Exhibit (10)(iii)(A)(11)
to Form 10-K 1994
SEPARATION AND CONSULTING AGREEMENT
AND WAIVER AND RELEASE*
Cincinnati Bell Inc., an Ohio corporation ("the Company"), and Sheldon
Horing ("Horing"), in consideration of the mutual promises made herein, hereby
agree as follows:
1. EFFECTIVE DATE.
This Agreement shall commence on March 11, 1994 (the "Effective Date") and
shall continue until terminated as provided in Section 9 below. However, it is
understood and agreed that the covenants contained in Sections 4, 5 and 6 shall
survive the termination of the Agreement.
2. RESIGNATION OF OFFICES.
On the Effective Date Horing shall resign from the offices of Executive
Vice President of the Company and President and Chief Executive Officer of
Cincinnati Bell Information Systems Inc. ("CBIS") and shall give up all the
authority and accoutrements of those offices (except as otherwise provided in
this Agreement) including, but not limited to:
(a) the current office space, equipment (except as listed in Exhibit
A attached hereto) and clerical support owned or furnished by the Company or
CBIS;
(b) all documents or other tangible materials which in any way relate
to the business of the Company, or any Related Company, and were furnished to
Horing by the Company or any Related Company or prepared, compiled, used or
acquired by Horing while employed by the Company or any Related Company; and
*YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT AND
RELEASE
(c) all keys, combinations and access codes to the premises,
facilities and equipment (including, without limitation, offices, desks, storage
cabinets, safes, data processing systems and communications equipment (except as
listed in Exhibit A attached hereto)) of the Company and all Related Companies,
whether furnished to Horing by the Company or any Related Company or prepared,
used or acquired by Horing while employed by the Company or any Related Company.
As used in this Agreement, a company will be deemed to be a "Related Company" if
it is a direct or indirect subsidiary of the Company or is a joint venture,
partnership or similar entity of which the Company or a direct or indirect
subsidiary of the Company is the controlling person.
3. CONSULTING.
During the period from the Effective Date through March 10, 1996 (the
"Consultant Termination Date"), Horing will serve as a consultant to the Company
and CBIS. Horing shall have such specific consulting duties as may be agreed
upon by the President of the Company and Horing; provided that such duties shall
be limited to those normally performed by and requiring the skills of a senior
level manager.
It is understood and agreed that, in performing his duties as a consultant
under this Agreement, Horing shall be an employee of CBIS. All reasonable
expenses incurred by Horing in the course of the performance of any required
consulting services will be reimbursable in accordance with CBIS' then-current
travel and expense policies with regard to employees.
As of the close of business on the Consultant Termination Date (or, if
earlier, the date on which this Agreement terminates), Horing shall cease to be
an employee of the Company and all Related Companies.
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Horing may accept employment with another employer prior to the Consultant
Termination Date provided that he remains in compliance with the provisions of
Sections 4, 5 and 6 and provided that such other employment does not
unreasonably interfere with his availability to perform the consulting duties
called for under this Section 3.
4. TRADE SECRETS AND NON-COMPETITION.
(a) The Company and the Related Companies are engaged in the
information services, telecommunication and marketing support services
industries within the U.S. and worldwide. Horing acknowledges that in the
course of his employment with the Company he has been entrusted with or obtained
access to confidential information proprietary to the Company and Related
Companies with respect to the following (all of which information is referred to
hereinafter collectively as the "Property"): the organization and management of
the Company and its Related Companies'; names, addresses, buying habits or other
special information regarding past, present and potential customers, employees
and suppliers of the Company and its related companies; customer and supplier
contracts and transactions or price lists of the Company, and Related Companies
and suppliers; products, services, programs and processes sold, licensed or
developed by the Company and Related Companies; technical data, plans and
specifications, present and/or future development projects of the Company and
Related Companies; financial and/or marketing data respecting the conduct of the
present or future phases of business of the Company and Related Companies;
computer programs, systems and/or software; ideas, inventions, trademarks,
business information, know-how, processes, improvements, designs, redesigns,
discoveries and developments of the Company and Related Companies; strategic
knowledge of pending acquisitions of land and/or building space; and other
information maintained as confidential by the Company or any Related Company;
provided, however, that no such information or material shall be deemed included
in the definition of "Property" hereunder
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if the Company or Related Companies have failed to take and maintain reasonable
precautions and measures to protect the confidentiality and security of such
information or materials or if, for any reason other than the actions of Horing,
such information or materials have become generally available and accessible
outside of the Company and Related Companies to competitors or the general
public.
Horing agrees that he will continue to retain the Property in absolute
confidence and not to disclose to any person or organization any proprietary
information without the express written consent of the Company. Horing agrees
that this Agreement does not supersede any such preexisting obligations and that
they are incorporated herein by reference.
Notwithstanding any other provision contained in this Agreement, including
without limitation this Section 4 and Section 6, in the event that Horing shall
be required by any Federal, state or local ordinance, any regulation or
directive of any governmental agency or any court order or legal process to
disclose any information, including without limitation the Property, Horing may,
without breach, default or violation of any provision of this Agreement, comply
with such requirement, provided that Horing shall give to Company immediate
notice upon becoming aware of such requirement and shall cooperate with the
Company in any efforts it may determine to undertake to seek a protective order
or otherwise to prohibit disclosure of any requested information.
(b) In consideration of the compensation paid Horing and to be paid
Horing pursuant to Section 7, Horing agrees that it is reasonable and necessary
for the protection of the goodwill and business of the Company that Horing make
the covenants contained in Sections 4, 5 and 6 regarding his conduct during and
subsequent to his employment and consulting relationship with the Company and
that the Company will suffer irreparable injury if he engages in conduct
prohibited under those Sections. Horing represents that he has thoroughly
reviewed the terms of those covenants, including the time periods stated
therein, and that his experience and/or abilities are such that
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observance of such covenants will not cause him undue hardship nor will it
unreasonably interfere with his ability to earn a livelihood. The covenants
contained in Sections 4, 5 and 6 shall each be construed as a separate agreement
independent of any other provisions of this Agreement, and the existence of any
claim or cause of action of Horing against the Company or any Related Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of any of those covenants.
(c) Horing covenants that, as long as he remains employed under this
Agreement and for a period of two years thereafter (or if this period is
unenforceable by law, then for such period as shall be enforceable), he will not
engage in any business which directly competes with the current business of the
Company or any Related Company in any capacity which requires or utilizes the
skill, training and knowledge acquired by him while employed by the Company,
whether such capacity be as a broker, principal, partner, joint venturer, agent,
employee, salesman, consultant, director or officer. This restriction will be
limited to the geographical area of the Company or any Related Company currently
doing business or to such other geographical area as a court shall find
reasonably necessary to protect the goodwill and business of the Company and the
Related Companies.
(d) Horing covenants that, as long as he remains employed under this
Agreement and for a period of two years thereafter (or if this period is
unenforceable by law, then for such period as shall be enforceable), he will not
intentionally interfere with either directly or indirectly, the Company's or any
Related Company's relationships with any person, firm, association, corporation
or other entity which is known by Horing to be, or is included on any listing to
which Horing had access during the course of his employment as a customer,
client, supplier, consultant or employee of the Company or any Related Company,
and that he will not divert or change, or attempt to divert or
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change, any such relationship to the detriment of the Company or any Related
Company or to the benefit of any other person (including himself), firm,
association, corporation or other entity.
(e) All ideas, inventions, discoveries, concepts, trademarks, or
other developments or improvements, whether patentable or not, conceived by
Horing, alone or with others, at any time during the term of his employment,
whether or not during working hours or on the Company's premises, which are
within the scope of or related to the business operations of the Company or any
Related Company or that relate to any Company or Related Company work or
project, present, past or contemplated, shall be and remain the exclusive
property of the Company.
(f) Horing covenants that he shall not, during the term of this
Agreement or at any time thereafter, disparage or act in any manner, directly or
indirectly, which may damage the business of the Company or any Related Company
or which would adversely affect the goodwill, reputation, and business
relationships of the Company or any Related Company with the public generally,
or with any of their customers, suppliers or employees. Horing covenants that
he will not directly or indirectly disparage or make any negative or derogatory
comments or statements, written or oral, regarding past, present and future
personnel and policies of the Company or the Related Companies.
(g) Horing expressly acknowledges that any breach or violation of any
of the covenants made by him in this Section 4 will cause immediate and
irreparable injury to the Company and that in the event of a breach or
threatened or intended breach of this contract by Horing, the Company, in
addition to all other legal and equitable remedies available to it, shall be
entitled to injunctions, both preliminary and temporary, and restraining orders,
enjoining and restraining such breach or threatened or intended breach.
5. WAIVER AND RELEASE OF ALL CLAIMS.
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Horing, for himself and for his personal representatives, and in exchange
for the consideration offered by the Company in Section 7, hereby fully releases
the Company and all Related Companies, and any and all of their stockholders,
directors, officers, employees, agents and representatives, from any and all
claims, liabilities, promises, contracts, suits, and attorneys' fees, which have
been or could have been asserted by him or on his behalf in any forum for
circumstances arising prior to the date of this Agreement; provided, however,
that this release and waiver shall not affect or be applicable to rights of
Horing arising under this Agreement. This release includes without limitation,
any and all claims of discrimination on the basis of his race, color, religion,
sex, national origin, disability, age, or ancestry, and claims based on wrongful
discharge whether based on a theory of contract, promissory estoppel, public
policy or tort. This release specifically includes a release of all claims
which could be asserted under Section 4101.17 or Chapter 4112 of the Ohio
Revised Code, Section 4113.52 of the Ohio Revised Code or any other law of the
State of Ohio or any other state, Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act of 1967, the Employee Retirement Income
Security Act of 1974 ("ERISA"), and the Americans with Disabilities Act of 1990
("ADA") and such laws' amendments.
6. CONFIDENTIALITY.
Horing agrees that he will keep the terms, amount and fact of this
Agreement confidential and that he will not hereafter disclose any information
concerning this Agreement to anyone except his immediate family, attorney,
accountant, financial advisor, and prospective or existing creditors or
employers (on a need to know basis); provided that he instructs them to keep
said information confidential and not disclose it to others.
7. COMPANY'S OBLIGATIONS.
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Following the execution of this Agreement and the expiration of the
revocation period, and in consideration of Horing's obligations set forth in
Sections 4, 5 and 6 above, as long as Horing remains employed under the
Agreement, the Company will provide Horing with the following:
(a) Horing shall receive a consulting fee of $22,630.20 per month,
payable monthly in arrears on the first business day of the following month, and
a bonus consulting fee of $140,000 on the 8th day after this Agreement has been
executed by Horing and returned to the Company. If Horing dies while employed
hereunder, the monthly consulting fee for the remainder of the period through
the Consultant Termination Date shall be paid to Horing's estate. The
provisions of the preceding sentence shall survive the termination of this
Agreement. The amounts payable to Horing or his estate hereunder shall be
subject to applicable withholding and other taxes.
(b) Horing shall continue to participate in the employee benefit
plans of CBIS in which he was participating on the day preceding the Effective
Date including, but not limited to, Cincinnati Bell Management Pension Plan,
CBIS Retirement and Savings Plan and the Cincinnati Bell Inc. Executive Deferred
Compensation Plan, but excluding any long or short term disability plan and any
life insurance plan. Provided that Horing remains employed hereunder through
June 30, 1994, his benefits under Cincinnati Bell Management Savings Plan and
the CBIS Retirement and Savings Plan will become fully vested and
nonforfeitable. Provided that he remains employed hereunder through January 1,
1995 (or, if earlier, the day preceding the date of his death), the restrictions
applicable to the last 4,000 shares of restricted stock awarded to him on
February 4, 1991 under the Cincinnati Bell Inc. 1988 Long Term Incentive Plan
shall lapse.
(c) Horing shall continue to receive the perquisites which he was
receiving on the day preceding the Effective Date including, but not limited to,
an automobile allowance and financial planning.
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(d) Ownership of the equipment listed in Exhibit A shall be
transferred to Horing as of the Effective Date.
Notwithstanding the foregoing, from and after the Effective Date, Horing shall
not be entitled to receive any additional awards or grants under Cincinnati Bell
Inc. 1988 Long Term Incentive Plan or Cincinnati Bell Inc. Short Term Incentive
Plan nor shall Horing be eligible to participate in any other bonus or award
program maintained by the Company or CBIS. With respect to any options
heretofore granted to Horing under the Company's 1988 Long Term Incentive Plan,
(a) any options which are not exercisable by the close of business on the
Consultant Termination Date shall thereupon terminate and (b) any options which
are exercisable on the Consultant Termination Date but have not been exercised
by the close of business on that date shall thereupon terminate.
8. SEVERABILITY.
Each of the terms and covenants of this Agreement shall be independently
enforceable and should any term or covenant of this Agreement be ruled invalid
in any court, such provision shall be deemed severable so that such ruling shall
not invalidate the entire contract and the remaining provisions shall not be
affected thereby.
9. TERMINATION.
This Agreement may be terminated:
(a) upon the mutual agreement of both parties;
(b) by the Company, upon two weeks' written notice of such
termination, for cause if there occurs a material breach by Horing, which
continues for 10 days after written notice thereof to him from the Company, of
any of the covenants and agreements made by him under this Agreement or
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any acts or omissions by Horing resulting in serious harm or injury to the
reputation, assets or business of the Company or its Related Companies.
Regardless of the basis for termination of this Agreement, Horing
acknowledges that the covenants contained in Sections 4, 5 and 6 shall survive
the termination of this Agreement.
10. ASSIGNMENT.
This Agreement may not be assigned in whole or in part by Horing. In the
event the Company merges or consolidates with or sells or transfers
substantially all of its assets to any other person, firm or corporation, the
Company may, at its option, assign its rights and duties under this Agreement to
such party and such party may, at its option, assume the obligations of the
Company under this Agreement, and upon such assignment and assumption, the
Company's obligations under this Agreement to Horing shall terminate.
11. NOTICE.
Except as otherwise provided herein, all notices required or permitted to
be given hereunder shall be in writing and shall be deemed to have been duly
given and be effective when delivered by hand or when deposited in the U.S.
mail, prepaid, for certified or registered delivery, or prepaid telegram, to the
following address (or to such other address as any of the following may from
time to time designate by notice given in the manner herein provided):
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To the Company: John T. LaMacchia
President and Chief Executive Officer
Cincinnati Bell Inc.
201 East Fourth Street
Cincinnati, Ohio 45202
To Horing: Sheldon Horing
65 Cornel Drive
Livingston, New Jersey 07039
12. GENERAL.
(a) Horing agrees that in making this Agreement, the Company is not
admitting the violation of any law or any of his rights, but does so solely for
the purpose of settling all matters between them.
(b) This Agreement contains the entire agreement between the parties
and may only be modified by a subsequent written agreement signed by the same
parties. This Agreement supersedes all prior agreements and understanding of
the parties, written or oral, with respect to Horing's employment.
(c) Horing admits that the terms of this Agreement have been
explained to him, that he has had the opportunity and written advice to consult
with any attorney or other advisor of his choice and voluntarily has decided to
enter into this Agreement. Horing states and admits that in executing this
Agreement he does not rely, and has not relied, upon any other representation or
statement made by the Company or by any of its agents, representatives or
attorneys with regard to this Agreement.
(d) Horing acknowledges that he was afforded a period of at least 21
days within which to consider this Agreement before he signed it, but knowingly
and voluntarily and without
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coercion, and upon advice of counsel, chose to sign this Agreement before the
expiration of the 21-day period. Horing may revoke this Agreement by giving
written notice to the Company within 7 days after execution of this Agreement.
Unless so revoked, this Agreement shall become effective and enforceable on the
8th day after it is executed by Horing.
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
(f) No waiver with respect to any provision of this Agreement shall
be effective unless in writing. The waiver by either party hereto of a breach
of any provision of this Agreement by the other shall not operate or be
construed as a waiver of any other or subsequent breach.
(g) This Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and Horing, his heirs and personal
representatives.
(h) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original. All counterparts shall constitute
one and the same instrument, which shall be sufficiently evidenced by any one
thereof.
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AGREED:
CINCINNATI BELL INC.
By: /s/ John T. LaMacchia
--------------------------------------------------------
John T. LaMacchia, President and Chief Executive Officer
Date Executed: March 29, 1994
/s/ Sheldon Horing
-------------------------------------------------------------
Sheldon Horing
Date Executed: March 26, 1994
WITNESSES:
As to Cincinnati Bell Inc. As to Sheldon Horing
/s/ Mary Janet Edwards /s/ Barbara Parker
----------------------------------- ----------------------------------
March 29, 1994 March 26, 1994
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