AGREEMENT
THIS AGREEMENT is made and entered into this 6th day of June, 2005, by
and between BellSouth Corporation, a Georgia corporation ("Company"), and
Xxxxxxx X. Xxxxxx ("Executive"):
Reasons for this Agreement. Company has identified Executive as an
individual with significant skills and experience critical to the business of
Company. In view of the significant and growing demand for executive talent and
the potential impact on Company's executives of the transformational changes
occurring within our industry and company, Company desires to provide Executive
through this Agreement with certain incentives to remain in Company's
employment. This Agreement is also designed to address potential long-term
employment concerns of Executive and to impose certain reasonable restrictions
on Executive's activities designed to protect Company's interests should
Executive's employment terminate.
Executive has been employed by Company and its Affiliated Companies
since December 1998 and serves as Company's Chief Information, E-Commerce and
Security Officer, reporting to Company's Chairman and Chief Executive Officer.
Executive has responsibility for all information technology for Company and
Affiliated Companies, for corporate-wide strategies for information technology
functions and for all aspects of Company's physical, network and data security.
Executive acknowledges that Company and Affiliated Companies have disclosed or
made available and in the future will disclose and make available Confidential
Information to Executive which could be used by Executive to Company's or
Affiliated Companies' detriment. In addition, in connection with his employment,
Executive has developed and in the future will develop important relationships
and contacts with employees valuable to Company and Affiliated Companies.
Executive further acknowledges that the covenant not to compete and
other restrictive covenants in this Agreement are fair and reasonable, that
enforcement of the provisions of this Agreement will not cause him undue
hardship, and that the provisions of this Agreement are reasonably necessary and
commensurate with the need to protect Company and Affiliated Companies and their
business interests and property from irreparable harm.
Executive and Company have previously entered into an agreement dated
October 18, 2000 (the "Prior Agreement"). Executive and Company now desire to
amend the Prior Agreement as provided herein and to restate the Prior Agreement
in its entirety.
Agreement. In consideration of the mutual promises contained in this
Agreement including, among other things, substantial additional compensation and
benefits to Executive, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Executive and Company agree as
follows:
1. Prior Agreement. Executive and Company agree and acknowledge that
upon execution of this Agreement, this Agreement amends, supersedes and replaces
the Prior Agreement in its entirety.
2. Minimum Benefits At or After Age 58. In the event Executive attains
the age of fifty-eight (58) while still employed by Company, he shall be
entitled to the benefits described in subsections (a) and (b) below:
(a) Minimum SERP Benefit. In determining the amount of benefits payable
with respect to Executive under SERP, Executive shall be entitled to benefits
equal to the greater of:
(i) an aggregate annual benefit based on forty-five
percent (45%) of "Included Earnings" (as such term is
defined in SERP), increased by two (2) percentage
points for each additional year of "Net Credited
Service" (as such term is defined in SERP) earned by
Executive after the year in which his fifty-eighth
(58th) birthday occurs (such percentage not to
exceed, however, in the aggregate seventy percent
(70%) of Included Earnings), instead of the formula
described in section 4.4(a)(i)(A) of SERP; and
(ii) the benefit provided to Executive under SERP without
regard to this Section 2(a).
Except as otherwise provided in this Section 2(a), all other terms and
conditions of SERP (including without limitation all applicable discounts,
benefit options and administrative provisions) shall govern Executive's
entitlement to benefits thereunder. In the event SERP shall be amended or
restated or redesigned, benefits payable with respect to Executive under such
amended, restated or redesigned plan shall include a benefit enhancement
designed to approximate as nearly as reasonably possible the SERP benefit
enhancement described in this Section 2(a).
(b) Post-Retirement Medical Benefits. If Executive's employment is
subsequently terminated at a time when Executive has not yet satisfied age and
service requirements for eligibility for Company provided post-retirement
medical benefits, Executive shall be entitled to post-retirement medical
benefits from Company comparable to the coverage provided by Company's medical
benefits plan(s) to similarly situated employees who do retire eligible for such
post-retirement coverage. Such benefits shall be administered under procedures
implemented by Company from time to time with respect to such special
post-retirement benefits.
3. Termination Allowance Upon Involuntary Separation. In the event
Executive's employment is terminated under circumstances described below in this
Section 3, Company shall pay to Executive a termination allowance. The
termination allowance shall be an amount equal to the sum of (i) two hundred
percent (200%) of Executive's Base Salary in effect on the date of Executive's
termination of employment, plus (ii) two hundred percent (200%) of the standard
award amount applicable to Executive under the short-term incentive plan under
which Executive is eligible for an annual cash bonus for the year in which his
date of termination occurs, less all applicable withholdings, payable in a
single lump sum payment. Payment of the
termination allowance shall be made as soon as practicable following Executive's
termination of employment under circumstances entitling him to such payment, and
satisfaction of all conditions described in this Agreement on Executive's
entitlement to such payment.
Executive's employment shall be deemed to have been terminated under
circumstances described in this Section 3 only if all of the following
conditions are satisfied:
(a) Executive's employment is terminated either (1) by Company, other
than for Cause, or (2) by Executive for Good Reason; and
(b) Executive executes a release satisfying the terms of Section 7(b)
of this Agreement; and
(c) Executive is not transferred to or reemployed by an Affiliated
Company.
4. SERP Benefit Upon Involuntary Separation. If, after Executive has
attained the age of fifty-eight (58), Executive's employment is terminated under
circumstances described in Section 3 of this Agreement, in determining
Executive's benefits under SERP, no age related discounts shall apply. Moreover,
if any such termination shall occur after the occurrence of a "Change in
Control" (as such term is defined in the CIC Agreement), for purposes of this
Section 4, in determining whether the conditions described in Section 3 of this
Agreement have been satisfied, "Cause" and "Good Reason" shall have the meaning
ascribed to such terms in the CIC Agreement instead of the definitions of such
terms reflected in Section 25 of this Agreement.
5. Vesting of Executive Benefits Upon Involuntary Separation. In the
event Executive's employment is terminated under circumstances described in
Section 3 of this Agreement, all benefits of Executive under the BellSouth
Supplemental Life Insurance Plan and the SERP shall be determined as if
Executive, upon his termination of employment, had been eligible for a service
pension under the terms and conditions of the BellSouth Personal Retirement
Account Pension Plan. This provision shall be disregarded in determining
benefits of (or with respect to) Executive under any other Company-sponsored
compensation or benefit plan or program, including without limitation the Stock
Plan and the Stock and Incentive Compensation Plan.
6. Non-Vested Stock Options Upon Involuntary Separation. In the event
Executive's employment is terminated under circumstances described in Section 3
of this Agreement, Company shall pay to Executive an amount with respect to all
Options (as such term is defined in the Stock Plan) to acquire Company stock
under the terms of the Stock Plan which are forfeited by virtue of having not
been vested and exercisable at the time of such termination of employment,
determined:
(a) by multiplying the number of Options in each such grant by the
amount, if any, by which the Fair Market Value of Company's common stock subject
to the Option exceeds the exercise price of those Options; and
(b) by then multiplying the amount determined in (a) above with respect
to each such Option grant by a fraction, the numerator of which is the number of
whole calendar months which shall have elapsed from the grant date of such
Option through the date of Executive's employment termination date, and the
denominator of which is the number of calendar months in the full vesting period
applicable to such grant.
Payment of the amount so determined, less all applicable withholdings,
shall be made in a single lump sum payment as soon as practicable following
Executive's termination of employment under circumstances entitling him to such
payment, and satisfaction of all conditions described in this Agreement on
Executive's entitlement to such payment.
For purposes of this Agreement, "Fair Market Value" shall mean the
average of the high and low sales prices of one share of Company stock subject
to the Option on the New York Stock Exchange for the last business day (on which
the New York Stock Exchange operates and is open to the public for trading) of
each of the three (3) months preceding the month in which Executive's
termination of employment occurs.
7. Discharge and Waiver.
(a) Executive fully releases and forever discharges Company and
Affiliated Companies, and any employee, officer, director, representative,
agent, successor or assign of Company and Affiliated Companies (both in their
personal and official capacities), and all persons acting by, through and under
or in concert with any of them, from any and all claims, demands, actions,
causes of action, remedies, suits, obligations, damages, losses, costs and
expenses of whatever kind or nature, whether under the common law, state law,
federal law (including but not limited to the Age Discrimination in Employment
Act of 1967) or otherwise, through the date of this Agreement, including those
arising from or in connection with the terms and conditions of employment with
Company (and Affiliated Companies). This paragraph is not intended to and shall
not affect benefits to which Executive may be entitled under any pension,
savings, health, welfare, or other benefit plan in which Executive is a
participant.
(b) Furthermore, Company's obligations under this Agreement upon
termination of Executive's employment, and Executive's entitlement to any such
benefits, are expressly conditioned upon execution by Executive, upon
termination of his employment, of a release agreement substantially in the form
of the release agreement attached to this Agreement as Exhibit A, which is
incorporated herein by this reference.
8. Covenant Not to Xxx. Executive covenants and agrees not to make or
file any claim, demand or cause of action or seek any remedy of whatever nature,
whether under the common law, state law, federal law or otherwise, arising from
or in connection with the matters discharged and waived in Section 7 above.
Notwithstanding the foregoing, in the event Executive files a charge or lawsuit
under the Age Discrimination in Employment Act of 1967 ("ADEA") and thereby
challenges the validity of the release described in Section 7, such charge or
lawsuit will not be considered a breach of this Section 8.
9. Confidential Information. Executive agrees to protect Confidential
Information from misuse or unauthorized disclosure. In addition to complying
with all applicable laws governing trade secret and confidential information
disclosure, Executive will not (i) use, except in connection with work for
Company or Affiliated Companies, or threaten to use, or (ii) disclose,
communicate or give others access to (orally, in writing, electronically or
digitally) or threaten to disclose, communicate or give other access to any
Confidential Information. For purposes of this Agreement, "Confidential
Information" shall mean information, whether generated internally or externally,
whether in written, oral, digital, electronic or any other form or format,
relating to Company's or Affiliated Companies' businesses that derives economic
value, actual or potential, from not being generally known to other Persons and
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy or confidentiality, including, but not limited to, studies
and analyses, technical or nontechnical data, programs, patterns, compilations,
devices, methods, models (including cost and /or pricing models and operating
models), techniques, drawings, processes, employee compensation data, and
financial data (including marketing information and strategies and personnel
data). After the period of three (3) years following termination of Executive's
employment with Company, for purposes of this Agreement, Confidential
Information shall be defined only as information meeting the criteria set forth
above that remains a trade secret under applicable law. Executive acknowledges
that any use of, reliance upon, disclosure or other misappropriation of
Confidential Information inconsistent with the terms of this Agreement
(including without limitation acceptance by Executive of a position in which the
inevitability of such use, reliance, disclosure or misappropriation is
reasonably anticipated) would result in material and irreparable damage and
injury to Company or Affiliated Companies.
10. Limitation on Competition. In consideration of the additional
payments, benefits and other rights that are being provided to Executive under
this Agreement, while employed by Company or an Affiliated Company, and during
the eighteen (18) months after any termination of his employment, Executive
agrees not to provide any "Services" (as defined in the third paragraph of this
Section 10) to any Person that competes directly with Company or any Affiliated
Companies, whether Executive provides the Services as an employee, consultant,
independent contractor, advisor or director. After the termination of
Executive's employment, the foregoing covenant shall restrict Executive's
actions only with respect to competition in the Territory.
For purposes of this Agreement, the term "Territory" shall mean the
geographical territory consisting of those counties and parishes in the states
of Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina,
South Carolina, and Tennessee, listed on Exhibit B attached hereto and
incorporated by reference herein, which the Parties acknowledge represents
geographical territories in which Executive, as of the Effective Date, has
responsibility for providing Services to Company or Affiliated Companies. The
Parties also acknowledge that the entire Territory consists of geographical
territories in which Company and Affiliated Companies, directly or indirectly,
are conducting business on the Effective Date. In an effort to impose reasonable
limitations on the scope of the Territory, Company has not required that
Executive comply with the covenant in this Section 10 in all geographical areas
where Company and Affiliated Companies are licensed to conduct business and are
conducting business, even
though the Parties acknowledge that Executive is performing Services throughout
that entire area. Executive agrees that because of the widespread nature of
Company's business and the fact that, as one of the most senior executives in
the Company Executive's employment responsibilities extend to all areas where
Company and Affiliated Companies operate, Executive's engaging in competitive
activity anywhere in the Territory would irreparably injure Company or
Affiliated Companies and that, therefore, a more limited geographic restriction
is neither feasible nor appropriate.
For purposes of this Agreement, the term "Services" shall mean services
which Executive as of the Effective Date is responsible for providing to Company
and Affiliated Companies, which Executive acknowledges consists of providing
management, administrative and advisory services related to information
technology management, planning and administration with respect to the
communications services business, consisting of wireline (local exchange,
exchange access and intraLATA toll) telecommunications services, systems and
products, wireless (cellular, personal communications service, and mobile data)
communications services, systems and products, electronic commerce or
communications (internet and web based applications), data transmission and
networking, entertainment services, systems and products, paging services,
systems and products, and telecommunications directory advertising and
publishing.
Executive represents and warrants that Executive's education, training
and experience are such that this Section 10 will not jeopardize or
significantly interfere with Executive's ability to secure other gainful
employment.
11. Limitation on Solicitation of Company Personnel. In consideration
of the additional payments, benefits and other rights that are being provided to
Executive under this Agreement, while employed by Company or an Affiliated
Company and during a period of eighteen (18) months after any termination of his
employment, Executive will not, directly or indirectly, induce or solicit any
employee or other personnel, director, advisor or independent contractor of
Company or any Affiliated Company to sever his or its relationship with Company
or the Affiliated Company, or recruit or attempt to recruit such parties to
enter into a substantially similar relationship with another business; provided,
however, that after termination of Executive's employment this restriction shall
apply only to parties with whom Executive had material contact within eighteen
(18) months prior to the termination of his employment. However, Executive may
hire or otherwise engage on behalf of himself or on behalf of any company or
entity any party who terminated his or its relationship with the Company or an
Affiliated Company without any inducement or attempted inducement or
solicitation by Executive.
12. Interpretation; Severability of Invalid Provisions. Executive
acknowledges and agrees that the limitations described in this Agreement,
including specifically the limitations upon his activities, are reasonable in
scope, are necessary for the protection of Company's and Affiliated Companies'
business, and form an essential part of the consideration for which this
Agreement has been entered into. It is the intention of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
applicable laws and public policies. Nonetheless, the rights and restrictions
contained in this Agreement may be exercised
and shall be applicable and binding only to the extent they do not violate any
applicable laws and are intended to be limited to the extent necessary so that
they will not render this Agreement illegal, invalid or unenforceable. If any
provision of this Agreement shall be held to be illegal, invalid or
unenforceable by a court of competent jurisdiction, the remaining provisions
shall remain in full force and effect. The provisions of this Agreement do not
in any way limit or abridge Company's or Affiliated Companies' rights under the
laws of unfair competition, trade secret, copyright, patent, trademark or any
other applicable law(s), all of which are in addition to and cumulative of
Company's or Affiliated Companies' rights under this Agreement. Executive agrees
that the existence of any claim by Executive against Company or any Affiliated
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to enforcement by Company or any Affiliated Company of any or all of
such provisions or covenants.
13. Relief.
(a) The parties acknowledge that a breach or threatened breach by
Executive of any of the terms of this Agreement would result in material and
irreparable damage and injury to Company or Affiliated Companies, and that it
would be difficult or impossible to establish the full monetary value of such
damage. Therefore, Company and Affiliated Companies shall be entitled to
injunctive relief in the event of Executive's breach or threatened breach of any
of the terms contained in this Agreement. In the event of any breach of this
Agreement by Executive, if Company or any Affiliated Company should employ
attorneys or incur other expenses for the enforcement of any obligation or
agreement of Executive contained herein, Executive agrees that, on demand and to
the extent permitted by law, Executive shall reimburse Company or the Affiliated
Company for its reasonable attorneys' fees and such other reasonable expenses so
incurred.
(b) In the event that Executive fails to comply with the terms of
Section 9, Section 10 or Section 11 of this Agreement, then, in addition to all
other rights and remedies available to Company and Affiliated Companies under
this Agreement, or at law or in equity:
(i) all amounts otherwise payable by Company or an
Affiliated Company to (or on behalf of) Executive
pursuant to the terms of this Agreement for periods
subsequent to the date of such failure shall be
forfeited and Company and Affiliated Companies shall
cease to be under any further obligation to Executive
with respect to the compensation and benefits
described in this Agreement; and
(ii) Executive shall refund to Company promptly any and
all amounts previously paid to or on behalf of
Executive pursuant to the terms of this Agreement for
periods subsequent to the occurrence of such failure.
14. Arbitration. Except for the right to seek temporary restraint or
interim injunctive relief from a court of competent jurisdiction (as provided in
Section 13), any dispute, controversy or claim arising out of or relating to
this Agreement, or the breach, termination or invalidity of
any provision hereof (collectively, a "Claim") shall be settled by arbitration
pursuant to the National Rules for the Resolution of Commercial Disputes of the
American Arbitration Association. Any such arbitration shall be conducted by one
arbitrator, with experience in the matters covered by this Agreement, mutually
acceptable to the Parties. If the Parties are unable to agree on the arbitrator
within thirty (30) days of one party giving the other party written notice of
intent to arbitrate a Claim, the American Arbitration Association shall appoint
an arbitrator with such qualifications to conduct such arbitration. The decision
of the arbitrator in any such arbitration shall be conclusive and binding on the
Parties. Any such arbitration shall be conducted in Atlanta, Georgia.
The Parties indicate their acceptance of the foregoing arbitration
requirement by initialing below:
/s/ RDS /s/ FAD
--------------------- -----------------------
Company Executive
15. Agreement Binding. This Agreement shall be binding upon and inure
to the benefit of Company and Affiliated Companies, and their successors,
assignees, and designees, and Executive and Executive's heirs, executors,
administrators, personal representatives and assigns.
16. Entire Agreement; Previous Agreement. This Agreement and all
exhibits to this Agreement (which are incorporated into the Agreement by
reference) contain the entire agreement between the Parties and no statements,
promises or inducements made by either Party, or agent of either Party, which
are not contained in this Agreement shall be valid or binding; provided,
however, that the matters dealt with herein supersede the terms of Company
benefit plans and agreements between the Parties entered into pursuant to such
plans only to the extent the provisions of such plans and related agreements are
inconsistent with this Agreement and other provisions of such plans and related
agreements not inconsistent with this Agreement are not affected. This Agreement
may not be enlarged, modified or altered except in writing signed by the
Parties.
17. Nonwaiver. The failure of Company or any Affiliated Companies to
insist upon strict performance of the terms of this Agreement, or to exercise
any option herein, shall not be construed as a waiver or a relinquishment for
the future of such term or option, but rather the same shall continue in full
force and effect.
18. Notices. All notices, requests, demands and other communications
required or permitted by this Agreement or by any statute relating to this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered or mailed, first-class, certified mail, postage prepaid, addressed to
Company or Executive at the address reflected on Exhibit C attached hereto and
incorporated herein by this reference.
19. Nonduplication. Notwithstanding any other provisions of this
Agreement, if Executive becomes entitled to severance benefits under the CIC
Agreement, (i) Executive shall
be entitled to either the severance benefits described in the CIC Agreement or
the termination allowance described in Section 3 of this Agreement, whichever
provides the greater benefit to Executive, but not both; (ii) Executive shall be
entitled to vesting of executive benefits as described in the CIC Agreement or
vesting of executive benefits as described in Section 5 of this Agreement,
whichever provides the greater benefit to Executive, but not both; and (iii) any
provision of the CIC Agreement providing for immediate vesting of Options
applicable to any Options described in this Agreement shall apply in lieu of the
provisions of Section 6 of this Agreement with respect to such Options. Except
as otherwise specifically provided in this Section 19, both this Agreement and
the CIC Agreement shall continue in full force and effect, and any provisions
regarding non-duplication of the CIC Agreement shall be interpreted consistently
herewith.
20. Nondisclosure. Executive shall not disclose the existence or terms
of this Agreement to any third party (excluding Executive's spouse and
children), except to receive advice of legal counsel, financial advisors or tax
advisors (who shall also be required to maintain its confidentiality) or to
comply with any statutory or common law duty; provided that these restrictions
on disclosure shall not apply to the extent that the existence of this Agreement
are disclosed by Company or any Affiliated Company as part of its periodic
public filings and disclosures or otherwise.
21. Employment Rights. Company and Executive mutually acknowledge and
agree that this Agreement is not intended to and shall not bind either party to
an employment relationship of any fixed or minimum duration such that, in the
absence of an express written agreement to the contrary, Executive's employment
is "at will" and either party shall have the right to terminate the employment
relationship for any reason and at any time. Furthermore, Executive shall be
subject to the same general terms and conditions of employment as other Company
employees.
22. Effect on Internal Revenue Code Section 409A. Notwithstanding any
provision of this Agreement to the contrary, if (i) Executive is a "specified
employee" for purposes of Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations thereunder and (ii) Section 409A of
the Code and the regulations thereunder require that any payment be deferred in
order to avoid application of the excise tax provided by Section 409A(a)(1)(B)
of the Code, then any such payment shall be deferred for six (6) months from the
date of termination (or such later date to avoid such excise tax).
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
24. Governing Law; Consultation with Counsel. This Agreement shall be
construed under and governed by the laws of the State of Georgia. Executive has
been advised to consult with an attorney, acknowledges having had ample
opportunity to do so and fully understands the binding effect of this Agreement.
In this regard, Executive acknowledges that a copy of this Agreement was
provided to Executive for review and consideration for up to twenty-
two (22) days. Further, Executive understands that this Agreement may be revoked
by Executive within seven (7) days from the date of execution of this Agreement.
Executive further acknowledges that he is a sophisticated businessperson and
that given his opportunity to review, negotiate and reject this Agreement, has
bargaining power equal to that of Company. Therefore, the provisions of this
Agreement shall not be construed against Company.
25. Definitions. For purposes of this Agreement, the following terms
shall have the meaning specified below:
(a) "Affiliated Companies" - shall mean those subsidiaries and
affiliates of Company listed on Exhibit D attached hereto and incorporated
herein by this reference and any direct successors to those companies through
acquisition or merger or by way of name change.
(b) "Base Salary" - shall mean the gross annual base salary payable to
Executive including (i) the amounts of any before-tax contributions made by
Executive from such salary to the BellSouth Retirement Savings Plan, or any
other tax-qualified cash or deferred arrangement sponsored by Company, and (ii)
the amount of any other deferrals of such salary under any nonqualified deferred
compensation plan(s) maintained by Company.
(c) "Cause" - shall mean Executive's (i) engaging in an act (or acts)
of willful dishonesty involving Company or Affiliated Companies or their
business(es) that is demonstrably injurious to Company or Affiliated Companies;
(ii) refusal or failure to follow reasonable instructions of Company's Chief
Executive Officer or Board of Directors; or (iii) conviction of a crime
classified as a felony.
(d) "CIC Agreement" - shall mean the Executive Severance Agreement
entered into by and between Executive and Company, as amended and/or superseded
from time to time, providing certain benefits in the event of a change in
corporate control of Company.
(e) "Confidential Information" - shall have the meaning ascribed to
such term in Section 9 of this Agreement.
(f) "Fair Market Value" - shall have the meaning ascribed to such term
in Section 6 of this Agreement.
(g) "Good Reason" - shall mean, without Executive's express written
consent a reduction in Executive's Base Salary, or his compensation band, as in
effect immediately prior to such reduction, or the failure to pay a bonus award
to which Executive is otherwise entitled under any of the short term or long
term incentive plans in which Executive participates (or any successor incentive
compensation plans) at the time such awards are usually paid.
(h) "Person" - shall mean any individual, corporation, bank,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, governmental or other legal or business entity.
(i) "SERP" - shall mean the BellSouth Corporation Supplemental
Executive Retirement Plan, as amended from time to time.
(j) "Stock and Incentive Compensation Plan" - shall mean the BellSouth
Corporation Stock and Incentive Compensation Plan, and related award agreements,
as amended from time to time.
(k) "Stock Plan" - the BellSouth Corporation Stock Plan and related
award agreements, as amended from time to time.
(l) "Territory" - shall have the meaning ascribed to such term in
Section 10 of this Agreement.
IN WITNESS WHEREOF, Company has caused this Agreement to be executed by
its duly authorized representative, and Executive has executed this Agreement,
as of the date written above.
EXECUTIVE: BELLSOUTH CORPORATION:
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
XXXXXXX X. XXXXXX Xxxxxxx X. Xxxxxxxxxx
Title: VP - Human Resources
EXHIBIT A
RELEASE AGREEMENT
For and in consideration of the mutual promises contained in the
Agreement entered into on the ______ day of __________, 2005, between Xxxxxxx X.
Xxxxxx ("Executive") and BellSouth Corporation ("Company"), Executive does
hereby, for himself, his heirs, executors, administrators, and assigns, release
and forever discharge Company, its subsidiary, affiliated and associated
companies, and any employee, officer, director, representative, agent, successor
or assign of any such entity, and all persons acting by, through and under or in
concert with any of them (both in their personal and official capacities), from
any and all claims, demands, actions, causes of action, remedies, suits,
obligations, damages, losses, costs and expenses, of whatever kind or nature,
whether under common law, state law, federal law or otherwise, including without
limitation the Age Discrimination in Employment Act of 1967, as amended, through
the date of this Release Agreement, including without limitation those arising
from or in connection with the terms and conditions of Executive's employment
with Company and any subsidiary, affiliated and associated companies, or the
termination of Executive's employment. This Release is not intended to affect
benefits to which Executive may be entitled under any pension, savings, health,
welfare or other benefit plan in which Executive is a participant.
Executive covenants and agrees not to make or file any claim, demand or
cause of action or seek any remedy of whatever nature, whether under common law,
state law, federal law or otherwise arising from or in connection with the
matters discharged and waived above. Notwithstanding the foregoing, in the event
Executive files a charge or lawsuit under the Age Discrimination in Employment
Act of 1967 ("ADEA") and thereby challenges the validity of the release
described herein, such charge or lawsuit will not be considered a breach of this
provision.
Executive has been advised to consult with an attorney, acknowledges
having had ample opportunity to do so, and fully understands the binding effect
of this Release Agreement. Executive acknowledges that a copy of this Release
Agreement was provided to him on _____________, 20__, for review and
consideration for up to twenty-two (22) days. Executive understands that this
Release may be revoked by him within seven (7) days from the date of execution
of this Release Agreement.
Executive agrees that this Agreement shall be construed under and
governed by the laws of the State of Georgia.
Executive now states that the only consideration for his signing this
Release Agreement is the mutual promises and payment of the sum described above;
that no other promises or agreements of any kind or nature have been made to, or
with, him by Company or its agents to cause him to sign this Release Agreement,
and that Executive fully understands the meaning and intent of this instrument.
WITNESS my hand and seal this ____ day of __________, 20__.
---------------------------
XXXXXXX X. XXXXXX
EXHIBIT B
GEOGRAPHIC TERRITORY
Alabama: Jefferson and Shelby Counties (Birmingham)
Mobile County (Mobile)
Florida: Broward and Dade Counties (Miami-Ft. Lauderdale)
Palm Beach County (West Palm Beach)
Georgia: Xxxxxx, DeKalb, Xxxx and Gwinnett Counties (Atlanta)
Kentucky: Jefferson County (Louisville)
Louisiana: Jefferson and Orleans Parishes (New Orleans)
East Baton Rouge, Ascension and Xxxxxxxxxx Parishes (Baton
Rouge)
Mississippi: Xxxxx, Madison and Xxxxxx Counties (Xxxxxxx)
North Carolina: Mecklenburg County (Charlotte)
Wake County (Raleigh)
South Carolina: Xxxxxxxx, Greenville and Spartanburg Counties (Greenville)
Richland and Lexington Counties (Columbia)
Tennessee: Davidson County (Nashville)
Shelby County (Memphis)
EXHIBIT D
BellSouth Telecommunications, Inc.
BellSouth Enterprises, Inc.
Cingular Wireless LLC
BellSouth Long Distance, Inc.
BellSouth Advertising & Publishing Corporation
X. X. Xxxxx and Company (d/b/a The Xxxxx Company)
