Employment Agreement - Dex Media Inc. and Marilyn Neal
EXECUTION COPY
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of November
8, 2002 (the "Effective Date"), is made by and between Marilyn Neal (the
"Executive") and Dex Media, Inc., a Delaware corporation, and any of its
subsidiaries and affiliates (including without limitation Dex Media East LLC) as
may employ Executive from time to time (collectively, and together with any
successor thereto, the "Company").
RECITALS
A. It is the desire of the Company to assure itself of the
services of the Executive by engaging the Executive to perform
services under the terms hereof.
B. The Executive desires to provide services to the Company on
the terms herein provided.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below the parties hereto agree as follows:
1. CERTAIN DEFINITIONS
(a) "Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or
under common control with, such Person where "control" shall
have the meaning given such term under Rule 405 of the
Securities Act.
(b) "Agreement" shall have the meaning set forth in the preamble
hereto.
(c) "Annual Base Salary" shall have the meaning set forth in
Section 3(a).
(d) "Board" shall mean the Board of Directors of the Company.
(e) The Company shall have "Cause" to terminate the Executive's
employment hereunder upon:
(i) The Executive's willful failure to substantially
perform the duties set forth in this Agreement (other
than any such failure resulting from the Executive's
Disability) which is not remedied within 30 days
after receipt of written notice from the Company
specifying such failure;
(ii) The Executive's willful failure to carry out, or
comply with, in any material respect any lawful and
reasonable directive of the Board not inconsistent
with the terms of this Agreement, which is not
remedied within 30 days after receipt of written
notice from the Company specifying such failure;
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(iii) The Executive's commission at any time of any act or
omission that results in, or that may reasonably be
expected to result in, a conviction, plea of no
contest, or imposition of unadjudicated probation for
any felony or crime involving moral turpitude;
(iv) The Executive's unlawful use (including being under
the influence) or possession of illegal drugs on the
Company's premises or while performing the
Executive's duties and responsibilities under this
Agreement; or
(v) The Executive's commission at any time of any act of
fraud, embezzlement, misappropriation, material
misconduct, or breach of fiduciary duty against the
Company (or any predecessor thereto or successor
thereof).
(f) "Change in Control" shall mean a change in ownership or
control of the Company effected through a transaction or
series of transactions (other than an offering of Common Stock
to the general public through a registration statement filed
with the Securities and Exchange Commission) whereby any
"person" or related "group" of "persons" (as such terms are
used in Sections 13(d) and 14(d)(2) of the Exchange Act)
(other than the Company, any of its subsidiaries, an employee
benefit plan maintained by the Company or any of its
subsidiaries, a Principal Stockholder or a "person" that,
prior to such transaction, directly or indirectly controls, is
controlled by, or is under common control with, the Company or
a Principal Stockholder) directly or indirectly acquires
beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act) of securities of the Company possessing more
than fifty percent (50%) of the total combined voting power of
the Company's securities outstanding immediately after such
acquisition.
(g) "Common Stock" shall mean common stock of the Company, par
value $0.01 per share.
(h) "Company" shall have the meaning set forth in the preamble
hereto.
(i) "Compensation Committee" means the Compensation Committee of
the Board.
(j) "Date of Termination" shall mean (i) if the Executive's
employment is terminated by her death, the date of her death;
(ii) if the Executive's employment is terminated pursuant to
Section 4(a)(ii) - (vi) either the date indicated in the
Notice of Termination or the date specified by the Company
pursuant to Section 4(b), whichever is earlier; (iii) if the
Executive's employment is terminated pursuant to Section
4(a)(vii) or Section 4(a)(viii), the expiration of the
then-applicable Term.
(k) "Dex West Transaction" shall mean the transaction contemplated
by the Rodney Purchase Agreement.
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(l) "Disability" shall mean the absence of the Executive from the
Executive's duties with the Company on a full-time basis for a
total of three months during any six-month period as a result
of incapacity due to mental or physical illness.
(m) "EBITDA" for a given period shall mean the sum of (i) the
consolidated earnings before interest, taxes, depreciation,
amortization, and extraordinary items and (ii) any management
or similar fees charged to the Company by any Principal
Stockholder (but only to the extent such fees are deducted
from the earnings described in the preceding subsection (i)),
all as reflected on the Company's audited consolidated
financial statements for such period.
(n) "Effective Date" shall have the meaning set forth in the
preamble hereto.
(o) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
(p) "Executive" shall have the meaning set forth in the preamble
hereto.
(q) "Executive Bonus Plan" shall mean the bonus plan to be
developed by the Compensation Committee which shall
incorporate the targets attached hereto as Exhibit A.
(r) "Extension Term" shall have the meaning set forth in Section
2(b).
(s) The Executive shall have "Good Reason" to resign her
employment upon the occurrence of any of the following:
(i) Failure of the Company to continue the Executive in
the position of Executive Vice President and Chief
Operating Officer (or any other position not less
senior to such position);
(ii) A material diminution in the nature or scope of the
Executive's responsibilities, duties or authority;
(iii) Failure of the Company to make any material payment
or provide any material benefit under this Agreement
or any Option Agreement; or
(iv) The Company's material breach of this Agreement;
provided, however, that notwithstanding the foregoing the
Executive may not resign her employment for Good Reason
unless: (A) the Executive provides the Company with at least
30 days prior written notice of her intent to resign for Good
Reason (which notice is provided not later than the 30th day
following the occurrence of the event constituting Good
Reason); and (B) the Company has not remedied the alleged
violation(s) within the 30-day period; and, provided, further,
that the Executive shall not have Good Reason to terminate her
employment due to the failure to consummate all or any portion
of the Dex West Transaction; and provided, further, that
Executive may resign her employment for Good Reason if
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in connection with any Change in Control the purchaser does
not assume the severance provisions set forth in Section 5
(including corresponding definitions) (or substitute
substantially identical severance provisions) with respect to
the Executive and if Executive does not accept employment with
such purchaser in connection with the Change in Control.
(t) "Initial Term" shall have the meaning set forth in Section
2(b).
(u) "Notice of Termination" shall have the meaning set forth in
Section 4(b).
(v) "Option Agreement" shall mean an agreement to purchase Common
Stock pursuant to the Option Plan.
(w) "Option Plan" shall have the meaning set forth in Section
3(c).
(x) "Person" shall mean an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
(y) "Principal Stockholders" shall mean Carlyle Partners III, L.P.
a Delaware limited partnership; Welsh, Carson, Anderson &
Stowe IX, L.P., a Delaware limited partnership; and each of
their respective Affiliates.
(z) "Related Agreements" shall have the meaning set forth in
Section 14.
(aa) "Rodney Purchase Agreement" shall mean that certain Purchase
Agreement by and among Qwest Dex, Inc., Qwest Services
Corporation, Qwest Communications International Inc.
(collectively, the "Qwest Parties") and Dex Holdings LLC,
dated as of August 19, 2002, pursuant to which the Qwest
Parties have agreed to sell all of the interests of GPP LLC
(as described in the Rodney Purchase Agreement) to Dex
Holdings LLC on the terms and conditions set forth therein.
(bb) "Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
(cc) "Term" shall have the meaning set forth in Section 2(b).
2. EMPLOYMENT
(a) The Company shall employ the Executive and the Executive shall
enter the employ of the Company, for the period set forth in
Section 2(b), in the position set forth in Section 2(c), and
upon the other terms and conditions herein provided.
(b) The initial term of employment under this Agreement (the
"Initial Term") shall be for the period beginning on the
effective date of this Agreement and ending on the third
anniversary thereof, unless earlier terminated as provided in
Section 4. The employment term hereunder shall automatically
be extended for successive one-
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year periods (each, an "Extension Term" and, collectively with
the Initial Term, the "Term") unless either party gives notice
of non-extension to the other no later than 90 days prior to
the expiration of the then-applicable Term.
(c) Position and Duties. The Executive shall serve as Executive
Vice President and Chief Operating Officer of the Company with
such customary responsibilities, duties and authority as may
from time to time be assigned to the Executive by the Board.
Such duties, responsibilities and authority may include
services for one or more subsidiaries or affiliates of the
Company including, without limitation, services for Dex Media
West LLC following the consummation of all or any portion of
the Dex West Transaction. The Executive shall report directly
to the Company's Chief Executive Officer. The Executive shall
devote substantially all her working time and efforts to the
business and affairs of the Company. The Executive agrees to
observe and comply with the Company's rules and policies as
adopted by the Company from time to time.
3. COMPENSATION AND RELATED MATTERS
(a) Annual Base Salary. During the Term, the Executive shall
receive a base salary at a rate of $325,000 per annum, which
shall be paid in accordance with the customary payroll
practices of the Company, subject to increase as determined by
the Compensation Committee (the "Annual Base Salary").
(b) Annual Bonus. With respect to each of the Company's fiscal
years that end during the Term, the Executive shall be
eligible to receive an annual performance-based bonus in
accordance with the terms of the Executive Bonus Plan. The
Executive Bonus Plan shall provide that (i) if the Company
achieves the Bank Case EBITDA Target (as set forth on Exhibit
A) for an applicable fiscal year, the Executive's annual bonus
shall be payable in an amount equal to 35% of her Annual Base
Salary, and (ii) if the Company achieves the Equity Case
EBITDA Target (as set forth on Exhibit A) for an applicable
fiscal year, the Executive's annual bonus shall be payable in
an amount equal to 75% of her Annual Base Salary. The
Compensation Committee may, in its sole discretion, provide
that the Executive shall be paid an additional bonus amount
pursuant to the Executive Bonus Plan with respect to any
fiscal year (up to a maximum aggregate annual bonus of 100% of
Annual Base Salary).
(c) Stock Option Plan. As of the Effective Date, the Executive
shall be granted an option to purchase 35,189 shares of Common
Stock, pursuant to the terms and conditions of the Stock
Option Plan of Dex Media, Inc. (the "Option Plan") and an
Option Agreement entered into by and between Dex Media, Inc.
and the Executive as of the date hereof in substantially the
form attached hereto as Exhibit B. In the event that the Dex
West Transaction is consummated, then as of the Closing Date
(as defined in the Rodney Purchase Agreement), the Executive
shall be granted an option to purchase 35,188 shares of Common
Stock, pursuant to the terms and conditions of the Option Plan
and an Option Agreement entered into by and between the
Executive and the Company (or its applicable affiliate).
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(d) Benefits. During the Term, the Executive shall be entitled to
participate in employee benefit plans, programs and
arrangements of the Company now (or, to the extent determined
by the Board, hereafter) in effect which are applicable to the
senior executives of the Company in accordance with their
terms, including, without limitation, the Dex Media, Inc.
Pension Plan and the Dex Media, Inc. 401(k) Savings Plan.
(e) Vacation. During the Term, the Executive shall be entitled to
paid vacation in accordance with the Company's vacation
policies applicable to senior executives of the Company. Any
vacation shall be taken at the reasonable and mutual
convenience of the Company and the Executive.
(f) Expenses. During the Term, the Company shall reimburse the
Executive for all reasonable travel and other business
expenses incurred by her in the performance of her duties to
the Company in accordance with the Company's expense
reimbursement policy.
(g) Relocation Expenses: In accordance with Company's applicable
relocation plans and policies, the Company shall pay or
reimburse Executive for the following reasonable, documented,
out-of-pocket expenses incurred by Executive in connection
with her relocation from her current Texas residence to the
Denver, Colorado metropolitan area: (a) travel,
transportation, meal and similar related moving expenses, (b)
closing costs, real estate commissions, attorney's fees and
other similar costs incurred in connection with Executive's
(i) purchase of any residence in the Denver, Colorado
metropolitan area and (ii) sale of her current Texas residence
and (c) the cost of temporary lodging in the Denver, Colorado
metropolitan area and the cost of weekly transportation
between Dallas, Texas and Denver, Colorado during the period
beginning on the Effective Date and ending on the earlier to
occur of (x) the first anniversary of the Effective Date and
(y) the date Executive sells her current Texas residence.
4. TERMINATION
The Executive's employment hereunder may be terminated by the Company
or the Executive, as applicable, without any breach of this Agreement only under
the following circumstances:
(a) Circumstances.
(i) Death. The Executive's employment hereunder shall
terminate upon her death.
(ii) Disability. If the Executive has incurred a
Disability, the Company may give the Executive
written notice of its intention to terminate the
Executive's employment. In that event, the
Executive's employment with the Company shall
terminate effective on the 30th day after receipt of
such notice by the Executive, provided that within
the 30 days after such
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receipt, the Executive shall not have returned to
full-time performance of her duties.
(iii) Termination for Cause. The Company may terminate the
Executive's employment for Cause.
(iv) Termination without Cause. The Company may terminate
the Executive's employment without Cause.
(v) Resignation for Good Reason. The Executive may resign
her employment for Good Reason.
(vi) Resignation without Good Reason. The Executive may
resign her employment without Good Reason.
(vii) Non-extension of Term by the Company. The Company may
give notice of non-extension to the Executive
pursuant to Section 2(b).
(viii) Non-extension of Term by the Executive. The Executive
may give notice of non-extension to the Company
pursuant to Section 2(b).
(b) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive under this
Section 4 (other than termination pursuant to paragraph
(a)(i)) shall be communicated by a written notice to the other
party hereto indicating the specific termination provision in
this Agreement relied upon, setting forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision
so indicated, and specifying a Date of Termination which, if
submitted by the Executive, shall be at least 30 days
following the date of such notice (a "Notice of Termination")
provided, however, that the Company may, in its sole
discretion, change the Date of Termination to any date
following the Company's receipt of the Notice of Termination.
A Notice of Termination submitted by the Company may provide
for a Date of Termination on the date the Executive receives
the Notice of Termination, or any date thereafter elected by
the Company in its sole discretion. The failure by the
Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Cause or Good Reason shall not waive any right of
the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or
circumstance in enforcing the Executive's or the Company's
rights hereunder.
(c) Company Obligations upon Termination.
(d) Upon termination of the Executive's employment, the Executive
(or the Executive's estate) shall be entitled to receive (i)
except in the event of the Executive's Disability, any amount
of the Executive's Annual Base Salary through the Date of
Termination not theretofore paid, (ii) any expenses owed to
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the Executive under Section 3(f), (iii) any accrued vacation
pay owed to the Executive pursuant to Section 3(e), and (iv)
any amount arising from the Executive's participation in, or
benefits under any employee benefit plans, programs or
arrangements under Section 3(d), which amounts shall be
payable in accordance with the terms and conditions of such
employee benefit plans, programs or arrangements including, if
applicable, any death benefits. In the event of the
Executive's Disability, in lieu of Annual Base Salary during
such period of Disability, Executive shall be entitled to
receive any applicable short-term disability benefits pursuant
to any applicable Company benefit plan.
5. SEVERANCE PAYMENTS
(a) Termination due to Death or Disability. If the Executive's
employment shall terminate pursuant to Section 4(a)(i) due to
the Executive's death, or pursuant to Section 4(a)(ii) due to
Executive's Disability, then the Company shall pay to the
Executive (or Executive's estate) a prorated amount of the
Executive's Annual Bonus based on the Company's year-to-date
performance through the Date of Termination in relation to the
performance targets set forth in the Executive Bonus Plan
(such amount to be determined in good faith by the
Compensation Committee and payable at such time as the
Executive's Annual Bonus would otherwise have been payable
pursuant to the Executive Bonus Plan).
(b) Termination without Cause, resignation for Good Reason, or
non-extension of the Term by the Company. If the Executive's
employment shall terminate without Cause pursuant to Section
4(a)(iv), for Good Reason pursuant to Section 4(a)(v), or
pursuant to non-extension of the Term by the Company pursuant
to Section 4(a)(vii), the Company shall, subject to the
Executive's execution of a general waiver and release of
claims agreement in the Company's customary form:
(i) Continue to pay to the Executive her base salary as
described in Section 3(a), in accordance with the
Company's regular payroll practices, during the
period beginning on the Date of Termination and
ending on the earliest to occur of (A) the first
anniversary of the Date of Termination; or (B) the
first date that the Executive violates any covenant
contained in Section 6 or 7; and
(ii) Pay to the Executive a prorated amount of the
Executive's Annual Bonus based on the Company's
year-to-date performance through the Date of
Termination in relation to the performance targets
set forth in the Executive Bonus Plan (such amount to
be determined in good faith by the Compensation
Committee and payable at such time as Executive's
Annual Bonus would otherwise have been payable
pursuant to the Executive Bonus Plan).
(c) Survival. The expiration or termination of the Term shall not
impair the rights or obligations of any party hereto, which
shall have accrued prior to such expiration or termination.
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6. NON-COMPETITION; NON-SOLICITATION
(a) The Executive shall not, at any time during the Term or during
the 12-month period following the Date of Termination (the
"Restricted Period") directly or indirectly engage in, have
any equity interest in, or manage or operate (whether as
director, officer, employee, agent, representative, partner,
security holder, consultant or otherwise) any of the following
entities, or any subsidiary thereof, or any successor thereto
(the "Competitive Entities"):
(i) Verizon Information Services, a division of Verizon
Communications Inc.
(ii) BellSouth Advertising & Publishing Corporation
(including L. M. Berry)
(iii) Southwestern Bell Yellow Pages, a division of SBC
Communications Inc.
(iv) Alltel Publishing, a division of Alltel Corporation
(v) R. H. Donnelley Inc. (including Sprint Publishing &
Advertising)
(vi) TransWestern Publishing Company LLC
(vii) Yell Group PLC
(viii) Yellow Pages Group Company
(ix) White Directory Publishers, Inc.
provided, however, that the Executive shall be permitted to
acquire a passive stock or equity interest in such entity
provided the stock or other equity interest acquired is not
more than five percent (5%) of the outstanding interest in
such entity; and provided, further, that, notwithstanding the
foregoing, at no time during the Restricted Period may the
Executive directly or indirectly engage in, have any equity
interest in, or manage or operate (whether as director,
officer, employee, agent, representative, partner, security
holder, consultant or otherwise) any parent entity or other
Affiliate of any of the Competitive Entities to the extent
that such parent entity or other Affiliate engages in (or the
Executive's services therefor relate to) telephone directory
publishing, marketing or advertising (or any other business
directly engaged in by the Company during the Restricted
Period).
(b) During the Restricted Period, the Executive will not, and will
not permit any of her affiliates to, directly or indirectly,
recruit or otherwise solicit or induce any employee, customer,
subscriber or supplier of the Company to terminate its
employment or arrangement with the Company, otherwise change
its relationship with the Company, or establish any
relationship with the Executive or any of her affiliates for
any business purpose deemed competitive with the business of
the Company.
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(c) In the event the terms of this Section 6 shall be determined
by any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or over
too great a geographical area or by reason of its being too
extensive in any other respect, it will be interpreted to
extend only over the maximum period of time for which it may
be enforceable, over the maximum geographical area as to which
it may be enforceable, or to the maximum extent in all other
respects as to which it may be enforceable, all as determined
by such court in such action.
(d) As used in this Section 6, the term "Company" shall include
the Company, its parent, related entities, and any of its
direct or indirect subsidiaries.
(e) The provisions contained in Section 6(a) and Section 6(b) may
be altered and/or waived with the prior written consent of the
Board or the Compensation Committee.
7. NONDISCLOSURE OF PROPRIETARY INFORMATION; NON-DISPARAGEMENT
(a) Except as required in the faithful performance of the
Executive's duties hereunder or pursuant to Section 7(c), the
Executive shall, during the Term and after the Date of
Termination, maintain in confidence and shall not directly or
indirectly, use, disseminate, disclose or publish, or use for
his benefit or the benefit of any person, firm, corporation or
other entity any confidential or proprietary information or
trade secrets of or relating to the Company, including,
without limitation, information with respect to the Company's
operations, processes, protocols, products, inventions,
business practices, finances, principals, vendors, suppliers,
customers, potential customers, marketing methods, costs,
prices, contractual relationships, regulatory status,
compensation paid to employees or other terms of employment
("Proprietary Information"), or deliver to any person, firm,
corporation or other entity any document, record, notebook,
computer program or similar repository of or containing any
such Proprietary Information. The Executive's obligation to
maintain and not use, disseminate, disclose or publish, or use
for his benefit or the benefit of any person, firm,
corporation or other entity any Proprietary Information after
the Date of Termination will continue so long as such
Proprietary Information is not, or has not by legitimate means
become, generally known and in the public domain (other than
by means of the Executive's direct or indirect disclosure of
such Proprietary Information) and is continued to be
maintained as Proprietary Information by the Company. The
parties hereby stipulate and agree that as between them, the
Proprietary Information identified herein is important,
material and affects the successful conduct of the businesses
of the Company (and any successor or assignee of the Company).
(b) Upon termination of the Executive's employment with the
Company for any reason, the Executive will promptly deliver to
the Company all correspondence, drawings, manuals, letters,
notes, notebooks, reports, programs, plans, proposals,
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financial documents, or any other documents concerning the
Company's customers, business plans, marketing strategies,
products or processes.
(c) The Executive may respond to a lawful and valid subpoena or
other legal process but shall give the Company the earliest
possible notice thereof, shall, as much in advance of the
return date as possible, make available to the Company and its
counsel the documents and other information sought and shall
assist such counsel in resisting or otherwise responding to
such process.
(d) The Executive agrees not to disparage the Company, any of its
products or practices, or any of its directors, officers,
agents, representatives, stockholders or affiliates, either
orally or in writing, at any time; provided, that the
Executive may confer in confidence with her legal
representatives and make truthful statements as required by
law.
(e) The Company agrees to instruct the members of the Board and
the executive officers of the Company not to disparage the
Executive, either orally or in writing, at any time; provided,
that, the Company may confer in confidence with its legal
representatives and make truthful statements as required by
law.
(f) As used in this Section 7, the term "Company" shall include
the Company, its parent, related entities, and any of its
direct or indirect subsidiaries.
8. INJUNCTIVE RELIEF
It is recognized and acknowledged by the Executive that a breach of the
covenants contained in Sections 6 and 7 will cause irreparable damage to Company
and its goodwill, the exact amount of which will be difficult or impossible to
ascertain, and that the remedies at law for any such breach will be inadequate.
Accordingly, the Executive agrees that in the event of a breach of any of the
covenants contained in Sections 6 and 7, in addition to any other remedy which
may be available at law or in equity, the Company will be entitled to specific
performance and injunctive relief.
9. ASSIGNMENT AND SUCCESSORS
The Company may assign its rights and obligations under this Agreement
to any entity, including any successor to all or substantially all the assets of
the Company, by merger or otherwise, and may assign or encumber this Agreement
and its rights hereunder as security for indebtedness of the Company and its
affiliates. The Executive may not assign her rights or obligations under this
Agreement to any individual or entity. This Agreement shall be binding upon and
inure to the benefit of the Company, the Executive and their respective
successors, assigns, personnel and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable.
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10. GOVERNING LAW
This Agreement shall be governed, construed, interpreted and enforced
in accordance with the substantive laws of the state of Delaware, without
reference to the principles of conflicts of law of Delaware or any other
jurisdiction, and where applicable, the laws of the United States.
11. VALIDITY
The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
12. NOTICES
Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex, telecopy, or
certified or registered mail, postage prepaid, as follows:
(a) If to the Company:
Dex Media, Inc.
198 Inverness Drive West
Englewood, CO 80112
Fax.: (303) 784-1964
Attn: Vice President of Human Resources
with copies to:
The Carlyle Group Welsh, Carson, Anderson & Stowe
520 Madison Avenue 320 Park Avenue
41st Floor Suite 2500
New York, New York 10022 New York, New York 10022
Fax: (212) 381-4901 Fax: (212) 893-9562
Attn: James A. Attwood Attn: Anthony J. de Nicola
and a copy to:
Latham & Watkins, LLP
885 Third Avenue
New York, New York 10022-4802
Fax: (212) 751-4864
Attn: R. Ronald Hopkinson
(b) If to the Executive, to the address set forth on the signature
page hereto
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or at any other address as any party shall have specified by notice in writing
to the other party.
13. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same Agreement.
14. ENTIRE AGREEMENT
The terms of this Agreement and the other agreements and instruments
contemplated hereby or referred to herein (collectively the "Related
Agreements") are intended by the parties to be the final expression of their
agreement with respect to the employment of the Executive by the Company and may
not be contradicted by evidence of any prior or contemporaneous agreement
(including without limitation any Term Sheet or similar agreement entered into
between the Company and the Executive). The parties further intend that this
Agreement and the Related Agreements shall constitute the complete and exclusive
statement of their terms and that no extrinsic evidence whatsoever may be
introduced in any judicial, administrative, or other legal proceeding to vary
the terms of this Agreement and the Related Agreements.
15. AMENDMENTS; WAIVERS
This Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by the Executive and a duly authorized officer of
Company. By an instrument in writing similarly executed, the Executive or a duly
authorized officer of the Company may waive compliance by the other party or
parties with any provision of this Agreement that such other party was or is
obligated to comply with or perform, provided, however, that such waiver shall
not operate as a waiver of, or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any right, remedy, or
power hereunder preclude any other or further exercise of any other right,
remedy, or power provided herein or by law or in equity.
16. NO INCONSISTENT ACTIONS
The parties hereto shall not voluntarily undertake or fail to undertake
any action or course of action inconsistent with the provisions or essential
intent of this Agreement. Furthermore, it is the intent of the parties hereto to
act in a fair and reasonable manner with respect to the interpretation and
application of the provisions of this Agreement.
17. CONSTRUCTION
This Agreement shall be deemed drafted equally by both the parties. Its
language shall be construed as a whole and according to its fair meaning. Any
presumption or principle that the language is to be construed against any party
shall not apply. The headings in this Agreement are only for convenience and are
not intended to affect construction or interpretation. Any references to
paragraphs, subparagraphs, sections or subsections are to those parts of this
Agreement, unless the context clearly indicates to the contrary. Also, unless
the context clearly indicates to the contrary, (a) the plural includes the
singular and the singular includes the plural;
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(b) "and" and "or" are each used both conjunctively and disjunctively; (c)
"any," "all," "each," or "every" means "any and all," and "each and every"; (d)
"includes" and "including" are each "without limitation"; (e) "herein,"
"hereof," "hereunder" and other similar compounds of the word "here" refer to
the entire Agreement and not to any particular paragraph, subparagraph, section
or subsection; and (f) all pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural as the identity
of the entities or persons referred to may require.
18. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before an
arbitrator in New York, New York in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitration award in any court having jurisdiction, provided, however, that the
Company shall be entitled to seek a restraining order or injunction in any court
of competent jurisdiction to prevent any continuation of any violation of the
provisions of Sections 6 or 7 of the Agreement and the Executive hereby consents
that such restraining order or injunction may be granted without requiring the
Company to post a bond. Only individuals who are (i) lawyers engaged full-time
in the practice of law; and (ii) on the AAA register of arbitrators shall be
selected as an arbitrator. Within 20 days of the conclusion of the arbitration
hearing, the arbitrator shall prepare written findings of fact and conclusions
of law. It is mutually agreed that the written decision of the arbitrator shall
be valid, binding, final and non-appealable, provided however, that the parties
hereto agree that the arbitrator shall not be empowered to award punitive
damages against any party to such arbitration. The arbitrator shall require the
non-prevailing party to pay the arbitrator's full fees and expenses or, if in
the arbitrator's opinion there is no prevailing party, the arbitrator's fees and
expenses will be borne equally by the parties thereto. In the event action is
brought to enforce the provisions of this Agreement pursuant to this Section 18,
the non-prevailing parties shall be required to pay the reasonable attorney's
fees and expenses of the prevailing parties, except that if in the opinion of
the court or arbitrator deciding such action there is no prevailing party, each
party shall pay its own attorney's fees and expenses.
19. ENFORCEMENT
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
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20. WITHHOLDING
The Company shall be entitled to withhold from any amounts payable
under this Agreement any federal, state, local or foreign withholding or other
taxes or charges which the Company is required to withhold. The Company shall be
entitled to rely on an opinion of counsel if any questions as to the amount or
requirement of withholding shall arise.
21. EMPLOYEE ACKNOWLEDGEMENT
The Executive acknowledges that she has read and understands this
Agreement, is fully aware of its legal effect, has not acted in reliance upon
any representations or promises made by the Company other than those contained
in writing herein, and has entered into this Agreement freely based on her own
judgment.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
COMPANY
By: /s/ George Burnettt
-------------------------------
Name: George Burnett
Title: CEO and President
EXECUTIVE
By: /s/ Marilyn Neal
-------------------------------
Marilyn Neal
<PAGE>
EXHIBIT A
EXECUTIVE BONUS PLAN
ANNUAL BONUS EBITDA TARGETS
($ MILLIONS)
YEAR ENDING DECEMBER 31
DEX
<CAPTION>
PROJECTED EBITDA SUMMARY* 2003 2004 2005 2006 2007
------------------------- ----- ---- ---- ------- ------
BANK CASE
Dex East EBITDA $ 364 $365 $373 $ 383 $ 394
Dex EBITDA $ 906 $917 $939 $ 966 $ 996
EQUITY CASE
Dex East EBITDA $ 369 $378 $393 $ 411 $ 430
Dex EBITDA $ 913 $942 $976 $ 1,020 $1,069
* With respect to each calendar year ending prior to the closing of the Dex West
Transaction, the respective Bank Case and Equity Case "Dex East EBITDA" targets
shall apply. With respect to the calendar year in which the closing of the Dex
West Transaction occurs and each calendar year thereafter, the respective Bank
Case and Equity Case "Dex EBITDA" targets shall apply for purposes of this
Agreement. In the event that the Dex West Transaction is not consummated, the
respective Bank Case and Equity Case "Dex East EBITDA" targets shall apply with
respect to all calendar years for purposes of this Agreement. EBITDA targets
shall be adjusted as appropriate to reflect acquisitions, divestitures and other
recapitalizations (other than the Dex West Transaction).
<PAGE>
EXHIBIT B
[OPTION AGREEMENT]