EXHIBIT 10.18
AGREEMENT
This AGREEMENT (this "Agreement") is made and entered into as of this
31st day of July, 1997 by and between ST ENTERPRISES, LTD., a Delaware
corporation (the "Company"), and XXXX X. XXXX, an employee of the Company (the
"Executive").
RECITALS:
WHEREAS, the Company and the Executive desire to set forth herein the
terms and conditions of certain severance arrangements for the Executive.
NOW, THEREFORE, in consideration of the mutual promises, agreements
and mutual covenants set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending legally to be bound, hereby agree as follows:
1. Termination Upon a Change of Control. In the event that the
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Company terminates the Executive's employment with the Company upon a Change of
Control (as defined below), the Executive shall be entitled to receive from the
Company in a lump sum payment, an amount equal to the Executive's base salary as
of the date of termination for a period of twelve (12) months. In addition, the
Company shall maintain the Executive's long term disability and medical benefits
for a period of twelve (12) months following the date of termination. For
purposes of this Agreement, a "Change of Control" shall be deemed to have
occurred if: (a) the stockholders of the Company or MJD Communications, Inc.
("MJD") on the date hereof, and following the consummation of the transactions
contemplated by the Stock Purchase Agreement (the "Stock Purchase Agreement")
dated as of March 6, 1997 by and among MJD, MJD Partners, L.P., Carousel Capital
Partners, L.P., Xxxxx Investment Associates V, L.P. and Xxxxx Equity Partners V,
L.P., no longer own, either directly or indirectly, shares of capital stock of
the Company entitling them to 51% in the aggregate of the voting power for the
election of the directors of the Company, as a result of a merger or
consolidation of the Company, a transfer of capital stock of the Company or
otherwise, or (b) the Company or MJD sells, assigns, conveys, transfers, leases
or otherwise disposes of, in one transaction or a series of related
transactions, all or substantially all of its property or assets to any other
person or entity.
2. Termination Without Cause. In the event that the Executive's
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employment with the Company is terminated without "cause" and not as a result of
a Change of Control, the Executive shall be entitled to receive in a lump sum
payment from the Company, an amount equal to the Executive's base salary for
such period as of the date of termination for a period of six (6) months plus
all accrued and unpaid base salary and benefits as of the date of termination.
In addition, the Company shall maintain the Executive's long term disability and
medical benefits for a period of six (6) months following the date of
termination. For purposes of this Agreement, the term "cause" shall mean:
(a) misappropriating any funds or any material property of the
Company;
(b) obtaining or attempting to obtain any material personal
profit from any transaction in which the Executive has an interest which is
adverse to the interest of the Company unless the Company shall first give
its consent to such transaction;
(c) (i) neglecting or refusing to perform the duties required by
the terms of his employment, (ii) the willful taking of actions which
directly impair the Employee's ability to perform the duties required by
the terms of his employment; or (iii) taking any action detrimental to the
Company's goodwill or damaging to the Company's relationships with its
customers, suppliers or employees; provided that such neglect or refusal,
action or breach shall have continued for a period of twenty (20) days
following written notice thereof;
(d) being convicted of or pleading nolo contendere to any crime
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or offense constituting a felony under applicable law or any crime or
offense involving fraud or moral turpitude;
(e) acting or refraining from acting in respect of any of the
duties required by the terms of his employment and the Board of Directors
of the Company determines that such action or inaction constituted gross
negligence or a willful act of malfeasance or misfeasance; or
(f) any material intentional failure to comply with applicable
laws or governmental regulations.
3. Termination for Cause. In the event that the Executive's
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employment is terminated for cause, the Executive shall not be entitled to any
benefits pursuant to this Agreement.
4. Severability. If any provision of this Agreement is held to be
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illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement, and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement.
5. Miscellaneous.
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(a) Counterparts. This Agreement may be executed in several
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counterparts each of which is an original. This Agreement and any
counterpart so executed shall be deemed to be one and the same instrument.
It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
(b) Contents of Agreement; Parties In Interest, Etc. This
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Agreement sets forth the entire understanding of the parties. Any previous
agreements or understandings between the parties regarding the subject
matter hereof are merged into and superseded by this Agreement. All
representations, warranties, covenants, terms, conditions and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, legal representatives, successors and
permitted assigns of the Company and the Employee. Neither this Agreement
nor any rights, interests or obligations hereunder may be assigned by any
party without the prior written consent of the other party hereto.
(c) NEW YORK LAW TO GOVERN. THIS AGREEMENT SHALL BE CONSTRUED
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AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
(d) Section Headings. The section headings herein have been
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inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof.
(e) Notices. All notices, requests, demands and other
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communications which are required or permitted hereunder shall be
sufficient if given in writing and delivered personally or by registered or
certified mail, postage prepaid, or by facsimile transmission (with a copy
simultaneously sent by registered or certified mail, postage prepaid), as
follows (or to such other address as shall be set forth in a notice given
in the same manner):
(1) If to the Company, to:
ST Enterprises, Ltd.
c/o MJD Communications, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
Copies to:
Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
(2) If to the Executive, to:
Xxxx X. Xxxx
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(f) Modification and Waiver. Any of the terms or conditions of
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this Agreement may be waived in writing at any time by the party which is
entitled to the benefits thereof, and this Agreement may be modified or
amended at any time by the Company and the Executive. No supplement,
modification or amendment of this Agreement shall be binding unless
executed in writing by each of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof nor shall such waiver constitute a continuing
waiver.
(g) Third Party Beneficiaries. Except as otherwise expressly set
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forth herein, no individual or entity shall be a third-party beneficiary of
the representations, warranties, covenants and agreements made by any party
hereto.
(h) Termination of Prior Arrangements. The parties hereto
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acknowledge and agree that this Agreement supersedes and terminates all
existing severance agreements or arrangements between the Company or any of
its affiliates and the Executive including without limitation the severance
arrangements approved by the Compensation Committee of the Company on
August 17, 1994, without any liability thereunder from the Company, the
Buyers (as defined in the Stock Purchase Agreement) or the Subsidiaries (as
defined in the Stock Purchase Agreement).
IN WITNESS WHEREOF, the parties hereto have executed or have caused
this Agreement to be duly executed as of the date first above written.
EXECUTIVE EMPLOYER
ST ENTERPRISES, INC.
______________________
Xxxx X. Xxxx
By:
Name:
Title:
