EXHIBIT (10)(III)(A)(19)
TO FORM 10-K 1994
SEPARATION AGREEMENT AND WAIVER AND RELEASE
Cincinnati Bell Telephone Company, an Ohio Corporation (the "Company"),
defined to include all currently related corporate entities, and Donald E.
Hoffman ("Executive"), in consideration of the mutual promises made herein,
hereby agree as follows:
1. SEPARATION.
Executive shall resign from employment with the Company effective at
the close of business on May 24, 1995 (the "Employment Separation Date").
2. TRADE SECRETS AND NON COMPETITION.
(a) The Company is engaged directly, and indirectly through its
related companies, in the information services, telecommunication and marketing
support services industries within the U.S. and worldwide. Executive
acknowledges that in the course of Executive's employment with the Company
Executive has been entrusted with or obtained access to information proprietary
to the Company, and/or any or all 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 or its related companies; technical data, plans and specifications,
present
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YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT AND
RELEASE
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 or its related companies; strategic knowledge of
pending acquisitions of land and/or building space; and other information
considered confidential by any of the Company, its related companies or
customers or suppliers of the Company or its related companies.
Executive agrees that Executive will continue to retain such
proprietary information in absolute confidence and not to disclose to any person
or organization any proprietary information without the express written consent
of the Company. Executive agrees that this Agreement does not supersede any
such preexisting obligations and that they are incorporated herein by reference.
(b) In consideration of the compensation to be paid Executive
pursuant to Section 5, Executive agrees that it is reasonable and necessary for
the protection of the goodwill and business of the Company that Executive make
the covenants contained in Sections 2, 3 and 4 regarding Executive's conduct
during and subsequent to Executive's employment relationship with the Company
and that the Company will suffer irreparable injury if Executive engages in
conduct prohibited under those Sections. Executive represents that Executive
has thoroughly reviewed the terms of those covenants, including the time periods
stated therein, and that Executive's experience and/or abilities are such that
observance of such covenants will not cause Executive undue hardship nor will it
unreasonably interfere with Executive's ability to earn a livelihood. The
covenants contained in
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Sections 2, 3 and 4 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 Executive against the Company and/or its related companies,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of any of those covenants.
(c) Executive covenants that, for a period of two years after the
Employment Separation Date (or if this period is unenforceable by law, then for
such period as shall be enforceable), Executive will not, without first
obtaining written permission from the Company, engage in any business offering
services related to the current business of the Company in any capacity which
requires or utilizes the skill, training and knowledge acquired by Executive
while employed by the Company, whether such capacity be as a broker, principal,
partner, joint venturer, agent, employee, salesman, consultant, director or
officer, where such position would involve Executive in any business activity in
competition with the Company. This restriction will be limited to the
geographical area of Ohio, Kentucky and Indiana or to such other geographical
area as a court shall find reasonably necessary to protect the goodwill and
business of the Company.
(d) Executive covenants that Executive will not, for a period of two
years after the Employment Separation Date (or if this period is unenforceable
by law, then for such period as shall be enforceable), interfere with or
adversely affect, either directly or indirectly, the Company, its employees, or
any of their related companies' relationships with any person, firm,
association, corporation or other entity which is known by Executive to be, or
is included on any listing to which Executive had access during the course of
Executive's employment, a customer, client, supplier, consultant or employee of
the Company or its related companies, and that Executive will not divert or
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change, or attempt to divert or change, any such relationship to the detriment
of the Company or any of the related companies 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
Executive, alone or with others, at any time during the term of Executive's
employment, whether or not during working hours or on the Company's premises,
which are within the scope of or related to the Company's business operations or
that relate to any Company work or project, present, past or contemplated, shall
be and remain the exclusive property of the Company.
(f) Executive covenants that Executive shall not, during the term of
this Agreement or at any time thereafter, act in any manner, directly or
indirectly, which may damage the business of the Company or any of the related
companies or which would adversely affect the goodwill, reputation, and business
relationships of the Company or any of the related companies with the public
generally, or with any of their customers, suppliers or employees.
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(g) Executive expressly acknowledges that any breach or violation of
any of the covenants made by Executive in this Section 2 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 Executive, 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.
3. WAIVER AND RELEASE OF ALL CLAIMS.
Executive, for himself and for Executive's personal representatives,
and in exchange for the consideration offered by the Company in Section 5,
hereby fully releases the Company and its 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 Executive or on Executive's
behalf in any forum for circumstances arising prior to the date of this
Agreement. This release includes without limitation, any and all claims of
discrimination on the basis of Executive's 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.
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4. CONFIDENTIALITY.
Executive agrees that Executive will keep the terms, amount and fact
of this Agreement confidential and that Executive will not hereafter disclose
any information concerning this Agreement to anyone except Executive's immediate
family, attorney or accountant, provided that Executive instructs them to keep
said information confidential and not disclose it to others.
5. COMPANY'S OBLIGATIONS.
Following the execution of this Agreement and the expiration of the
revocation period, and in consideration of Executive's obligations set forth in
Sections 4, 5 and 6 above, the Company will provide Executive with the following
severance benefits to which Executive would not be otherwise entitled:
(a) forty months of the age reduction otherwise applicable to
Executive under Subparagraph 3(a)(i) of Cincinnati Bell Inc. Pension Program
shall be waived and, for purposes of calculating his benefit under the Pension
Program, references to the "Pension Plan" in Section 4 of the Pension Program
shall mean the Cincinnati Bell Management Pension Plan as in effect prior to
December 31, 1993;
(b) outplacement services, including an individual executive program
with job-search counseling, clerical and long-distance telephone support, office
space, skills evaluations, resume preparation and interviewing skills.
Outplacement services must commence within 60 days after the Employment
Separation Date and may not exceed a total cost of $25,000;
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(c) up to $5,000 for financial counseling and/or tax consultation
services, provided Executive provides valid receipts documenting the cost and
date of services rendered, date of counseling to occur prior to December 31,
1995;
(d) payment of the 1994 Incentive Award, if any, payable in 1995.
Executive shall not be entitled to receive a 1995 Incentive Award;
(e) this Agreement shall not modify Executive's entitlement to
benefits under Cincinnati Bell Management Pension Plan and Cincinnati Bell Inc.
Retirement Savings Plan;
(f) with respect to any options heretofore granted to Executive under
the Company's 1988 Long Term Incentive Plan, any options which are not
exercisable by the close of business on the Employment Separation Date shall
thereupon terminate. Executive shall not be granted any additional options;
(g) title of cellular equipment in Executive's personal vehicle will
be transferred to Executive and Executive will assume responsibility for any and
all charges relating to such equipment after the Employment Separation Date; and
(h) to the extent that the Company is providing indemnification to
the Executive on the day preceding the Employment Separation Date (through
insurance or otherwise) for the Executive's acts and omissions as an officer of
the Company, the Company shall continue to provide such indemnification on and
after the Employment Separation Date for any acts or omissions occurring prior
to the Employment Separation Date.
* * *
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All payments to Executive under this Agreement shall be subject to applicable
Federal, state and local tax withholding.
6. 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.
7. TERMINATION.
This Agreement may be terminated:
(a) upon the mutual agreement of both parties; or
(b) by the Company, upon two weeks' written notice of such
termination, for cause if there occurs a material breach by Executive, which
continues for 10 days after written notice thereof to Executive from the
Company, of any of the covenants and agreements made by Executive under this
Agreement or any acts or omissions by Executive resulting in serious harm or
injury to the reputation, assets or business of the Company or its related
companies.
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Regardless of the basis for termination of this Agreement, Executive
acknowledges that the covenants contained in Sections 2, 3 and 4 shall survive
the termination of this Agreement.
8. ASSIGNMENT.
This Agreement may not be assigned in whole or in part by Executive.
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 Executive shall terminate.
9. 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):
To the Company:
Raymond R. Clark
President
Cincinnati Bell Telephone Company
201 East Fourth Street
Cincinnati, Ohio 45202
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To Executive:
Donald E. Hoffman
132 Wyoming Ave
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Cincinnati, Oh 45215
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10. GENERAL
(a) Executive agrees that in making this Agreement, the Company is
not admitting the violation of any law or any of Executive's 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.
(c) Executive admits that the terms of this Agreement have been
explained to Executive, that Executive has had the opportunity and written
advice to consult with any attorney or other advisor of Executive's choice and
voluntarily has decided to give up all rights to make any claim against the
Company. Executive states and admits that in executing this Agreement Executive
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) Executive acknowledges that Executive has reviewed the terms of
this Agreement, that Executive has had the opportunity to consult with an
attorney, and that Executive voluntarily has decided to enter into this
Agreement. Executive acknowledges that Executive was afforded a period of at
least 45 days within which to consider this Agreement before Executive signed
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it, but knowingly and voluntarily and without coercion, and upon advice of
counsel, chose to sign this Agreement before the expiration of the 45-day
period. Executive 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 Executive.
(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 Executive, Executive's heirs and
personal representatives.
IN WITNESS WHEREOF, the Company has caused its name to be subscribed and
Executive has subscribed his name on the 21st day of December, 1994.
Witness: CINCINNATI BELL TELEPHONE COMPANY
/s/Leslie P. Maloney By /s/Raymond R. Clark
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/s/Sandra J. Cole /s/Donald E. Hoffman
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Donald E. Hoffman
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