EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of October 21, 1991, between CHARLES R.
DRENNING (the "Employee") and HYPERION TELECOMMUNICATIONS, INC. (the "Company"),
a Delaware corporation.
W I T N E S S E T H:
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WHEREAS, the Company desires to assure itself of the benefit of the
Employee's services and experience for a period of time; and
WHEREAS, the Employee is willing to enter into an agreement to that
end with the Company upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree as follows:
1. Term of Agreement
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Subject to the terms and conditions hereof, the term of
employment of the Employee under this Employment Agreement shall be for the
period commencing on the date hereof and terminating at midnight on October 20,
1996. Employee may defer commencement for thirty (30) days after the date
hereof.
2. Services to be Rendered
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The Company hereby agrees to employ the Employee as an executive
officer to perform services for the Company in such areas as requested by the
Company, exclusive of Allegheny County, Pennsylvania, subject to the terms,
conditions and provisions of
this Employment Agreement. The Employee hereby accepts such employment and
agrees to devote his full time and attention to rendering services to the
Company under this Employment Agreement. In connection with the rendition of
such services, the Employee shall report to and be subject to the direction of
the President and Board of Directors of the Company, and he shall perform such
services as shall be designated by them.
3. Compensation
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3.1 In full payment for services rendered to the Company under this
Employment Agreement, the Company shall pay the Employee a base salary of not
less than $90,000 per year during the term hereof ("Base Salary"), to be paid in
accordance with Company policy. The Base Salary shall be increased by the amount
of Adelphia Communications Corporation wages grid for hourly employees is
increased each year.
3.2 In addition to the compensation otherwise provided for in this
Paragraph 3, the Employee shall, during the term of this Employment Agreement,
also be eligible to be awarded a bonus as provided for in Paragraph 4 of this
Employment Agreement.
3.3 The Employee shall be deemed to be a 10-year employee and shall,
during the term of this Employment Agreement, be entitled to (i) vacations and
fringe benefits, including reimbursement of business expenses, consistent with
the present practice of Adelphia Communications Corporation for its employees as
set forth in the Adelphia Communications Corporation Handbook and (ii) the use
of appropriate office space.
4. Bonus Compensation
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The Company covenants and agrees that, for each fiscal year
during the term of the Employment Agreement, the Employee will be entitled to
receive bonus compensation ("Bonus Compensation") provided the Employee meets
the performance criteria to
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be mutually agreed upon, with the maximum award not to exceed $20,000 per annum,
payable quarterly.
5. Disability, Death and Termination
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5.1 In the event of the Employee's physical or mental disability
(so that the Employee is not reasonably able to render his full services
hereunder), the Employee's Base Salary shall continue for the period of any such
disability less any disability payments; provided, however, that in the event
any such disability shall continue for a consecutive period of more than one
hundred eighty (180) days, then the Company may, at its election, terminate this
Employment Agreement. In the event of any such termination, the Company shall be
obligated only for compensation earned by the Employee prior to such
termination.
5.2 Upon the death of the Employee, the Company shall continue for
a period of one hundred eighty (180) days from the Employee's date of death to
pay the Base Salary to the Employee's designated beneficiary.
5.3 If any of the following events should occur:
(i) the Employee voluntarily resigns or retires as an employee
of the Company without the prior written consent of the
Company;
(ii) the Company terminates the Employee's employment for cause
which is defined as good and sufficient cause; or
(iii) the Employee materially breaches this Employment Agreement
and fails to cure such breach within thirty (30) calendar
days after receiving written notice of such breach from the
Company;
then the Company's obligations hereunder shall terminate and no further payments
of any kind shall thereafter be made by the Company to the Employee hereunder.
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6. Employee's Acknowledgments
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Employee recognizes and acknowledges that: (a) in the course of
Employee's employment by the Company it will be necessary for Employee to
acquire information which could include, in whole or in part, information
concerning the Company's sales, sales volume, sales methods, sales proposals,
customers and prospective customers; the identity of customers and prospective
customers; the identity of key purchasing personnel in the employ of customers
and prospective customers; the amount or kind of customers' purchases from the
Company; the Company's sources of supply; the Company's computer programs,
system documentation, special hardware and product hardware, related software
development; the Company's manuals, formulae, processes, methods, machines,
compositions, ideas, improvements and inventions; or other confidential or
proprietary information belonging to the Company or relating to the Company's
affairs (collectively referred to herein as the "Confidential Information"); (b)
the Confidential Information is the property of the Company; (c) the use,
misappropriation or disclosure of the Confidential Information would constitute
a breach of trust and could cause irreparable injury to the Company; and (d) it
is essential to the protection of the Company's good will and to the maintenance
of the Company's competitive position that the Confidential Information be kept
secret and that Employee not disclose the Confidential Information to others or
use the Confidential Information to Employee's own advantage or the advantage of
others.
Employee further recognizes and acknowledges that it is
essential for the proper protection of the business of the Company that Employee
be restrained (a) from soliciting or inducing any employee of the Company to
leave the employ of the Company, (b) from hiring or attempting to hire any
employee of the Company, (c) from soliciting the trade of or trading
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with the customers and suppliers of the Company for any business purpose, and
(d) from competing against the Company for a reasonable period following the
termination of Employee's employment with the Company.
7. Employee's Covenants, Representations and Agreements
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7.1 Non-Disclosure of Confidential Information.
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Employee agrees to hold and safeguard the Confidential
Information in trust for the Company, its successors and assigns, and agrees
that he shall not, without the prior written consent of the Company,
misappropriate or disclose or make available to anyone for use outside the
Company's organization at any time, either during his employment with the
Company or subsequent to the termination of his employment with the Company for
any reason, including without limitation termination by the Company for cause or
without cause, any of the Confidential Information, whether or not developed by
Employee, except as required in the performance of Employee's duties to the
Company.
7.2 Disclosure of Works and Inventions/Assignment of Patents.
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Employee shall disclose promptly to the Company or its nominee any and all
works, inventions, discoveries and improvements authorized, conceived or made by
Employee during the period of employment and related to the business or
activities of the Company, and hereby assigns and agrees to assign all his
interest therein to the Company or its nominee. Whenever requested to do so by
the Company, Employee shall execute any and all applications, assignments or
other instruments which the Company shall deem necessary to apply for and obtain
Letters, Patents or Copyrights of the United States or any foreign country or to
otherwise protect the Company's interest therein. Such obligations shall
continue beyond the termination of employment with respect to works, inventions,
discoveries and improvements authored, conceived or made by Employee
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during the period of employment, and shall be binding upon Employee's assigns,
executors, administrators and other legal representatives.
7.3 Duties. Employee agrees to be a loyal employee of the Company.
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Employee agrees to devote his best efforts full time to the performance of his
duties for the Company, to give proper time and attention to furthering the
Company's business and to comply with all rules, regulations and instruments
established or issued by the Company. Employee further agrees that during the
term of this Agreement, Employee shall not, directly or indirectly, engage in
any business which would detract from Employee's ability to apply his best
efforts to the performance of his duties hereunder. Employee also agrees that he
shall not usurp any corporate opportunities of the Company.
7.4 Return of Materials. Upon the termination of Employee's
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employment with the Company for any reason, including without limitation
termination by the Company for cause or without cause, Employee shall promptly
deliver to the Company all correspondence, drawings, blueprints, manuals,
letters, notes, notebooks, reports, flow-charts, programs, proposals and any
documents concerning the Company's customers or concerning products or processes
used by the Company and, without limiting the foregoing, will promptly deliver
to the Company any and all other documents or materials containing or
constituting Confidential Information.
7.5 Restrictions on Competition. Employee covenants and agrees that
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during the period of Employee's employment hereunder and for a period of three
(3) years following the termination of Employee's employment, including without
limitation termination as set forth in Paragraph 5.3 hereof, Employee shall not
engage in any competing business, directly or indirectly, whether as principal
or as agent, officer, director, employee, consultant, shareholder or
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otherwise, alone or in association with any other person, corporation or other
entity, in any city or municipality where the Company is offering its products
or services.
For purposes of this Agreement, the term "competing business"
shall mean any person, corporation or other entity engaged in the business of
(a) providing telecommunications alternate access network systems, or (b)
selling or attempting to sell any product or service which is the same as or
similar to products or services sold by the Company within the last three (3)
years prior to termination of Employee's employment hereunder.
7.6 Non-Solicitation of Customers and Suppliers. Employee agrees
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that during his employment with the Company, he shall not, directly or
indirectly, solicit the trade of, or trade with, any customer, prospective
customer, supplier or prospective supplier of the Company for any business
purpose other than for the benefit of the Company. Employee further agrees that
for three (3) years following termination of his employment with the Company,
including without limitation termination by the Company for cause or without
cause, Employee shall not, directly or indirectly, solicit the trade of, or
trade with, any customers or suppliers, or prospective customers or suppliers,
of the Company.
7.7 Non-Solicitation of Employees. Employee agrees that during his
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employment with the Company and for three (3) years following termination of
Employee's employment with the Company, including without limitation termination
by the Company for cause or without cause, Employee shall not, directly or
indirectly, solicit or induce, or attempt to solicit or induce, any employee of
the Company to leave the Company for any reason whatsoever, or hire any employee
of the Company.
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7.8 Work Made for Hire. Employee agrees that in the event of
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publication by Employee of written or graphic materials, the Company will retain
and own all rights in said materials, including right of copyright.
7.9 No Violation of Other Agreements. Employee represents and
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agrees that by entering into this Agreement he will not violate or breach any
other agreement or contract by which he is bound. Employee further represents
and warrants that his employment with the Company will not require him to
disclose or use any confidential information belonging to prior employers or
other persons or entities.
8. Expenses.
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All reasonable travel, entertainment and other expenses
incidental to the rendering of services by the Employee hereunder shall be paid
by the Company in accordance with its normal practices in effect from time to
time. If such expenses are paid in the first instance by the Employee the
Company shall reimburse him promptly therefor upon presentation of proper
invoices.
9. Non-Assignability
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Except as otherwise provided herein, this Employment Agreement
may not be assigned by either the Company or the Employee.
10. Merger or Consolidation
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In the event of the merger or consolidation of the Company with
any other corporation or corporations, or of the sale by the Company of a major
portion of its assets or of its business and good will, this Employment
Agreement shall be assigned and transferred to such successor in interest as an
asset of the Company and such assignee shall assume the Company's obligations
hereunder, in which event the Employee agrees to continue to perform his duties
and
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obligations according to the terms and conditions hereof for such assignee
or transferee of this Employment Agreement.
11. Notices
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All notices and other communications which are required or may be
given under this Employment Agreement shall be in writing and shall be deemed to
have been given if delivered personally or sent by registered or certified mail,
return receipt requested, postage prepaid:
If to the Company, to it at the following address:
Hyperion Telecommunications, Inc.
Coudersport, PA 16915
If to the Employee, to him at the following address:
Charles R. Drenning
1443 Old Meadow Road
Upper St. Clair, PA 15241
with a copy to:
Bernard Eisen, Esq.
Klett Lieber Rooney & Schorling
40th Floor, One Oxford Centre
Pittsburgh, PA 15219
or to such other place as either party shall have specified by notice in writing
to the other.
12. Governmental Regulation
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Nothing contained in this Employment Agreement shall be
construed so as to require the commission of any act contrary to law, and
wherever there is any conflict between any provision of this Employment
Agreement and any statute, law, ordinance, order or regulation, the latter shall
prevail, but in such event any such provision of this Employment
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Agreement shall be curtailed and limited only to the extent necessary to bring
it within the legal requirements.
13. Governing Law
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This Employment Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
14. Entire Agreement; Amendment
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This Employment Agreement sets forth the entire understanding of
the parties in respect of the subject matter contained herein and supersedes all
prior agreements, arrangements and understandings relating to the subject
matter, and may be amended only by a written agreement signed by both parties
hereto or their duly authorized representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
WITNESS:
/s/ FLORENCE MACK /s/ CHARLES R. DRENNING (SEAL)
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CHARLES R. DRENNING
ATTEST: HYPERION TELECOMMUNICATIONS, INC.
/s/ DANIEL R. MILLIARD By /s/ JAMES P. RIGAS
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SECRETARY VICE PRESIDENT
(CORPORATE SEAL)
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