during the Term:
(i) during the Term and for a period of 12 months
thereafter (provided that such period shall be shortened to 6 months in the
event that the Term ends in a termination of the Executive's employment that is
governed by Section 9(d), 9(e) or 9(g) (relating to without Cause and full Term
terminations)), perform material services for, or otherwise have material
involvement with (whether as an officer, director, partner, consultant, security
holder, owner, employee, independent contractor or otherwise), any Person that
competes materially (whether directly or indirectly) with the Companies in the
Business in the United States; provided that the Executive may in any event (x)
own up to a 5% passive ownership interest in any public or private entity and
16
(y) be employed by, or otherwise have material association with, any business
that competes materially with the Companies in the Business if his employment or
association is with a separately managed and operated division or Affiliate of
such business that does not compete with the Companies in the Business and he
has no business communication relating to the Business with employees of any
division or Affiliate of such business that does compete with the Companies in
the Business and (z) serve on the Board of any business as an immaterial part of
its overall business provided that he recuses himself fully and completely from
all matters relating to the Business.
(ii) during the Term and for a period of 12 months
thereafter, personally solicit, aid in the solicitation of, induce or otherwise
encourage (whether directly or indirectly) any individual who is, at the time of
such encouragement, employed as an executive, highly-compensated employee, or
managerial/supervisory employee of either of the Companies, to cease such
employment; or
(iii) during the Term and for a period of 12 months
thereafter, personally solicit, aid in the solicitation of, induce, or otherwise
encourage (whether directly or indirectly) any Person that was a customer of the
Companies at any time during the Term for the purpose of (a) selling services or
products to such Person in competition with the Companies in the Business or (b)
inducing such Person to cancel, transfer or cease doing Business in whole or in
part with the Companies;
provided, that the restrictions set forth in clauses (i), (ii) and (iii) of this
Section 12(b) shall immediately expire in the event that either of the
Companies, or any of their Affiliates, shall have materially breached, on or
after the Termination Date, any of their material obligations to the Executive
under this Agreement or otherwise, which breach shall have continued uncured for
15 days after the Executive has given written notice requesting cure.
(c) The Executive acknowledges and agrees that the Companies'
Business and the services they provide are highly competitive, and that the
restrictions contained in this Section 12 are reasonable and necessary to
protect the Companies' legitimate business interests. The Executive further
acknowledges that any actual or prospective breach may irreparably cause damage
to the Companies for which money damages may not be adequate. Therefore, in the
event of any actual or threatened breach by the Executive of any of the
provisions of Section 12(a) or 12(b) above, the Companies shall each be entitled
to seek, through arbitration in accordance with Section 15 or from any court
17
with jurisdiction over the matter and the Executive, temporary, preliminary and
permanent equitable/injunctive relief restraining the Executive from violating
such provision and to seek, in addition, but solely through arbitration in
accordance with Section 15, money damages, together with any and all other
remedies available under applicable law.
(d) The purpose of Section 12, among other things, is to
protect the Companies from unfair or inappropriate competition, to protect their
confidential information and trade secrets, and to prevent competitors from
raiding the Companies' management employees. If the scope or enforcement of
Section 12 is ever disputed, a court, arbitrator or other trier of fact may
modify and enforce its provisions to the extent it believes is lawful and
appropriate. If any provision of Section 12 is construed to be invalid, illegal
or unenforceable, then the remaining provisions therein shall not be affected
thereby and shall be enforceable without regard thereto.
13. Assignability; Binding Nature.
(a) This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors, heirs (in the case of
the Executive) and assigns.
(b) No rights or obligations of either of the Companies under
this Agreement may be assigned or transferred by such Company (each a
"Transferor") except that such rights and obligations may be assigned or
transferred pursuant to a merger, consolidation or other combination in which
the Transferor is not the continuing entity, or a sale or liquidation of all or
substantially all of the business and assets of the Transferor, provided that
the assignee or transferee is the successor to all or substantially all of the
business and assets of the Transferor and such assignee or transferee expressly
assumes the liabilities, obligations and duties of the Transferor as set forth
in this Agreement. In the event of any merger, consolidation, other combination,
sale of business and assets, or liquidation as described in the preceding
sentence, the Transferor shall use its best reasonable efforts to cause such
assignee or transferee to promptly and expressly assume the liabilities,
obligations and duties of the Transferor hereunder.
(c) No rights or obligations of the Executive under this
Agreement may be assigned or transferred by the Executive other than his rights
to compensation and benefits, which may be transferred only by will or by
operation of law, except to the extent otherwise provided in Section 17(e).
18
14. Representations.
(a) Each of the Companies represents and warrants that (i) it
is fully authorized by action of its Board (and of any other Person or body
whose action is required) to enter into this Agreement and to perform its
obligations under it, (ii) the execution, delivery and performance of this
Agreement by it does not violate any applicable law, regulation, order, judgment
or decree or any agreement, arrangement, plan or corporate governance document
(x) to which it is a party or (y) by which it is bound and (iii) upon the
execution and delivery of this Agreement by the Parties, this Agreement shall be
its valid and binding obligation, enforceable against it in accordance with its
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
(b) The Executive represents and warrants that (i) to the best
of his knowledge and belief, delivery and performance of this Agreement by him
does not violate any law or regulation applicable to the Executive, (ii)
delivery and performance of this Agreement by him does not violate any
applicable order, judgment or decree or any agreement to which the Executive is
a party or by which he is bound and (iii) upon the execution and delivery of
this Agreement by the Parties, this Agreement shall be a valid and binding
obligation of the Executive, enforceable against him in accordance with its
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
15. Resolution of Disputes. Any Claim arising out of or relating to
this Agreement, any other agreement between the Executive and either of the
Companies or their Affiliates, the Executive's employment with either of the
Companies, or any termination thereof (collectively, "Covered Claims") shall
(except to the extent otherwise provided in Section 12(c) with respect to
certain requests for injunctive relief) be resolved by binding confidential
arbitration, to be held in the Borough of Manhattan in New York City, in
accordance with the Commercial Arbitration Rules (and not the National Rules for
Resolution of Employment Disputes) of the American Arbitration Association and
this Section 15. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Pending the resolution of any
Covered Claim, the Executive (and his beneficiaries) shall continue to receive
all payments and benefits due under this Agreement or otherwise, except to the
extent that the arbitrators otherwise provide.
16. Notices. Any notice, consent, demand, request, or other
communication given to a Person in connection with this Agreement shall be in
writing and shall be deemed to have been given to such Person (x) when delivered
personally to such Person or (y), provided that a written acknowledgment of
19
receipt is obtained, five days after being sent by prepaid certified or
registered mail, or two days after being sent by a nationally recognized
overnight courier, to the address (if any) specified below for such Person (or
to such other address as such Person shall have specified by ten days' advance
notice given in accordance with this Section 16) or (z), in the case of the
Companies only, on the first business day after it is sent by facsimile to the
facsimile number set forth below (or to such other facsimile number as shall
have specified by ten days' advance notice given in accordance with this Section
16), with a confirmatory copy sent by certified or registered mail or by
overnight courier in accordance with this Section 16.
If to Holdco: CoreComm Holdco, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx, Assistant Secretary
Fax #: 000-000-0000
If to Subsidiary: CoreComm Communications, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx, Assistant Secretary
Fax #: 000-000-0000
If to the Executive: The address of his principal residence as it
appears in the Companies' records, with a
copy to him (during the Term) at his office
in Bala Cynwyd, Pennsylvania, and a copy to:
Law Offices of Xxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: 000-000-0000
If to a beneficiary The address most recently specified by the
of the Executive: Executive or beneficiary.
20
17. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire
understanding and agreement among the Parties concerning the specific subject
matter hereof and supersedes in its entirety, as of the Effective Date, any
prior employment agreement between the Executive and either of the Companies,
provided, however, that nothing herein shall limit or reduce any right or
benefit that shall have accrued to the Executive as of the Effective Date under
any prior employment agreement.
(b) Amendment or Waiver. No provision in this Agreement may be
amended unless such amendment is set forth in a writing that expressly refers to
the provision of this Agreement that is being amended and that is signed by the
Executive and by an authorized (or apparently authorized) officer of each of the
Companies. No waiver by any Person of any breach of any condition or provision
contained in this Agreement shall be deemed a waiver of any similar or
dissimilar condition or provision at the same or any prior or subsequent time.
To be effective, any waiver must be set forth in a writing signed by the waiving
Person and must specifically refer to the condition(s) or provision(s) of this
Agreement being waived.
(c) Inconsistencies. In the event of any inconsistency between
any provision of this Agreement and any provision of any employee handbook,
personnel manual, program, policy, or arrangement of either of the Companies or
their Affiliates, or any provision of any agreement, plan, or corporate
governance document of any of them, the provisions of this Agreement shall
control unless the Executive otherwise agrees in a writing that expressly refers
to the provision of this Agreement whose control he is waiving.
(d) Headings. The headings of the Sections and sub-sections
contained in this Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any provision of this
Agreement.
(e) Beneficiaries/References. The Executive shall be entitled,
to the extent permitted under applicable law, to select and change a beneficiary
or beneficiaries to receive any compensation or benefit hereunder following the
Executive's death by giving written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, references in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
21
(f) Survivorship. Except as otherwise set forth in this
Agreement, the respective rights and obligations of the Parties hereunder shall
survive any termination of the Executive's employment.
(g) Severability. To the extent that any provision or portion
of this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, the remaining provisions of this Agreement shall
remain in full force and effect so as to achieve the intentions of the Parties,
as set forth in this Agreement, to the maximum extent possible.
(h) Withholding Taxes. Each of the Companies may withhold from
any amount or benefit payable under this Agreement taxes that it is required to
withhold pursuant to any applicable law or regulation.
(i) Joint and Several Obligations. All obligations of the
Companies under this Agreement shall be joint and several. Each of the Companies
unconditionally guarantees prompt performance by the other Company of all of its
obligations to the Executive, whether under this Agreement or otherwise.
(j) Governing Law. This Agreement shall be governed,
construed, performed and enforced in accordance with its express terms, and
otherwise in accordance with the laws of the State of New York, without
reference to principles of conflict of laws.
(k) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall be deemed to be one and the same instrument. Signatures delivered
by facsimile shall be effective for all purposes.
22
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
CoreComm Holdco, Inc.
By: ______________________________________
Name:
Title:
CoreComm Communications, Inc.
By: ______________________________________
Name:
Title:
The Executive
------------------------------------
Xxxxxx X. Xxxxxxx
23
EXHIBIT A
DEFINITIONS
a. "Affiliate" of a Person shall mean any Person that directly
or indirectly controls, is controlled by, or is under common control with, such
Person.
b. "Agreement" shall mean this Employment Agreement, which
includes for all purposes its Exhibits.
c. "Applicable Budget" shall mean (x) for calendar year 2002,
the budget documentation approved by the Holdco Board and submitted to XX Xxxxxx
Chase as provided under the Companies' Senior Secured Credit Facility with XX
Xxxxxx Xxxxx and (y) for any subsequent calendar year, the corresponding budget
documentation approved by the Holdco Board and submitted to the Companies'
senior secured lender(s) or, if no such documentation is submitted or if such
documentation fails to set forth quarter-end EBITDA and FCF targets, the budget
documentation for such year approved by the Holdco Board for the Companies'
financial planning and corporate planning purposes. The Holdco Board shall
approve an Applicable Budget for each calendar year during the Term.
d. "Board" shall mean, in the case of a corporation, the board
of directors of such corporation and, in the case of any other entity, the
corresponding governing Person.
e. "Budgeted EBITDA" shall mean EBITDA as set forth in the
Applicable Budget.
f. "Budgeted FCF" shall mean FCF as set forth in the
Applicable Budget.
g. "Business" shall mean any and all material businesses
conducted by the Companies during the Term, including but not limited to the
following businesses to the extent conducted by the Companies during the Term:
the competitive super-regional carrier, local exchange carrier and interexchange
carrier businesses and the business of providing integrated access or broadband
connectivity to the commercial segment and assisting organizations in
streamlining and managing their communications and telecommunications services.
h. "Cause" shall mean:
24
i. the Executive is convicted of, or pleads guilty or
nolo contendere to, a felony;
ii. in carrying out his duties hereunder, including
any fiduciary duties or duties of loyalty he owes to the Companies, the
Executive engages in conduct that constitutes willful gross neglect or willful
gross misconduct that, in either case, results in material economic harm to the
Companies;
iii. the Executive willfully breaches any provision
of this Agreement (including, without limitation, the restrictive covenants
contained in Section 12), and such breach results in significant harm to the
Companies;
iv. the Executive engages in willful gross misconduct
in the operation of the Companies that brings the Companies into public disgrace
or disrepute;
v. repeated refusal, or failure by the Executive to
undertake good faith efforts, to perform duties or responsibilities as
reasonably directed by the Boards of the Companies; or
vi. the Executive engages in willful gross misconduct
resulting in or intended to result in direct personal gain to the Executive at
the Companies' expense.
i. "Change in Control" shall mean the occurrence of any of the
following events:
i. any "person", as such term is used as of the
Effective Date in Section 13(d) of the 1934 Act, or group of persons, becomes
(directly or indirectly) a "beneficial owner", as such term is used as of the
Effective Date in Rule 13d-3 promulgated under that Act, of a percentage of the
Voting Securities of either of the Companies (measured either by number of
Voting Securities or by voting power) that is at least 20 percentage points
larger than the percentage (if any) of the Voting Securities of such Company
(measured in the same fashion) that such person or group of persons beneficially
owned (directly or indirectly) on the Effective Date;
ii. a majority of the Board of either of the
Companies consists of individuals other than "Incumbent Directors," which term
means the members of such Board on the Effective Date; provided that any
individual becoming a director subsequent to such date whose election or
25
nomination for election was supported (other than in connection with any actual
or threatened proxy contest) by two-thirds of the directors who then comprised
the Incumbent Directors shall be considered to be an Incumbent Director;
iii. (x) either of the Companies combines with
another entity and is the surviving entity, or (y) all or substantially all of
the assets or business of either of the Companies is disposed of pursuant to a
sale, merger, consolidation, liquidation, dissolution or other transaction or
series of transactions (collectively, a "Triggering Event") unless the holders
of Voting Securities of such Company immediately prior such Triggering Event
own, directly or indirectly, by reason of their ownership of Voting Securities
of such Company immediately prior to such Triggering Event, more than two thirds
of the Voting Securities (measured both by number of Voting Securities and by
voting power) of (q) in the case of a combination in which such Company is the
surviving entity, the surviving entity and (r) in any other case, the entity (if
any) that succeeds to substantially all of such Company's business and assets;
or
iv. a voluntary, or involuntary, petition under any
chapter of the United States Bankruptcy Code is filed in respect of either of
the Companies and is not dismissed, or resolved, within sixty days of filing.
j. "Claim" shall include, without limitation, any claim,
demand, request, investigation, dispute, controversy, threat, discovery request,
or request for testimony or information.
k. "Code" shall mean the Internal Revenue Code of 1986, as
amended. Any reference to a particular section of the Code shall include any
provision that modifies, replaces or supersedes such section.
l. "Common Stock" shall mean Common Stock, par value $0.01, of
Holdco.
m. "Confidential Information" shall mean all confidential or
proprietary information developed or used by the Companies or their Affiliates
relating to their business, operations, employees, customers, suppliers or
distributors including, but not limited to: confidential or proprietary customer
lists, purchase orders, financial data, pricing information and price lists;
confidential or proprietary business plans and market strategies and
arrangements; confidential or proprietary books, records, manuals, advertising
26
materials, catalogues, correspondence, mailing lists, production data, sales
materials, sales records, purchasing materials, purchasing records, personnel
records and quality control records; confidential or proprietary trademarks,
copyrights and patents, and applications therefor; trade secrets; confidential
or proprietary inventions, processes, procedures, research records, market
surveys and marketing know-how; and confidential or proprietary technical
papers, software, computer programs, data bases and documentation thereof,
including but not limited to source codes, algorithms, processes, formulae and
flow charts. The term "Confidential Information" shall not include any document,
record, data compilation, or other information that (x) has previously been
disclosed to the public, or is in the public domain, other than as a result of
the Executive's breach of Section 12(a), or (y) is known or generally available
to the public or within any trade or industry of the Companies or any of their
Affiliates.
n. "Constructive Termination Without Cause" shall mean a
termination by the Executive of his employment hereunder on 30 days' written
notice given by him to the Companies following the occurrence of any of the
following events without his express prior written consent, unless all grounds
for such termination shall have been fully cured within 30 days after the
Executive gives notice to the Companies requesting cure:
i. any failure to continue the Executive as
President, Chief Executive Officer and a member of the Board of each of the
Companies;
ii. any material diminution in the Executive's
responsibilities or authorities; the assignment to him of duties that are
materially inconsistent with, or materially impair his ability to perform, the
duties then assigned to him; or any change in the reporting structure so that
the Executive is required (x) to report, in his role as President and Chief
Executive Officer of Holdco, to any person other than the Holdco Board and its
Chairman or (y) to report, in his role as President and Chief Executive Officer
of Subsidiary, to any Person other than the Subsidiary Board;
iii. any relocation of the Executive's principal
office, or principal place of employment, to a location that is more than 40
miles from its location in Bala Cynwyd, Pennsylvania, as of the Effective Date;
iv. any material breach by either of the Companies or
their Affiliates of any of their obligations under Sections 3 through 8, 10 or
11, or of any of their representations or warranties in Section 14(a), or of any
material term of, or representation in, any Stock Option agreement, equity
grant, or long-term incentive agreement; or
27
v. any failure of either of the Companies to obtain
the assumption in writing of its obligations under this Agreement by any
successor to all or substantially all of its business or assets within 30 days
after any reconstruction, amalgamation, combination, merger, consolidation,
sale, liquidation, dissolution or similar transaction.
In addition, any termination by the Executive of his employment hereunder during
the 60-day period that commences 180 days after the occurrence of any Change in
Control shall be deemed to be a Constructive Termination Without Cause.
o. "Disability" shall mean the Executive's inability, with or
without reasonable accommodation and due to physical or mental incapacity, to
substantially perform his duties and responsibilities hereunder either for a
period of 180 consecutive days, or for an aggregate of 270 days in any 365 day
period.
p. "EBITDA" shall mean earnings for a given period before
interest, taxes, depreciation and amortization, as described in the Company's
public press releases and financial statements.
q. "Executive" shall have the meaning set forth in the
preamble to this Agreement, as modified by Section 17(e).
r. "FCF" shall mean the net change in a given period of the
Company's cash balance as indicated on its financial statements, such balance to
include cash, cash equivalents and marketable securities.
s. "Fair Market Value", when used in respect of a security as
of a specified date, shall mean (x) the closing price of the security on the
principal national securities exchange or national market system on which such
security is then listed or traded, in each case as of the close of normal
trading on such date, or if such date is not a trading day or such security is
not traded on such date, on the most recent day preceding such date on which
such security was traded, and (y) if such security is not so listed or traded,
then the value as promptly agreed by the Companies and the Executive, or, in
absence of such prompt agreement, fair market value as determined on a
going-forward basis without discount for lack of liquidity, minority status,
lack of control, contractual restrictions, or similar factors.
t. "1934 Act" shall mean the Securities Exchange Act of 1934,
as amended.
28
u. "1933 Act" shall mean the Securities Act of 1933, as
amended.
v. "Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, trust, estate, board,
committee, agency, body, employee benefit plan, or other person or entity.
w. "Proceeding" shall include, without limitation, any actual,
threatened or reasonably anticipated action, suit or proceeding, whether civil,
criminal, administrative, investigative, appellate, formal, informal or other.
x. "Pro-Rata Annual Incentive Award" shall mean an amount
equal to the product obtained by multiplying (x) the aggregate amount of the
annual incentive award that the Executive would have been entitled to receive
for the calendar year during which his employment hereunder terminated if his
employment hereunder had continued times (y) a fraction, the numerator of which
is the number of days he was employed hereunder during such year and the
denominator of which is the number of days in such year. Any Pro-Rata Annual
Incentive Award shall be paid promptly following the completion of such calendar
year in accordance with Section 5(d), and shall be reduced by the amount of any
quarterly or other payments already made to the Executive in respect of an
annual incentive award under Section 5 for such year.
y. "Stock Option" shall mean any compensatory option or
warrant to acquire securities of either of the Companies or their Affiliates;
any compensatory stock appreciation right, phantom stock option or analogous
right granted by or on behalf of either of the Companies or their Affiliates;
and any option or right received in respect of any of the foregoing options or
rights. The term "Stock Option" includes, without limitation, the Initial Stock
Option.
z. "Termination Date" shall mean the date on which the
Executive's employment hereunder terminates in accordance with this Agreement.
aa. "Voting Securities" shall mean issued and outstanding
securities of any class or classes having general voting power, under ordinary
circumstances in the absence of contingencies, to elect, the members of the
Board of the issuer.
29
EXHIBIT B
STOCK OPTION AGREEMENT
1. Grant of Option. CoreComm Holdco, Inc., a Delaware corporation (the
"Company"), hereby grants to Xxxxxx X. Xxxxxxx (the "Optionee"), effective as of
January 11, 2002 (the "Grant Date"), an option to purchase an aggregate of
385,000 shares of its Common Stock at a price of $3.00 per share, exercisable as
set forth in, and subject to the terms and conditions of, this Stock Option
Agreement and the Employment Agreement dated as of January 1, 2002 among the
Company, CoreComm Limited, CoreComm Communications, Inc., and the Optionee (the
"Employment Agreement").
2. Exercisability of Option.
(a) Beginning as of the Grant Date, this option shall be
vested, and exercisable, with respect to one-third of the shares of Common Stock
that are subject to this option; thereafter, as of 12:01 a.m. on each of January
1, 2003 and January 1, 2004, this option shall vest and become exercisable with
respect to a further one-third of the shares of Common Stock that are subject to
this option, and thus shall become fully exercisable as to all such shares no
later than January 1, 2004.
(b) In the event that the Term of Employment is terminated in
accordance with Section 9(a) or 9(b) of the Employment Agreement (relating to
death and Disability), this option (x) shall become exercisable as of the
Termination Date for all shares for which it would have become exercisable
(pursuant to Section 2(a) above) through the first anniversary of such date, and
(y) shall remain exercisable for all shares for which it is, or becomes,
exercisable as of the Termination Date until the earlier of: (i) 11:59 p.m. on
the first anniversary of the such date or (ii) the tenth anniversary of the
Grant Date, at which time it shall expire to the extent that it has not yet been
exercised.
(c) In the event that the Term of Employment is terminated in
accordance with Section 9(c) or 9(f) of the Employment Agreement (relating to
Cause and voluntary terminations), this option, to the extent that it is or
becomes exercisable as of the Termination Date, shall remain fully exercisable
until the earlier of: (i) 11:59 p.m. on the 30th day following such date or (ii)
the tenth anniversary of the Grant Date, at which time it shall expire to the
extent that it has not yet been exercised.
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(d) In the event that the Term of Employment is terminated in
accordance with Section 9(d) or 9(e) of the Employment Agreement (relating to
terminations without Cause), this option (x) shall become fully vested and
exercisable as of the Termination Date for all shares that are then subject to
it and (y) shall remain fully exercisable until the earlier of: (i) 11:59 p.m.
on the second anniversary of the Termination Date or (ii) the tenth anniversary
of the Grant Date, at which time it shall expire to the extent that it has not
yet been exercised.
(e) In the event that the Term of Employment terminates by
expiration pursuant to notice of non-extension in accordance with Section 2 of
the Employment Agreement, this option (x) shall, in the event that the
termination is not pursuant to notice of non-extension from the Optionee, become
fully vested and exercisable as of the Termination Date for all shares for which
it would have become exercisable (pursuant to Section 2(a) above) through the
first anniversary of such date and (y) shall, to the extent that it is, or
becomes, exercisable as of the Termination Date, remain exercisable until the
earlier of: (i) 11:59 p.m. on the first anniversary of such date or (ii) the
tenth anniversary of the Grant Date, at which time it shall expire to the extent
that it has not yet been exercised.
(f) Anything elsewhere to the contrary notwithstanding, (x)
upon the occurrence of any Change in Control that occurs during the Term of
Employment and (y) upon any termination of the Executive's employment that is in
anticipation of, or within twelve months following, a Change in Control and that
is governed by Section 9(d) or 9(e) of the Employment Agreement (relating to
terminations without Cause), this option shall become fully vested and
exercisable with respect to all shares that are subject to it and shall remain
fully exercisable until 11:59 p.m. on the tenth anniversary of the Grant Date.
(g) Anything elsewhere to the contrary notwithstanding, this
option shall, to the extent that it has not then yet been exercised, expire at
11:59 p.m. on the tenth anniversary of the Grant Date.
3. Exercise of Option.
(a) Method of Exercise. Subject to the conditions set forth in
this Stock Option Agreement, this option may be exercised from time to time by
delivery of written notice of exercise to the Company from the Optionee. Such
notice shall specify the total number of shares to be purchased and shall be
accompanied by payment in full (or an arrangement for payment in full) in
accordance with Section 3(b) below. Such exercise shall be effective upon
delivery to the Company of such written notice together with the required
payment (or arrangement for payment). This option may be exercised for less than
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the full number of shares for which the option is then exercisable, provided
that no such exercise may be for any fractional share.
(b) Method of Payment. Payment of the purchase price for
shares purchased upon an exercise of this option may be made (i) by delivery to
the Company of cash, a wire transfer of available funds, or a check payable to
the order of the Company in an amount equal to the purchase price of such
shares; (ii) by delivery to the Company of shares of Common Stock then owned by
the Optionee for at least six months having an aggregate Fair Market Value as of
the date of delivery equal to the purchase price of such shares; (iii) through
reasonable cashless exercise procedures that are from time to time established
by the Company and that afford the Optionee the opportunity to sell immediately
some or all of the shares underlying the exercised portion of this option in
order to generate sufficient cash to pay the option purchase price; or (iv) by
any combination of (i), (ii) or (iii).
(c) Delivery of Shares Tendered in Payment of Purchase Price.
Payment by delivery of shares may be effected by delivering one or more stock
certificates or by otherwise delivering shares to the Company's reasonable
satisfaction (including, without limitation, through an "attestation" procedure
that is reasonably acceptable to the Company), in each case accompanied by such
endorsements, stock powers, signature guarantees or other documents or
assurances as may reasonably be required by the Company. If a certificate or
certificates or other documentation representing shares in excess of the amount
required are delivered, a certificate (or other satisfactory evidence of
ownership) representing the excess number of shares shall promptly be returned
by the Company.
(d) Delivery of Option Shares. The Company shall, upon payment
in accordance with Section 3(a) above of the aggregate purchase price for the
number of shares purchased, make prompt delivery of such shares to the Optionee
and pay all original issue and transfer taxes and all other fees and expenses
incident to such delivery. All shares delivered upon any exercise of this option
shall, when delivered, (i) be duly authorized, validly issued, fully paid and
nonassessable, (ii) be registered for sale, and for resale, under U.S. state and
federal securities laws to the extent that other shares of the same class are
then so registered or qualified and (iii) be listed, or otherwise qualified, for
trading on any securities exchange or securities market on which shares of the
same class are then listed or qualified. To the extent that shares are not
promptly delivered to the Optionee when due, the Company shall promptly make the
Optionee whole for any resulting expense or loss of benefit. The Company shall
deliver cash in lieu of any fractional share.
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4. Deferral of Option Gains. The Optionee shall have the right, by
furnishing written notice to the Company at least six months prior to any
exercise of this option, to elect to defer any gains realized upon or in
connection with such exercise. Any such deferral, including the manner of
exercise of this option in connection with such deferral, shall be made in such
manner as may reasonably be required by the Company in order to defer such gains
for Federal income tax purposes. At the time the Optionee elects to defer such
gains, such gains shall be deferred into any non-qualified deferral plan of the
Company that accepts such deferrals on terms that satisfy the requirements of
the preceding sentence. If no such plan is available, the Optionee may make an
irrevocable election to defer such gains into Share Units (with a "Share Unit"
representing a share of Common Stock, including any dividends and other
distributions that may be declared or made thereon during the period of the
deferral). Amounts deferred under this Section 4 shall be paid out under the
terms of the Optionee's election to defer.
5. Nontransferability of Option. This option is personal and no rights
granted hereunder may be transferred, assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) nor shall any such rights be
subject to execution, attachment or similar process, except that this option may
be transferred in whole or in part (x) by will or the laws of descent and
distribution or (y) gratuitously to any Family Member who agrees to be bound by
the provisions of this Stock Option Agreement. For purposes of clause (y) of the
preceding sentence, "Family Member" shall mean "family member" as such term is
used as of the Grant Date in Section A1(a)(5) of the General Instructions to SEC
Form S-8. Any Person to whom this option has been transferred in whole or in
part in accordance with the first sentence of this Section 5 shall, to the
extent of the transfer, succeed to the rights, and assume the obligations, of
the Optionee under Sections 2, 3, 5 through 8 and 11 of this Stock Option
Agreement, except that the transferee may not transfer this option (in whole or
in part) pursuant to clause (y) of the preceding sentence to any Person to whom
the original Optionee would not have been permitted to transfer this option (in
whole or in part). The Optionee shall give notice to the Company of any transfer
of this option, in whole or in part, pursuant to clause (y) of the first
sentence of this Section 5.
6. Adjustment Provisions. In the event that, at any time after January
11, 2002, any merger, consolidation, reorganization, recapitalization, spin-off,
split-up, combination, modification of securities, exchange of securities,
liquidation, dissolution, share split, share dividend, other distribution of
securities or other property in respect of shares or other securities (other
than ordinary recurring cash dividends), or other change in corporate structure
or capitalization affecting the rights or value of securities of any class then
subject to this option occurs, appropriate adjustment(s) shall promptly be made
in the number and/or kind of securities subject to this option and/or in the
exercise price and/or in other terms and conditions of this option, and/or
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appropriate provision(s) shall promptly be made for supplemental distributions
of cash, securities and/or other property, so as to avoid dilution or
enlargement of the rights of the Optionee and the value represented by this
option. If an event occurs that may require an adjustment (or other action)
pursuant to this Section 6, the Company shall promptly deliver to the Optionee a
certificate, signed by an officer of the Company, setting forth in reasonable
detail (x) the event in question and (y) either the adjustment (or other action)
being implemented and the method by which such adjustment (or other action) was
calculated or determined or the reasons why the Company believes no adjustment
(or other action) is needed.
7. Roll-Over Options. Without limiting the foregoing, in the event of
any merger, consolidation or other transaction (x) in which the Company is not
the surviving entity or the Company becomes a Subsidiary of another entity and
(y) following which the surviving entity or any Person of which it is a
Subsidiary, or, if the Company survives as a Subsidiary of another entity, then
such other entity or any Person of which such other entity is a Subsidiary, has
publicly traded equity securities issued and outstanding, the Company shall take
such steps as are necessary to assure that the Optionee shall (if he so elects)
be provided a replacement option that (x) is exercisable for publicly traded
equity securities of the surviving entity, or of a Person of which the Company
or the surviving entity is a Subsidiary, as the case may be, and (y) provides
terms, conditions and an after-tax economic opportunity (including, without
limitation, an aggregate spread value) no less favorable to the Optionee than
did this option immediately prior to such transaction. For purposes of this
Section 7, "Subsidiary", when used in respect of any Person, shall mean any
entity 50% or more of whose equity interests (measured either by Fair Market
Value or by voting power) are owned, directly or indirectly through one or more
Subsidiaries or Affiliates, by such Person.
8. Change in Control. In the event that holders of securities of any
class that is then subject to this option receive cash, securities or other
property in respect of such securities in connection with a Change in Control
transaction, the Company shall take such steps as are necessary to enable the
Optionee (if he so elects) to exercise this option at a time and in a fashion
that will entitle him to receive in exchange for any securities thus acquired
the same consideration as is received in such Change in Control transaction by
other holders of securities of that class.
9. Tax Withholding. The Company's obligation to deliver shares upon the
exercise of this option shall be subject to the Optionee's satisfaction of all
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applicable Federal, state and local income, excise, employment and other tax
withholding requirements ("tax obligations"). The Optionee may satisfy any such
tax obligations in any of the manners provided in Section 3(b) above for payment
of the purchase price; .
10. The Company's Representations. The Company represents and warrants
that (a) it is fully authorized by action of its Board (and of any Person or
body whose action is required) to enter into this Stock Option Agreement and to
perform its obligations under it; (b) the execution, delivery and performance of
this Stock Option Agreement by the Company does not violate any applicable law,
regulation, order, judgment or decree or any agreement, plan or corporate
governance document (x) to which it (or, to the best of its knowledge and
belief, any of its security holders or creditors) is a party or (y) by which it
(or, to the best of its knowledge and belief, any of its security holders or
creditors) is bound; and (c) upon the execution and delivery of this Stock
Option Agreement by the Company and the Optionee, this Stock Option Agreement
shall be the valid and binding obligation of the Company, enforceable in
accordance with its terms, except to the extent enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
11. Miscellaneous.
(a) Any Claim arising out of or relating to this Stock Option
Agreement shall be resolved by binding arbitration in accordance with Section 15
of the Employment Agreement.
(b) All notices and other communications relating to this
Stock Option Agreement shall be given as provided in Section 16 of the
Employment Agreement.
(c) Sections 17(b), 17(c), 17(d), 17(e) (second sentence
only), 17(f), 17(g), 17(j) and 17(k) of the Employment Agreement (relating,
respectively, to amendment and waiver, inconsistencies, headings, references,
survivorship, severability, governing law and counterparts) shall be deemed
incorporated herein in full, with the references to the "Agreement" in such
Sections being treated as references to this Stock Option Agreement, the
references to the "Executive" in such Sections being treated as references to
the original Optionee and the references to the "Companies" in such Sections
being treated as references to the Company only.
(d) All capitalized terms not defined in this Stock Option
Agreement shall have the meanings set forth in the Employment Agreement. "Term
of Employment" shall mean the "Term" as defined in the Employment Agreement.
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(e) Nothing contained in this Stock Option Agreement shall be
construed or deemed by any Person under any circumstances to bind the Company to
continue the employment of the Optionee for any particular period of time.
Grant Date: January 11, 2002
CoreComm Holdco, Inc.
By:_________________________________
Name:
Title:
ACCEPTED
OPTIONEE
-----------------------------------
Xxxxxx X. Xxxxxxx
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