Exhibit 10.15
AMENDED EMPLOYMENT AGREEMENT
Robert Larson
This AMENDED EMPLOYMENT AGREEMENT (the "Agreement") is dated as of December
24, 2008 (the "Effective Date") by and between Frontier Communications
Corporation (the "Company") and Robert Larson ("Executive").
WHEREAS, Executive and the Company entered into an employment agreement
(the "Original Agreement") as of September 1, 2004 (the "Original Effective
Date"), embodying the terms of Executive's employment and pursuant to which
Executive has been serving as a Senior Vice President and as the Company's
Controller and Chief Accounting Officer; and
WHEREAS, this Agreement amends and restates the Original Agreement as of
the Effective Date in order, inter alia, to evidence formal compliance with
Section 409A of the Internal Revenue Code of 1986, as amended, and the guidance
thereunder (such Section, referenced herein as "Section 409A"; and such code,
referenced herein as the "Code");
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment. Subject to the provisions of Section 8 of this
Agreement, Executive shall be employed by the Company, and any of its
subsidiaries that the Chief Executive Officer (the "CEO") or the Board of
Directors of the Company (the "Board") shall designate for a period commencing
on the Original Effective Date and ending on the fifth anniversary thereof (the
"Initial Term"), on the terms and subject to the conditions set forth in this
Agreement. Following the Initial Term, the term of employment under this
Agreement shall automatically be renewed for additional terms of one year on the
last day of the Initial Term and each anniversary of the last day of the Initial
Term (the Initial Term and any annual extensions of the term of this Agreement,
referenced together herein as the "Employment Term"), subject to Section 8 of
this Agreement, unless the Company or the Executive gives the other party
written notice of non-renewal at least ninety (90) days prior to such last day
or anniversary.
2. Position.
a. During the Employment Term, Executive shall serve as Senior Vice
President and as the Company's Controller and Chief Accounting Officer and shall
report directly to the Chief Financial Officer of the Company. In such position,
Executive shall have such duties and authority commensurate with the position of
controller and chief accounting officer of a company of similar size and nature
and as the Company's Chief Financial Officer shall otherwise determine from time
to time.
b. During the Employment Term, Executive will devote Executive's full
business time and best efforts (excluding any periods of vacation or sick leave)
to the performance of Executive's duties hereunder and will not engage in any
other business, profession or occupation for compensation or otherwise which
would conflict or interfere with the rendition of such services either directly
or indirectly, without the prior written consent of the Board; provided that
nothing herein shall preclude Executive, subject to the prior approval of the
Board, from accepting appointment to or continue to serve on any board of
directors or trustees of any business corporation or any charitable
organization, provided in each case in the aggregate, that such activities do
not conflict or interfere with the performance of Executive's duties hereunder
or conflict with Section 10 of this Agreement.
3. Base Salary. During the Employment Term, the Company shall pay Executive
a base salary at the annual rate of $175,000, payable in substantially equal
periodic payments in accordance with the Company's practices for other executive
employees, as such practices may be determined from time to time. Executive
shall be entitled to such increases in Executive's base salary, if any, as may
be determined from time to time in the sole discretion of the Chief Financial
Officer, the CEO and the Board. Executive's annual base salary, as in effect
from time to time, is hereinafter referred to as the "Base Salary."
4. Annual Bonus. During the Employment Term, Executive shall be eligible to
earn an annual bonus award (an "Annual Bonus"), with a target bonus amount equal
to 50% of the Base Salary (the "Target Bonus"), with adjustments based on the
schedules set forth in the Citizens Incentive Plan or any successor plan, as
each may be amended from time to time (the "Incentive Plan"), but the
adjustments shall in no event be less favorable to Executive than those set
forth in such Plan for the 2004 calendar year. The Annual Bonus for a calendar
year shall be paid no later than permitted under the Incentive Plan and no later
than the date that other officers of the Company are paid their annual bonuses
for such calendar year.
5. Long-Term Incentive. With respect to each fiscal year during the
Employment Term, the Company shall grant no later than each March of the
following year to Executive a number of restricted shares of common stock (the
"Restricted Shares") with an aggregate value equal to between $200,000 and
$300,000, as determined by the Compensation Committee of the Board (the
"Compensation Committee"). Subject to Section 8(b)(ii)(D) and Section
8(c)(iii)(E), below, each annual grant of Restricted Shares shall vest and
become non-forfeitable as to twenty (20) percent of the shares initially
granted, on each anniversary of the date of grant and shall be fully vested and
100 percent non-forfeitable upon the fifth anniversary of the date of grant.
6. Employee Benefits; Business Expenses.
a. Employee Benefits. During the Employment Term, Executive (and his
eligible dependents) shall be entitled to participate in the Company's pension,
profit sharing, medical, dental, life insurance and other employee benefit plans
(other than severance plans) (the "Company Plans"), as in effect from time to
time (collectively the "Employee Benefits") on the same basis as those benefits
are generally made available to other executives at his level of the Company.
b. Business Expenses. During the Employment Term, reasonable business
expenses incurred by Executive in the performance of Executive's duties
hereunder shall be reimbursed by the Company in accordance with the Company's
policies.
7. [Intentially Left Blank.]
8. Termination. Executive's employment hereunder may be terminated by
either party at any time and for any reason; provided that Executive will be
required to give the Company at least 60 days advance written notice of any
resignation of Executive's employment. Notwithstanding any other provision of
this Agreement other than Section 13(l) through (p), the provisions of this
Section 8 shall exclusively govern Executive's rights upon termination of
employment with the Company.
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a. By the Company For Cause or By Executive Resignation Without Good
Reason.
(i) The Employment Term and Executive's employment hereunder may be
terminated by the Company for Cause (as defined below) and shall terminate
automatically upon Executive's resignation without Good Reason; provided that
Executive will be required to give the Company at least 60 days advance written
notice of such resignation.
(ii) For purposes of this Agreement, "Cause" shall mean Executive's (A)
willful and continued failure (other than as a result of physical or mental
illness or injury) to perform his material duties (as described in Section 2) to
the Company or its subsidiaries which continues beyond 10 days after a written
demand for substantial performance is delivered to Executive by the Company (the
"Cure Period"), which demand shall identify and describe such failure with
sufficient specificity to allow Executive to respond; (B) willful or intentional
conduct that causes material and demonstrable injury, monetarily or otherwise,
to the Company; (C) conviction of, or a plea of nolo contendere to, a crime
constituting (x) a felony under the laws of the United States or any state
thereof or (y) a misdemeanor involving moral turpitude; or (D) material breach
of this Agreement, including, without limitation, engaging in any action in
breach of Section 9 or Section 10 of this Agreement, which continues beyond the
Cure Period (to the extent that, in the Board's reasonable judgment, such breach
can be cured). For purposes of this Section 8(a)(ii), no act, or failure to act,
on the part of Executive shall be considered "willful" or "intentional" unless
it is done, or omitted to be done, by Executive in bad faith and without
reasonable belief that Executive's action or inaction was in the best interests
of the Company. Any act, or failure to act, based upon authority given pursuant
to a resolution duly adopted by the Board or upon the instructions of the Chief
Financial Officer of the Company or other senior officer of the Company or based
upon the advice of counsel for the Company shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and in the best
interests of the Company.
(iii) If Executive's employment is terminated by the Company for Cause, or
if Executive resigns without Good Reason, Executive shall be entitled to
receive:
(A) the Base Salary through the date of termination, paid in
substantially equal periodic installments on the schedule specified in
Section 3 (but not less frequently than monthly);
(B) any Annual Bonus earned but unpaid as of the date of termination
for any previously completed fiscal year, paid no later than permitted
under the Incentive Plan and no later than the date that other officers of
the Company are paid their annual bonuses for any such year;
(C) reimbursement for any unreimbursed business expenses properly
incurred by Executive in accordance with Company policy prior to the date
of Executive's termination, paid at the time specified in Section 13(m);
(D) any accrued but unpaid vacation, paid in accordance with the terms
of the Company's vacation policy; and
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(E) such Employee Benefits, if any, to which Executive may be entitled
under the applicable Company Plans upon termination of employment hereunder (the
payments and benefits described in clauses (A) through (E) hereof being referred
to, collectively, as the "Accrued Rights").
As necessary for compliance with the requirements of the Code and
notwithstanding any contrary provision of this subsection, payments under this
subsection are subject to Section 13(l) through (p). Following such termination
of Executive's employment by the Company for Cause or resignation by Executive,
except as set forth in this Section 8(a)(iii) and Section 8(g), Executive shall
have no further rights to any compensation or any other benefits under this
Agreement.
b. Disability or Death.
(i) Executive's employment hereunder shall terminate upon Executive's death
and may be terminated by the Company if Executive becomes physically or mentally
incapacitated and is therefore unable for a period of six (6) consecutive months
or for an aggregate of nine (9) months in any twelve (12) consecutive month
period to perform Executive's duties (such incapacity is hereinafter referred to
as "Disability"). Any question as to the existence of the Disability of
Executive as to which Executive and the Company cannot agree shall be determined
in writing by a qualified independent physician mutually acceptable to Executive
and the Company. If Executive and the Company cannot agree as to a qualified
independent physician, each shall appoint such a physician and those two
physicians shall select a third who shall make such determination in writing.
The determination of Disability made in writing to the Company and Executive
shall be final and conclusive for all purposes of the Agreement.
(ii) Upon termination of Executive's employment hereunder for either
Disability or death, Executive or Executive's estate (as the case may be), shall
be entitled to receive:
(A) the Accrued Rights;
(B) continued payment of Executive's Base Salary during the period
commencing on the date of Executive's termination of employment and ending
on the date that is six months after the date of Executive's termination of
employment (applying the definition of such term in Section 13(n)), paid in
substantially equal periodic installments on the schedule specified in
Section 3, but not less frequently than monthly (such continued Base Salary
shall be subject to the six-month delay as applicable under Section 13(o)
and (p));
(C) a pro rata portion of the Annual Bonus, if any, that Executive
would have been entitled to receive pursuant to the Citizens Incentive Plan
in the year of termination, based on actual performance through the date of
termination; and
(D) all Restricted Shares that have been granted as of the date of
Executive's termination shall be fully vested and non-forfeitable as of
such date, and Executive shall not be entitled to any further annual grants
of Restricted Shares under Section 5 of this Agreement.
(iii) Upon termination of Executive's employment hereunder due to
Executive's death or Disability, in addition to the benefits described in
Section 8(b)(ii) above, the Company shall provide Executive (in the event of his
Disability) and Executive's spouse with health benefits (pursuant to the same
Company Plans that are health benefit plans and that are in effect for active
employees of the Company), until the second anniversary of the date of
Executive's death or Disability.
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(A) To the extent that such health benefit plan coverage is provided
under a self-insured plan maintained by the Company (within the meaning of
Section 105(h) of the Code):
(I) the charge to Executive for each month of coverage will equal
the monthly COBRA charge established by the Company for such coverage
in which the Executive or the Executive's spouse (as applicable) is
enrolled from time to time, based on the coverage generally provided
to salaried employees (less the amount of any administrative charge
typically assessed by the Company as part of its COBRA charge), and
Executive will be required to pay such monthly charge in accordance
with the Company's standard COBRA premium payment requirements; and
(II) on the date of Executive's termination of employment within
the meaning of Section 13(n), the Company will pay Executive a lump
sum in cash equal, in the aggregate, to the monthly COBRA charge
established by the Company on the payment date for family coverage
with respect to the highest value health coverage provided to salaried
employees under such self-insured plan for each month of coverage in
the two year period. For this purpose, the Company's monthly COBRA
charge for family coverage will be increased by 10% on each January in
the projected payment period and such increased amount shall apply to
each successive month in the calendar year in which the increase
became applicable.
(B) To the extent that such health benefit plan coverage is provided
is provided under a fully-insured medical reimbursement plan (within the
meaning of Section 105(h) of the Code), there will be no charge to
Executive for such coverage.
As necessary for compliance with the requirements of the Code and
notwithstanding any contrary provision of this subsection, payments under this
subsection are subject to Section 13(l) through (p). Following Executive's
termination of employment due to death or Disability, except as set forth in
this Section 8(b), Executive shall have no further rights to any compensation or
any other benefits under this Agreement.
c. By the Company Without Cause or by Executive Resignation for Good
Reason.
(i) Executive's employment hereunder may be terminated (A) by the
Company without Cause (which shall not include Executive's termination
of employment due to his Disability) or (B) by Executive for Good
Reason (as defined below).
(ii) For purposes of this Agreement, "Good Reason" shall mean
(A) the failure of the Company to pay or cause to be paid
Executive's Base Salary or Annual Bonus, when due hereunder,
(B) any substantial and sustained diminution in Executive's
authority or responsibilities from those described in Section 2
hereof,
(C) a relocation of Executive's principal office location
more than 25 miles from the Company's Stamford, Connecticut
headquarters area, or
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(D) any other material breach of a material provision of
this Agreement;
provided that any of the events described in subparagraphs (A), (B), (C) or (D)
of this Section 8(c)(ii) shall constitute Good Reason only if (I) the Company
fails to cure such event within 30 days after receipt from Executive of written
notice of the event which constitutes Good Reason (with sufficient specificity
from Executive for the Company to respond to such claim) and (II) Executive
terminates employment with the Company within two years after the initial
existence of such event or circumstances.
(iii) If Executive's employment is terminated by the Company without
Cause (other than by reason of death or Disability) or by Executive for
Good Reason, subject to Executive's satisfaction of the release
requirements set forth in Section 8(f)(ii), the Company (1) shall then pay
or provide to the Executive the compensation and benefits described in
subparagraphs (A) and (D) below, (2) shall begin paying to the Executive
the compensation described in subparagraphs (B) and (C), and (3) the
vesting provided for by subparagraph (E) below shall apply, in each case on
the Expiration Date (as defined in Section 8(f)(ii)):
(A) the Accrued Rights;
(B) subject to Executive's continued compliance with the
provisions of Section 9 and Section 10 of this Agreement, the amount
that is equal to 1/36th of the sum of -
(I) three times Executive's annual Base Salary in effect on
the date of Executive's termination of employment (the
"Termination Date"), and
(II) two times Executive's annual Target Bonus in effect on
the Termination Date,
shall be paid each month for the 36-month period commencing on the Termination
Date (it being understood that Executive shall receive no payment until the
Expiration Date at which time Executive shall receive a catch-up payment on the
Expiration Date that includes all monthly installments due for the period from
the Termination Date through the Expiration Date) (with such 36-month period
constituting the "Severance Period") (such catch-up payment and continued
installments shall be subject to a six-month delay as applicable under Section
13(o) and (p)); provided, however, that any payments described in this
subparagraph (B) that are exempt from Section 409A shall be reduced or offset
entirely, at the time such payments are otherwise required to be made under this
subparagraph (B), by any amounts due and owing by Executive to the Company for
funds borrowed from or advanced by the Company (to the extent permitted under
applicable law);
(C) continuation of health benefits (pursuant to the same Company
Plans that are health benefit plans and that are in effect for active
employees of the Company) with health benefit coverage retroactive to
the Termination Date (once the Expiration Date is reached and the
release is in effect), and then continuing until the earlier to occur
of the end of the Severance Period and the date on which Executive
becomes eligible to receive comparable benefits from any subsequent
employer
(I) To the extent that such health benefit plan coverage is
provided under a self-insured plan maintained by the Company
(within the meaning of Section 105(h) of the Code):
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(1) the charge to Executive for each month of coverage
will equal the monthly COBRA charge established by the
Company for such coverage in which the Executive or the
Executive's spouse (as applicable) is enrolled from time to
time, based on the coverage generally provided to salaried
employees (less the amount of any administrative charge
typically assessed by the Company as part of its COBRA
charge), and Executive will be required to pay such monthly
charge in accordance with the Company's standard COBRA
premium payment requirements; and
(2) upon termination of employment, the Company will
pay Executive a lump sum in cash equal, in the aggregate, to
the monthly COBRA charge established by the Company on the
payment date for family coverage with respect to the highest
value health coverage provided to salaried employees under
such self-insured plan for each month of coverage in the
36-month period. For this purpose, the Company's monthly
COBRA charge for family coverage will be increased by 10% on
each January in the projected payment period and such
increased amount shall apply to each successive month in the
calendar year in which the increase became applicable.
(II) To the extent that such health benefit plan coverage is
provided is provided under a fully-insured medical reimbursement
plan (within the meaning of Section 105(h) of the Code), there
will be no charge to Executive for such coverage; and
(D) a lump sum equal to the full-year annual Target Bonus in
effect on the Termination Date.
(E) all Restricted Shares shall be vested and non-forfeitable as
of the Expiration Date, and all options granted to Executive that are
not vested as of the Termination Date shall become vested and
non-forfeitable and fully exercisable.
As necessary for compliance with the requirements of the Code and
notwithstanding any contrary provision of this subsection, payments under this
subsection are subject to Section 13(l) through (p). Following Executive's
termination of employment by the Company without Cause (other than by reason of
Executive's death or Disability) or Executive for Good Reason, except as set
forth in Section 8(c)(iii) above, Executive shall have no further rights to any
compensation or any other benefits under this Agreement.
d. Change in Control.
(i) Subject to Executive's satisfaction of the release requirements
set forth in Section 8(f)(ii), Executive shall also be entitled to the
benefits set forth in Section 8(c)(iii) above if, within one year following
a Change in Control (defined below), Executive terminates his employment as
a result of: (A) any decrease by the Company of the Base Salary or Target
Bonus; (B) any decrease in Executive's pension benefit opportunities or any
material diminution in the aggregate employee benefits; or (C) any material
diminution in Executive's title, reporting relationships, duties or
responsibilities (each, a "Constructive Termination Event"); provided that
any of the events described above shall constitute a Constructive
Termination Event only if (X) the Company fails to cure such event within
30 days after receipt from Executive of written notice of the event which
constitutes a Constructive Termination Event; provided, further, that a
"Constructive Termination Event" shall cease to exist for an event on the
60th day following the later of its occurrence or Executive's knowledge
thereof, unless Executive has given the Company written notice thereof
prior to such date. As necessary for compliance with the requirements of
the Code and notwithstanding any contrary provision of this subsection,
payments under this subsection are subject to Section 13(l) through (p).
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(ii) For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred:
(A) When any "person" as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
as used in Section 13(d) and 14(d) thereof, including a "group" as
defined in Section 13(d) of the Exchange Act (but excluding the
Company and any subsidiary and any employee benefit plan sponsored or
maintained by the Company or any subsidiary (including any trustee of
such plan acting as trustee)), directly or indirectly, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
of securities of the Company representing 50% or more of the combined
voting power of the Company's then outstanding securities; or
(B) Upon the consummation of any merger or other business
combination involving the Company, a sale of substantially all of the
Company's assets, liquidation or dissolution of the Company or a
combination of the foregoing transactions (the "Transactions") other
than a Transaction immediately following which the shareholders of the
Company immediately prior to the Transaction own, in the same
proportion, at least 51% of the voting power, directly or indirectly,
of (i) the surviving corporation in any such merger or other business
combination; (ii) the purchaser of or successor to the Company's
assets; (iii) both the surviving corporation and the purchaser in the
event of any combination of Transactions; or (iv) the parent company
owning 100% of such surviving corporation, purchaser or both the
surviving corporation and the purchaser, as the case may be.
(iii) Excess Parachute Payments.
(A) If it is determined (as hereafter provided) that any payment,
benefit or distribution by the Company to or for the benefit of
Executive, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise pursuant to or by
reason of any other agreement, policy, plan, program or arrangement,
including without limitation any stock option, restricted stock award,
stock appreciation right or similar right, or the lapse or termination
of any restriction on or the vesting or exercisability of any of the
foregoing (a "Severance Payment"), would be subject to the excise tax
imposed by Section 4999 of the Code (or any successor provision
thereto) by reason of being "contingent on a change in ownership or
control" of the Company, within the meaning of Section 280G of the
Code (or any successor provision thereto) or to any similar tax
imposed by state or local law, or any interest or penalties with
respect to such excise tax (such tax or taxes, together with any such
interest and penalties, are hereafter collectively referred to as the
"Excise Tax"), then Executive shall receive the greater of (x) the
aggregate amount of the Severance Payments, after payment by Executive
of the Excise Tax imposed on the aggregate Severance Payments, and (y)
the aggregate amount of the Severance Payments which could be paid to
Executive under Section 280G of the Code without causing any loss of
deduction to the Company under such Section (the "Capped Payments").
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(B) Subject to the provisions of Section 8(d)(iii)(A) hereof, all
determinations required to be made under this Section 8(d), including
whether an Excise Tax is payable by Executive and the amount of such
Excise Tax, shall be made by the nationally recognized firm of
certified public accountants (the "Accounting Firm") used by the
Company prior to the "change in ownership or control (or, if such
Accounting Firm declines to serve, the Accounting Firm shall be a
nationally recognized firm of certified public accountants selected by
Executive). The Accounting Firm shall be directed by the Company or
Executive to submit its preliminary determination and detailed
supporting calculations to both the Company and Executive within 15
calendar days after the date of Executive's termination of employment,
if applicable, and any other such time or times as may be requested by
the Company or Executive. If the Accounting Firm determines that any
Excise Tax is payable by Executive, the Company shall either (x) make
payment of the Severance Payments, less all amounts withheld in
respect of the Excise Tax, as required by applicable law, or (y)
reduce the Severance Payments by the amount which, based on the
Accounting Firm's determination and calculations, would provide
Executive with the Capped Payments, and pay to Executive such reduced
amounts. If the Accounting Firm determines that no Excise Tax is
payable by Executive, it shall, at the same time as it makes such
determination, furnish Executive with an opinion that he has
substantial authority not to report any Excise Tax on his federal,
state, local income or other tax return. All fees and expenses of the
Accounting Firm shall be paid by the Company in connection with the
calculations required by this Section.
(C) The federal, state and local income or other tax returns
filed by Executive (or any filing made by a consolidated tax group
which includes the Company) shall be prepared and filed on a
consistent basis with the determination of the Accounting Firm with
respect to the Excise Tax payable by Executive. Executive shall make
proper payment of the amount of any Excise Tax, and at the request of
the Company, provide to the Company true and correct copies (with any
amendments) of his federal income tax return as filed with the
Internal Revenue Service and corresponding state and local tax
returns, if relevant, as filed with the applicable taxing authority,
and such other documents reasonably requested by the Company,
evidencing such payment.
e. Notice of Termination. Any purported termination of employment by the
Company or by Executive (other than due to Executive's death) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 13(h) hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
f. Board/Committee Resignation; Execution of Release of all Claims.
(i) Upon termination of Executive's employment for any reason,
Executive agrees to resign, as of the date of such termination and to the
extent applicable, from the Board (and any committees thereof) and the
board of directors (and any committees thereof) of any of the Company's
subsidiaries or affiliates.
(ii) Upon termination of Executive's employment for any reason other
than death or Disability, Executive agrees to execute a release of all then
existing claims against the Company, its subsidiaries, affiliates,
shareholders, directors, officers, employees and agents. Notwithstanding
anything set forth in this Agreement to the contrary, upon termination of
Executive's employment for any reason other than death or Disability,
Executive shall not receive any payments or benefits to which he may be
entitled hereunder (other than those which by law cannot be subject to the
execution of a release, which shall be paid without regard to any release
either (A) at the time when due, or (B) as of Executive's Termination Date,
if the specific payment or benefit is subject to Section 409A and a payment
date sufficient to satisfy Section 409A is not otherwise stated for such
payment or benefit) unless Executive satisfies the release requirements of
this Section 8(f)(ii). The release required by this Section 8(f)(ii) shall
be provided to the Executive not later than the Termination Date. To comply
with this Section 8(f)(ii), Executive must sign and return the release
within 45 days of the Termination Date, and Executive must not revoke it
during a seven-day revocation period that begins when the release is signed
and returned to the Company. Then following the expiration of this
revocation period, there shall occur the "Expiration Date," which is the
53rd day following the Executive's termination of employment.
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9. Non-Competition/Non-Solicitation/Non-Disparagement.
a. Executive acknowledges and recognizes the highly competitive nature
of the businesses of the Employer and its affiliates and accordingly agrees
that, during the Employment Term and, for a period of one year following
any termination of Executive's employment with the Company (the "Restricted
Period"), Executive will not, whether on Executive's own behalf or on
behalf of or in conjunction with any person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise whatsoever ("Person"), directly or indirectly engage in any
business that directly or indirectly competes with the business of the
Company, or otherwise engage in competition with the Company which is
materially detrimental to the Company;
(i) During the Restricted Period, Executive will not, whether on
Executive's own behalf or on behalf of or in conjunction with any
Person, directly or indirectly:
(A) solicit or encourage any employee of the Company or its
affiliates to leave the employment of the Company or its
affiliates; or
(B) hire any such employee who was employed by the Company
or its affiliates as of the date of Executive's termination of
employment with the Company or who left the employment of the
Company or its affiliates coincident with, or within one year
prior to or after, the termination of Executive's employment with
the Company.
b. Executive shall not at any time issue any press release or make any
public statement about the Company or any director, officer, employee,
successor, parent, subsidiary or agent or representative of, or attorney to
the Company (any of the foregoing, a "Company Affiliate") regarding (i) any
of the foregoing's financial status, business, services, business methods,
compliance with laws, or ethics or otherwise, or (ii) regarding Company
personnel, directors, officers, employees, attorneys, agents, including,
without limitation, in respect of both clauses (i) and (ii), any statement
that is intended or reasonably likely to disparage the Company or any
Company Affiliate, or otherwise degrade any Company Affiliate's reputation
in the business, industry or legal community in which any such Company
Affiliate operates; provided, that, Executive shall be permitted to (a)
make any statement that is required by applicable securities or other laws
to be included in a filing or disclosure document, subject to prior notice
to the Company thereof, and (b) defend himself against any statement made
by the Company or any Company Affiliate that is intended or reasonably
likely to disparage or otherwise degrade Executive's reputation in the
business, industry or legal community in which Executive operates, only if
Executive reasonably believes that the statements made in such defense are
not false statements and (c) provide truthful testimony in any legal
proceeding.
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c. It is expressly understood and agreed that although Executive and
the Company consider the restrictions contained in this Section 9 to be
reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against
Executive, the provisions of this Agreement shall not be rendered void but
shall be deemed amended to apply as to such maximum time and territory and
to such maximum extent as such court may judicially determine or indicate
to be enforceable. Alternatively, if any court of competent jurisdiction
finds that any restriction contained in this Agreement is unenforceable,
and such restriction cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other
restrictions contained herein.
10. Confidentiality.
a. Executive will not at any time (whether during or after Executive's
employment with the Company) (x) retain or use for the benefit, purposes or
account of Executive or any other Person; or (y) disclose, divulge, reveal,
communicate, share, transfer or provide access to any Person outside the
Company (other than its professional advisers who are bound by
confidentiality obligations), any non-public, proprietary or confidential
information -- including without limitation rates, trade secrets, know-how,
research and development, software, databases, inventions, processes,
formulae, technology, designs and other intellectual property, information
concerning finances, investments, profits, pricing, costs, products,
services, vendors, customers, clients, partners, investors, personnel,
compensation, recruiting, training, advertising, sales, marketing,
promotions, government and regulatory activities and approvals --
concerning the past, current or future business, activities and operations
of the Company, its subsidiaries or affiliates and/or any third party that
has disclosed or provided any of same to the Company on a confidential
basis ("Confidential Information") without the prior written authorization
of the Board.
b. "Confidential Information" shall not include any information that
is (a) generally known to the industry or the public other than as a result
of Executive's breach of this covenant or any breach of other
confidentiality obligations by third parties; (b) made legitimately
available to Executive by a third party without breach of any
confidentiality obligation; or (c) required by law to be disclosed;
provided that Executive shall give prompt written notice to the Company of
such requirement, disclose no more information than is so required, and
cooperate with any attempts by the Company to obtain a protective order or
similar treatment.
c. Except as required by law, Executive will not disclose to anyone,
other than Executive's immediate family and legal or financial advisors,
the existence or contents of this Agreement; provided that Executive may
disclose to any prospective future employer the provisions of Section 9 and
10 of this Agreement provided that such potential employer agrees to
maintain the confidentiality of such terms.
d. Upon termination of Executive's employment with the Company for any
reason, Executive shall immediately destroy, delete, or return to the
Company, at the Company's option, all originals and copies in any form or
medium (including memoranda, books, papers, plans, computer files, letters
and other data) in Executive's possession or control (including any of the
foregoing stored or located in Executive's office, home, laptop or other
computer, whether or not Company property) that contain Confidential
Information or otherwise relate to the business of the Company, its
affiliates and subsidiaries, except that Executive may retain only those
portions of any personal notes, notebooks and diaries that do not contain
any Confidential Information.
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e. The provisions of this Section 10 shall survive the termination of
Executive's employment for any reason.
11. Specific Performance. Executive acknowledges and agrees that the
Employer's remedies at law for a breach or threatened breach of any of the
provisions of Section 9 or Section 10 of this Agreement would be inadequate and
the Company would suffer irreparable damages as a result of such breach or
threatened breach. In recognition of this fact, Executive agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at law,
the Company, without posting any bond, shall be entitled to cease making any
payments or providing any benefit otherwise required by this Agreement and
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available.
12. Arbitration. Except as provided in Section 11, any other dispute
arising out of or asserting breach of this Agreement, or any statutory or common
law claim by Executive relating to his employment under this Agreement or the
termination thereof (including any tort or discrimination claim), shall be
exclusively resolved by binding statutory arbitration in accordance with the
Employment Dispute Resolution Rules of the American Arbitration Association.
Such arbitration process shall take place in New York, New York. A court of
competent jurisdiction may enter judgment upon the arbitrator's award. All costs
and expenses of arbitration (including fees and disbursements of counsel) shall
be borne by the respective party incurring such costs and expenses.
13. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut, without regard to
conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the employment of Executive by
the Company. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject
matter herein other than those expressly set forth herein. This Agreement
may not be altered, modified or amended except by written instrument signed
by the parties hereto.
c. No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a
waiver of such party's rights or deprive such party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
d. Severability. In the event that any one or more of the provisions
of this Agreement shall be or become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement, and all of Executive's rights and
duties hereunder, shall not be assignable or delegable by Executive. Any
purported assignment or delegation by Executive in violation of the
foregoing shall be null and void ab initio and of no force and effect. This
Agreement may be assigned by the Company to a person or entity which is an
affiliate or a successor in interest to substantially all of the business
operations of the Company. Upon such assignment, the rights and obligations
of the Company hereunder shall become the rights and obligations of such
affiliate or successor person or entity.
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f. Set Off; Mitigation. The Company's obligation to pay Executive the
amounts provided and to make the arrangements provided hereunder shall be
subject to set-off, counterclaim or recoupment of amounts owed by Executive
to the Company or its affiliates. Executive shall not be required to
mitigate the amount of any payment provided for pursuant to this Agreement
by seeking other employment or otherwise and the amount of any payment
provided for pursuant to this Agreement shall not be reduced by any
compensation earned as a result of Executive's other employment or
otherwise.
g. Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon the Company and its subsidiaries and
Executive and any personal or legal representatives, executors,
administrators, successors, assigns, heirs, distributees, devisees and
legatees. Further, the Company will require any successor (whether, direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company and any successor to its business and/or assets which is
required by this Section 13(g) to assume and agree to perform this
Agreement or which otherwise assumes and agrees to perform this Agreement;
provided, however, in the event that any successor, as described above,
agrees to assume this Agreement in accordance with the preceding sentence,
as of the date such successor so assumes this Agreement, the Company shall
cease to be liable for any of the obligations contained in this Agreement.
h. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered by hand or overnight
courier or three days after it has been mailed by United States registered
mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below in this Agreement, or to such other
address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be
effective only upon receipt.
If to the Company:
Frontier Communications Corporation
Three High Ridge Park
Building 3
Stamford, Connecticut 06905
Attention: Hilary E. Glassman, Esq.
If to Executive:
To the most recent address of Executive set forth in the personnel
records of the Company.
i. Executive Representation. Executive hereby represents to the
Company that the execution and delivery of this Agreement by Executive and
the Company and the performance by Executive of Executive's duties
hereunder shall not constitute a breach of, or otherwise contravene, the
terms of any employment agreement or other agreement or policy to which
Executive is a party or otherwise bound.
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j. Prior Agreements. This Agreement supercedes all prior agreements
and understandings (including verbal agreements) between Executive and the
Company and/or its affiliates regarding the terms and conditions of
Executive's employment with the Company and/or its affiliates.
k. Cooperation. Executive shall provide Executive's reasonable
cooperation in connection with any action or proceeding (or any appeal from
any action or proceeding) which relates to events occurring during
Executive's employment hereunder. This provision shall survive any
termination of this Agreement.
l. Withholding Taxes. The Company may withhold from any amounts
payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
m. Expense Reimbursements. To the extent that any expense
reimbursement provided for by this Agreement does not qualify for exclusion
from Federal income taxation, the Company will make the reimbursement only
if Executive incurs the corresponding expense during the term of this
Agreement and submits the request for reimbursement no later than two
months prior to the last day of the calendar year following the calendar
year in which the expense was incurred so that the Company can make the
reimbursement on or before the last day of the calendar year following the
calendar year in which the expense was incurred; the amount of expenses
eligible for such reimbursement during a calendar year will not affect the
amount of expenses eligible for such reimbursement in another calendar
year; and the right to such reimbursement is not subject to liquidation or
exchange for another benefit from the Company.
n. Meaning of Termination of Employment. Solely as necessary to comply
with Section 409A and to this extent for purposes of Section 8(b)(ii),
Section 8(b)(iii), Section 8(c)(iii), Section 8(d)(i), Section 8(f)(ii),
Section 13(o), Section 13(p) and any other provision where this definition
is specifically referenced, "termination of employment" shall have the same
meaning as "separation from service" under Section 409A(a)(2)(A)(i) of the
Code. In addition, to avoid having such a separation from service occur
after the Executive's termination of employment, the Executive shall not
have (after the Executive's termination of employment) any duties or
responsibilities that are inconsistent with the termination of employment
being treated as such a separation from service as of the date of such
termination.
o. Installment Payments. For purposes of Section 8(b)(ii)(B) with
respect to amounts payable in the event of termination of employment on
account of Disability and Section 8(c)(iii)(C) with respect to amount
payable in the event of termination of Executive's employment by the
Company without Cause or by Executive for Good Reason or Constructive
Termination Event, each such payment is a separate payment within the
meaning of the final regulations under Section 409A. Each such payment
shall be subject to delay in accordance with Section 13(p) below except to
the extent a payment can be considered in good faith (i) to be exempt from
Section 409A as a short-term deferral within the meaning of the final
regulations under Section 409A, or (ii) to be exempt under the two-times
exception of Treasury Reg. ss. 1.409A-1(b)(9)(iii) up to the limitation on
the availability of such exception specified in such regulation.
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p. Section 409A. This Agreement will be construed and administered to
preserve the exemption (if any) from Section 409A of payments that qualify
as a short-term deferral or that qualify for the two-times exception. With
respect to other amounts that are subject to Section 409A, it is intended,
and this Agreement will be so construed, that any such amounts payable
under this Agreement and the Company's and Executive's exercise of
authority or discretion hereunder shall comply with the provisions of
Section 409A and the treasury regulations relating thereto so as not to
subject Executive to the payment of interest and additional tax that may be
imposed under Section 409A. As a result, in the event Executive is a
"specified employee" on the date of Executive's termination of employment
(with such status determined by the Company in accordance with rules
established by the Company in writing in advance of the "specified employee
identification date" that relates to the date of Executive's termination of
employment or, if later, by December 31, 2008, or in the absence of such
rules established by the Company, under the default rules for identifying
specified employees under Section 409A), any payment that is subject to
Section 409A, that is payable to Executive in connection with Executive's
termination of employment, shall not be paid earlier than six months after
such termination of employment (if Executive dies after the date of
Executive's termination of employment but before any payment has been made,
such remaining payments that were or could have been delayed will be paid
to Executive's estate without regard to such six-month delay). This Section
13(p) is an absolutely superseding provision under this Agreement. This
means that it will apply notwithstanding other provisions in the Agreement
that permit or require payment at an earlier time (and notwithstanding
terms in such other provisions that may provide for their application
without regard to other provisions of the Agreement).
q. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
Frontier Communications Corporation
By:/s/ Cecilia K. McKenney
--------------------------------------------------
Name: Cecilia K. McKenney
Title: EVP, HR & Call Center Sales & Services
EXECUTIVE:
/s/ Robert Larson
- ----------------------------------------
Robert Larson
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