Exhibit (10)(iii)(A)(13)
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This Amended and Restated Employment
Agreement (“Agreement”) is made as of the Effective
Date between Cincinnati Bell Inc. (“Employer”) and
Brian A. Ross (“Employee”). For purposes of this
Agreement, the “Effective Date” means January 1,
2009.
Employer and Employee agree as
follows:
1. Employment . By this
Agreement, Employer and Employee set forth the terms of
Employer’s employment of Employee on and after the Effective
Date. Any prior agreements or understandings with respect to
Employee’s employment by Employer are canceled as of the
Effective Date. Notwithstanding the preceding sentence, except as
provided in Section 13 of this Agreement, all stock options,
restricted shares and other long term incentive awards granted to
Employee prior to the Effective Date, benefit plans in which
Employee is eligible for participation and any Employer policies to
which Employee is subject shall continue in effect in accordance
with their respective terms and shall not be modified, amended or
cancelled by this Agreement.
2. Term of Agreement . The
term of this Agreement initially shall be the one year period
commencing on the Effective Date. On the first anniversary of the
Effective Date and on each subsequent anniversary of the Effective
Date, the term of this Agreement automatically shall be extended
for a period of one additional year. Notwithstanding the foregoing,
the term of this Agreement is subject to termination as provided in
Section 13.
3. Duties .
A. Employee will serve as Chief
Operating Officer for Cincinnati Bell Inc. or in such other
equivalent capacity as may be designated by the Chief Executive
Officer of Employer. Employee will report to the Chief Executive
Officer of Employer or to such other officer as the Chief Executive
Officer of Employer may direct.
B. Employee shall furnish such
managerial, executive, financial, technical and other skills,
advice, and assistance in operating Employer and its Affiliates as
Employer may reasonably request. For purposes of this Agreement,
“Affiliate” means each corporation or organization that
is deemed to be a single employer with Employer under
Section 414(b) or (c) of the Internal Revenue Code of
1986, as amended (the “Code”) ( i.e. , as part
of a controlled group of corporations that includes Employer or
under common control with Employer).
C. Employee shall also perform such
other duties, consistent with the provisions of Section 3.A.,
as are reasonably assigned to Employee by the Chief Executive
Officer of Employer.
D. Employee shall devote
Employee’s entire time, attention and energies to the
business of Employer and its Affiliates. The words “entire
time, attention and energies” are intended to mean that
Employee shall devote Employee’s full effort during
reasonable working hours to the business of Employer and its
Affiliates and shall devote at least 40 hours per week to the
business of Employer and its Affiliates. Employee shall travel to
such places as are necessary in the performance of Employee’s
duties.
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4. Compensation .
A. Employee shall receive a base
salary (the “Base Salary”) of at least $425,000 per
year, payable not less frequently than monthly, for each year
during the term of this Agreement, subject to proration for any
partial year. Such Base Salary, and all other amounts payable under
this Agreement, shall be subject to withholding as required by
law.
B. In addition to the Base Salary,
Employee shall be eligible to receive an annual bonus (the
“Bonus”) for each calendar year for which services are
performed under this Agreement. Any Bonus for a calendar year shall
be payable after the conclusion of the calendar year in accordance
with Employer’s regular bonus payment policies. Each year,
Employee shall be given a Bonus target of not less than $425,000,
subject to proration for a partial year. The Bonus target shall be
established from time to time by Employer’s Compensation
Committee if Employee is a named executive officer for purposes of
Employer’s annual proxy statement or is otherwise an
executive officer whose compensation is determined by the
Compensation Committee, or, if Employee is not so subject, then in
accordance with the provisions of Employer’s then existing
annual incentive plan or any similar plan made available to
employees of Employer (“annual incentive plan”) in
which Employee participates. Any Bonus award to Employee shall
further be subject to the terms and conditions of any such
applicable annual incentive plan.
C. On at least an annual basis,
Employee shall receive a formal performance review and be
considered for Base Salary and/or Bonus target
increases.
5. Expenses . All reasonable
and necessary expenses incurred by Employee in the course of the
performance of Employee’s duties to Employer shall be
reimbursable in accordance with Employer’s then current
travel and expense policies.
6. Benefits .
A. While Employee remains in the
employ of Employer, Employee shall be eligible to participate in
all of the various employee benefit plans and programs, which are
made available to similarly situated officers of Employer, in
accordance with the eligibility provisions and other terms and
conditions of such plans and programs.
B. Notwithstanding anything
contained herein to the contrary, the Base Salary and any Bonuses
otherwise payable to Employee shall be reduced by any benefits paid
to Employee by Employer under any disability plans made available
to Employee by Employer (“Disability
Plans”).
C. In each year of this Agreement,
Employee will be eligible to be considered for a grant of awards
under Employer’s 2007 Long Term Incentive Plan and/or any
similar plan made available to employees of Employer.
7. Confidentiality . Employer
and its Affiliates are engaged in the telecommunications industry
within the U.S. Employee acknowledges that in the course of
employment with the Employer, Employee will be entrusted with or
obtain access to information proprietary to Employer and its
Affiliates with respect to the following (all of which information
is referred to hereinafter collectively as the
“Information”); the organization and management of
Employer
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and its Affiliates; the names, addresses, buying
habits and other special information regarding past, present and
potential customers, employees and suppliers of Employer and its
Affiliates; customer and supplier contracts and transactions or
price lists of Employer, its Affiliates and their suppliers;
products, services, programs and processes sold, licensed or
developed by Employer or its Affiliates; technical data, plans and
specifications, and present and/or future development projects of
Employer and its Affiliates; financial and/or marketing data
respecting the conduct of the present or future phases of business
of Employer and its Affiliates; computer programs, systems and/or
software; ideas, inventions, trademarks, trade secrets, business
information, know-how, processes, improvements, designs, redesigns,
discoveries and developments of Employer and its Affiliates; and
other information considered confidential by any of the Employer,
its Affiliates or customers or suppliers of Employer and its
Affiliates. At all times during the term of this Agreement and
thereafter, Employee agrees to retain the Information in absolute
confidence and not to disclose the Information to any person or
organization except as required in the performance of
Employee’s duties for Employer, without the express written
consent of Employer; provided that Employee’s obligation of
confidentiality shall not extend to any Information which becomes
generally available to the public other than as a result of
disclosure by Employee.
8. New Developments . All
ideas, inventions, discoveries, concepts, trade secrets,
trademarks, service marks or other developments or improvements,
whether patentable or not, conceived by Employee, alone or with
others, at any time during the term of Employee’s employment,
whether or not during working hours or on Employer’s
premises, which are within the scope of or related to the business
operations of Employer or its Affiliates (“New
Developments”), shall be and remain the exclusive property of
Employer. Employee agrees that any New Developments which, within
one year after the cessation of employment with Employer, are made,
disclosed, reduced to a tangible or written form or description or
are reduced to practice by Employee and which are based upon,
utilize or incorporate Information shall, as between Employee and
Employer, be presumed to have been made during Employee’s
employment by Employer. Employee further agrees that Employee will
not, during the term of Employee’s employment with Employer,
improperly use or disclose any proprietary information or trade
secrets of any former employer or other person or entity and that
Employee will not bring onto Employer premises any unpublished
document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer,
person or entity.
At all times during the term of this
Agreement and thereafter, Employee shall do all things reasonably
necessary to ensure ownership of such New Developments by Employer,
including the execution of documents assigning and transferring to
Employer all of Employee’s rights, title and interest in and
to such New Developments and the execution of all documents
required to enable Employer to file and obtain patents, trademarks,
service marks and copyrights in the United States and foreign
countries on any of such New Developments.
9. Surrender of Material Upon
Termination . Employee hereby agrees that upon cessation of
Employee’s employment, for whatever reason and whether
voluntary or involuntary, Employee will immediately surrender to
Employer all of the property and other things of value in his
possession or in the possession of any person or entity under
Employee’s control that are the property of Employer or any
of its Affiliates, including without any limitation all personal
notes, drawings, manuals, documents, photographs or the like,
including copies and derivatives thereof,
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and e-mails and other electronic and digital
information of all types regardless of where or the type of device
on which such materials may be stored by Employee, relating
directly or indirectly to any Information, materials or New
Developments, or relating directly or indirectly to the business of
Employer or any of its Affiliates.
10. Remedies .
A. Employer and Employee hereby
acknowledge and agree that the services rendered by Employee to
Employer, the information disclosed to Employee during and by
virtue of Employee’s employment and Employee’s
commitments and obligations to Employer and its Affiliates herein
are of a special, unique and extraordinary character, and that the
breach of any provision of this Agreement by Employee will cause
Employer irreparable injury and damage, and consequently the
Employer shall be entitled to, in addition to all other remedies
available to it, injunctive and equitable relief to prevent a
breach of Sections 7, 8, 9, 11 and 12 of this Agreement and to
secure the enforcement of this Agreement.
B. Except as provided in
Section 10.A. , the parties hereto agree to submit to
final and binding arbitration any dispute, claim or controversy,
whether for breach of this Agreement or for violation of any of
Employee’s statutorily created or protected rights, arising
between the parties that either party would have been otherwise
entitled to file or pursue in court or before any administrative
agency (herein “claim”), and each party waives all
right to sue the other party.
(i) This agreement to arbitrate and
any resulting arbitration award are enforceable under and subject
to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
(“FAA”). If the FAA is held not to apply for any
reason, then Ohio Revised Code Chapter 271l regarding the
enforceability of arbitration agreements and awards will govern
this Agreement and the arbitration award.
(ii) (a) All of a party’s
claims must be presented at a single arbitration hearing. Any claim
not raised at the arbitration hearing is waived and released. The
arbitration hearing will take place in Cincinnati, Ohio.
(b) The arbitration process will be
governed by the Employment Dispute Resolution Rules of the American
Arbitration Association (“AAA”) except to the extent
they are modified by this Agreement. In the event that any
provisions of this Section 10 are determined by AAA to be
unenforceable or impermissibly contrary to AAA rules, then this
Section 10 shall be modified as necessary to comply with AAA
requirements.
(c) Employee has had an opportunity
to review the AAA rules and the requirements that Employee must pay
a filing fee for which Employer has agreed to split on an equal
basis.
(d) The arbitrator will be selected
from a panel of arbitrators chosen by the AAA. After the filing of
a Request for Arbitration, the AAA will send simultaneously to
Employer and Employee an identical list of names of five persons
chosen from the panel. Each party will have 10 days from the
transmittal date in which to strike up to two names, number the
remaining names in order of preference and return the list to the
AAA.
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(e) Any pre-hearing disputes will be
presented to the arbitrator for expeditious, final and binding
resolution.
(f) The award of the arbitrator will
be in writing and will set forth each issue considered and the
arbitrator’s finding of fact and conclusions of law as to
each such issue.
(g) The remedy and relief that may
be granted by the arbitrator to Employee are limited to lost wages,
benefits, cease and desist and affirmative relief, compensatory,
liquidated and punitive damages and reasonable attorney’s
fees, and will not include reinstatement or promotion. If the
arbitrator would have awarded reinstatement or promotion, but for
the prohibition in this Agreement, the arbitrator may award front
pay. The arbitrator may assess to either party, or split, the
arbitrator’s fee and expenses and the cost of the transcript,
if any, in accordance with the arbitrator’s determination of
the merits of each party’s position, but each party will bear
any cost for its witnesses and proof.
(h) Employer and Employee recognize
that a primary benefit each derives from arbitration is avoiding
the delay and costs normally associated with litigation. Therefore,
neither party will be entitled to conduct any discovery prior to
the arbitration hearing except that: (i) Employer will furnish
Employee with copies of all non-privileged documents in
Employee’s personnel file; (ii) if the claim is for
discharge, Employee will furnish Employer with records of earnings
and benefits relating to Employee’s subsequent employment
(including self-employment) and all documents relating to
Employee’s efforts to obtain subsequent employment;
(iii) the parties will exchange copies of all documents they
intend to introduce as evidence at the arbitration hearing at least
10 days prior to such hearing; (iv) Employee will be allowed
(at Employee’s expense) to take the depositions, for a period
not to exceed four hours each, of two representatives of Employer,
and Employer will be allowed (at its expense) to depose Employee
for a period not to exceed four hours; and (v) Employer or
Employee may ask the arbitrator to grant additional discovery to
the extent permitted by AAA rules upon a showing that such
discovery is necessary.
(i) Nothing herein will prevent
either party from taking the deposition of any witness where the
sale purpose for taking the deposition is to use the deposition in
lieu of the witness testifying at the hearing and the witness is,
in good faith, unavailable to testify in person at the hearing due
to poor health, residency and employment more than 50 miles from
the hearing site, conflicting travel plans or other comparable
reason.
(j) Arbitration must be requested in
writing no later than 6 months from the date of the party’s
knowledge of the matter disputed by the claim. A party’s
failure to initiate arbitration within the time limits herein will
be considered a waiver and release by that party with respect to
any claim subject to arbitration under this Agreement.
(k) Employer and Employee consent
that judgment upon the arbitration award may be entered in any
federal or state court that has jurisdiction.
(1) Except as provided in
Section 10.A., neither party will commence or pursue any
litigation on any claim that is or was subject to arbitration under
this Agreement.
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(m) All aspects of any arbitration
procedure under this Agreement, including the hearing and the
record of the proceedings, are confidential and will not be open to
the public, except to the extent the parties agree otherwise in
writing, or as may be appropriate in any subsequent proceedings
between the parties, or as may otherwise be appropriate in response
to a governmental agency or legal process or as may be required to
be disclosed by Employer pursuant to applicable law, rule or
regulation to which Employer is subject, including requirements of
the Securities and Exchange Commission and any stock exchanges on
which Employer’s securities are listed.
11. Covenant Not to Compete, No
Interference; No Solicitation . For purpos
