EXHIBIT 10.29
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (herein the "Agreement") is entered into between
Cellco Partnership d/b/a Verizon Wireless and XXXXXX X. XXXXXXXXXXX (herein the
"Executive"), effective January 1, 2004. References to the "Company" herein
shall include Cellco Partnership d/b/a/ Verizon Wireless, any company
controlled by or under common control with Cellco Partnership, and any company
which subsequent to the effective date of this Agreement carries on all or
substantially all of the business of Cellco Partnership and affiliates of
Cellco Partnership.
WHEREAS, the services to be rendered by Executive are, and for the term of
this Agreement will continue to be, of a unique character and of incalculable
value to the Company; and
WHEREAS, one of the purposes of the Company is, through contracts and
other business relationships, to operate a national wireless communications
business, including without limitation, wireless voice and data, paging and
other CMRS businesses; and
WHEREAS, if Executive were to engage in "competitive activities," as
defined below, during the term of this Agreement or in violation of the
restrictions set forth in this Agreement, the Company would suffer irreparable
injury; and
WHEREAS, the success of the Company depends in substantial part on the
competitive advantages afforded by the management and technical skills provided
by Executive; and
WHEREAS, Executive desires to participate in the Verizon Wireless Long
Term Incentive Plan ("LTIP");
NOW, THEREFORE, the parties hereto, acknowledging the mutual consideration
embodied in the terms and conditions of this Agreement and intending to be
legally bound, hereby agrees as follows:
1. Term. Executive agrees to serve the Company, and the Company agrees to
employ Executive, for a term of two years from the effective date of this
Agreement (herein the "Term"). This agreement shall renew automatically for a
new two-year term at the expiration of the Term unless (a) at least ninety days
before the expiration of the Term the Company provides Executive with written
notice of intent not to renew this Agreement at the expiration of the Term, or
(b) this Agreement is terminated pursuant to Sections 4 or 5.
2. Duties. During the Term, Executive shall:
(a) faithfully and diligently perform all such acts and duties and furnish
such services as the Company, its Board of Representatives, its Chief Executive
Officer, its Chief Operating Officer, or his or their designees shall direct,
and perform all acts in the ordinary course of the Company's business
reasonably necessary to the advancement of the Company's best interests;
(b) devote his full time, energy and skill to the business of the Company
and to the promotion of the Company's best interests, except during vacations
and other authorized absences; and
(c) comply with all federal, state and local laws and any applicable
foreign laws, and abide by the Company's code of business conduct and other
policies of the Company while discharging his obligations under this Agreement
or otherwise engaging in conduct, whether personal or business-related, which
may impact the Company's business.
3. Compensation.
(a) The Company shall compensate Executive as set forth below for all
services performed by him, subject to review from time to time in accordance
with the Company's practices for similarly situated executives:
(i) Base salary at the annualized rate of $365,500 effective as of
January 1, 2004. This amount shall be payable in periodic installments in
accordance with the Company's regular payroll practices;
(ii) Short-Term Incentive at a target rate of 60% of base salary, in
accordance with Company's Short-Term Incentive Plan;
(iii) An annual flexible spending allowance of $18,000, paid
periodically;
(iv) Reimbursement for all reasonable expenses incurred in the
performance of Executive's duties hereunder, including but not limited to
travel, accommodation, entertainment, and other similar expenses, in
accordance with the Company's policies and directives from Executive's
superiors;
(v) Participation, if otherwise eligible, in all health insurance,
accident insurance, disability insurance, vacation and other welfare
benefit plans maintained by the Company and provided generally to
similarly situated executives; and
(vi) Such other additional or special compensation, benefits and
perquisites as the Company may generally provide from time to time to
similarly situated executives.
(b) The Company shall provide Executive with additional long-term
incentive grants comparable in value to the value of such grants provided to
similarly situated executives based on market conditions and in accordance with
the LTIP, subject to Board approval. Such grants will be issued not as
compensation for services rendered, but rather as an inducement to Executive to
continue employment with the Company and to enter into this Agreement.
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4. Termination of Executive's Employment by the Company.
(a) Death or Disability. The Executive's employment with the Company will
terminate automatically upon Executive's death, or upon Executive's continuing
disability on the date on which his short-term disability benefits expire if at
that time he remains unable, even with reasonable accommodation, to perform the
essential duties and responsibilities he was performing prior to the
commencement of eligibility for such benefits. Termination of employment due to
disability shall not constitute a bar to Executive's eligibility for long-term
disability benefits if Executive would have qualified for such benefits in the
absence of the termination of his employment.
(b) For Cause. The Company may terminate Executive's employment for Cause,
in writing and without prior notice, upon any of the following reasons:
(i) breach by Executive of any of the covenants he makes or material
obligations he assumes under this Agreement; or
(ii) insubordination or failure to perform job responsibilities with
full-time and good-faith efforts; or
(iii) conviction of, or plea of nolo contendere to, criminal charges
(other than a traffic citation or minor misdemeanor), or conduct which, if
prosecuted, would warrant conviction on such charges under a "beyond a
reasonable doubt" standard of proof; or
(iv) material violation of the Company's Code of Business Conduct or
other policies of the Company, including, by way of example, a violation
of the employer's voucher or expense reimbursement rules; or
(v) conduct which, if it were known by the public, would harm the
reputation of the Company; or
(vi) exercising, using, or discharging the authority, office or
duties conferred upon Executive by the Company other than solely in the
best interests of the Company, including without limitation the execution
of such authority, the use of such office or the discharge of such duties
for the Executive's personal benefit or that of his family, friends or
associates.
(c) Without Cause. The Company may terminate the Executive's employment at
any time without cause. Written notice of intent not to renew this Agreement
shall be deemed termination without cause, but only if Executive remains at
work for the Company through the last day of the Term of this Agreement. In
such case, Executive shall be eligible to receive liquidated damages as set
forth in Section 6(b). In any proceeding conducted to determine whether
Executive's employment was terminated for Cause, if the finder of fact
determines that Executive's employment was terminated other than for Cause,
then his employment shall be deemed to have been terminated Without Cause, and
the remedy shall be limited to liquidated damages as provided in Section 6(b).
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5. Termination by Executive.
(a) Without Good Reason. Executive may terminate his employment at any
time Without Good Reason. Without limiting the meaning of the term "Without
Good Reason," it shall constitute termination of employment Without Good Reason
if Executive refuses to work under a renewal of this Agreement or if the
Executive refuses to sign a successor agreement for an additional term of two
years, provided that such successor agreement does not reduce Executive's then
current base salary or short- or long-term incentive targets.
(b) For Good Reason. Executive may terminate his employment for Good
Reason, but only on 60 days' written notice of intent to resign for Good
Reason. In such case, Executive shall be eligible to receive liquidated damages
on the terms set forth in Section 6(b). Executive shall be deemed to have Good
Reason to terminate his employment if no event has occurred which would
constitute Cause for the Company to terminate his employment, and if any of the
following events has occurred within six months prior to the effective date of
the termination of his employment:
(i) assignment, without written consent of the Executive, to a
position which involves more than a change in reporting structure, but
also results in materially less authority and responsibility than
immediately before such assignment; or
(ii) reduction in Executive's base salary; or
(iii) reduction in Executive's short- or long-term incentive targets
below the targets of similarly situated executives; or
(iv) "Change in Control," which shall mean (1) a sale or transfer of
more than 50% of the Company's assets to an entity other than: (a) Verizon
Communications Inc. ("Verizon") or any affiliate or subsidiary or
successor thereof (collectively, "Verizon Companies") or (b) Vodafone
Group Plc ("Vodafone") or any affiliate or subsidiary or successor thereof
("Vodafone Companies") , (2) a sale of partnership interests such that
Verizon Companies and Vodafone Companies own less than 50% of the
partnership interests in the Company, or (3) a sale of equity interests in
the Company; provided that as a result of (1), (2), or (3), Verizon
Companies or Vodafone Companies cease to have "actual management control"
of the Company; and provided further, that neither (1) nor (2) nor (3)
shall constitute a "Change in Control" if the transaction at issue is an
initial public offering or subsequent offerings or distribution to Verizon
Companies or Vodafone Companies. "Actual management control" shall mean
the possession, direct or indirect, of the power to direct or cause the
direction of the management of the Company as it may be constituted
following the event described in (1), (2), or (3) above (including,
without limitation, the power to appoint a majority of the Board of
Representatives or other comparable governing body of such entity),
whether through the beneficial ownership of voting securities or other
ownership interest, by contract or otherwise, whether the loss of actual
management control is voluntary or involuntary or the result of any
merger, tender offer, stock purchase, other stock acquisition,
consolidation, recapitalization, reverse split, or sale or transfer of
assets. In addition to items (1), (2) or (3) above, within twelve months
following a
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"Change of Control", Executive must have Good Reason to terminate his
employment, as defined in Section 5(b).
(c) Retirement. If during the Term of the Agreement, Executive terminates
employment by reason of Retirement (as that term is defined in the Verizon
Wireless Long Term Incentive Plan and its Award document), and so long as
Executive provides at least 60 days prior notice of such Retirement, Executive
shall not be subject to liquidated damages obligations under Section 11(a).
Executive's obligations under under Sections 7 and 8 shall continue in the
event of Retirement from the Company.
6. Post-Termination Liquidated Damages Payable by the Company.
(a) If the Company terminates Executive's employment for Cause or by
reason of disability or death, or if Executive terminates his employment
Without Good Reason, then the Company shall have no further obligations to
Executive beyond the date of termination of employment, other than to provide
compensation owed for services previously rendered pursuant to Section 3(a);
provided, however, that if the termination of Executive's employment is by
reason of disability or death, then Executive (in the case of disability) or
Executive's executor or administrator (in the case of death) may exercise
Executive's vested long term incentive grants pursuant to the terms of the
long-term incentive plan.
(b) If the Company terminates Executive's employment Without Cause, or if
Executive terminates his employment with Good Reason, the Company shall provide
to Executive, as liquidated damages, (i) an amount equal to 150% of Executive's
annualized base salary and short-term incentive target at the time of
termination, payable in 18 equal monthly installments, subject to required
payroll deductions, and (ii) continued participation in the Company's medical
and dental insurance plans for 18 months, at the Company's expense but subject
to any employee contribution requirements applicable as of Executive's last day
of active employment (as such requirements may thereafter be revised generally
from time to time). Payment of such liquidated damages shall not be deemed
compensation for prior services rendered, but rather shall be deemed a
settlement of the parties' obligations to each other, as provided below. In
addition, Executive's unvested long-term incentive grants shall vest and may be
exercised in accordance with the terms of the long-term incentive plan that
apply to terminations "without cause." Company also shall pay Executive cash in
lieu of accrued but unused vacation days, at a daily rate equal to 1/260th of
Executive's annualized base salary rate.
(c) (i) Liquidated damages under Section 6(b) shall not be payable if the
Executive is in breach of this Agreement at the time of the termination of his
employment.
(ii) Upon Executive's breach of any of his covenants or continuing
obligations under Sections 7 through 10 of this Agreement, Executive's right,
if any, to payment of liquidated damages after the date of such breach shall be
forfeited.
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(d) Executive's right to liquidated damages hereunder shall be conditioned
on his agreeing to and executing, within the time specified by the Company, a
release in such form as reasonably may be required by the Company. The Company
shall have no obligation to pay liquidated damages unless and until such
release is signed. The validity and enforceability of such release shall not be
impaired if, after signing it, Executive's right to continued payment of
liquidated damages is forfeited pursuant to Section 6(c)(ii).
(e) Liquidated damages hereunder shall be in lieu of any right Executive
otherwise may have to receive benefits under any severance or separation pay
plan, program or practice which may otherwise be applicable to him, and he
hereby waives any right to receive any such severance benefits.
7. Prohibition Against Competitive Activities.
(a) Covenant Not to Engage in Competitive Activities. Executive
acknowledges that by virtue of his employment with the Company, he will obtain
knowledge, training, experience and access to the Company's proprietary and
confidential information to such an extent that if he were to work for or
otherwise provide services to a competitor of the Company, that competitor
inevitably would gain an unfair competitive advantage by means of its access to
Executive's knowledge, training, experience and familiarity with the Company.
Therefore, in consideration for (i) the offer of this Agreement for a specific
term, (ii) the right to post-termination liquidated damages on the terms
provided in Section 6, and (iii) the opportunity to participate in the
Company's long-term incentive plan, Executive covenants to the fullest extent
permitted by law that he will not engage in Competitive Activities (as that
term is defined in Section 7(b)) while he remains employed by the Company and
until one year after the date of termination of his employment for any reason
(and, in the case of activities described in Section 7(b)(iii), until two years
after the date of termination of his employment for any reason). Executive
further acknowledges that this 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 Executive undue hardship, and that
the provisions of this Agreement are reasonably necessary and commensurate with
the need to protect the Company and its business interests and property from
irreparable harm. Executive agrees that because of the widespread nature of the
Company's business, breach of this Agreement by engaging in Competitive
Activities anywhere in the United States would irreparably injure the Company
and that, therefore, a more limited geographic restriction is neither feasible
nor appropriate. Executive represents to the Company that Executive's
education, training and experience are such that this covenant not to compete
will not jeopardize or significantly interfere with Executive's ability to
secure other gainful employment.
(b) Competitive Activities Defined. For purposes of this Agreement,
"Competitive Activities" means any or all business activities in the wireless
communications industry in the United States relating to products or services
of the same or similar type as those provided or offered by the Company as of
the effective date of this Agreement. In addition, "Competitive Activities"
also encompasses any or all business activities in the wireless communications
industry in the United States
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relating to products or services of the same or similar type as those provided
or offered by the Company during the term of this Agreement (including products
or services the Company planned to provide or offer in accordance with any
Business Plan approved by the Board of Representatives prior to the termination
of Executive's employment), provided that the Executive had management,
strategic planning, business planning, implementation, operations,
administration, or other responsibility for or involvement with the
communications services, products and/or business. It, however, shall not be
considered Competitive Activity for Executive to accept employment by Verizon
or any affiliate of Verizon or Vodafone or any affiliate of Vodafone provided
that Verizon and Vodafone are not competing with the Company at the time
employment is accepted. Restricted activities include, but are not limited to:
(i) personally working for, owning, managing, operating, controlling
or participating in the ownership, management, operation or control of, or
providing consulting or advisory services to, any business engaged in
Competitive Activities; provided, however, that Executive's purchase or
holding of securities of a publicly-traded company, for investment
purposes, shall not be prohibited so long as Executive's equity interest
in any such company is less than one percent;
(ii) maintaining any appreciable financial interest in any business
engaged in Competitive Activities;
(iii) soliciting, inducing or influencing employees of the Company or
former employees who have worked for the Company within the preceding six
months to engage in Competitive Activities;
(iv) interfering with the relationship of the Employer with any of
its customers, agents, representatives, suppliers or vendors under
contract; and
(v) engaging in or planning to engage in Competitive Activities while
still employed by the Company.
(c) Forfeiture of Benefits. Executive acknowledges that any violation of
any of the covenants of this Section 7 may result in the forfeiture of rights
to benefits or compensation under one or more benefit or compensation plans of
the Company which contain such forfeiture provisions, and will result in his
obligation to pay liquidated damages as provided in Section 11.
8. Prohibition Against Disclosure of Proprietary
Information; Intellectual Property Rights.
(a) Duty to Preserve Confidentiality. Executive acknowledges that he will
be privy to strategic and sensitive business information, and that he will have
access to confidential and proprietary information of the Company. Therefore,
during the course of Executive's employment and after such employment ends for
any reason, (i) Executive will treat with utmost confidentiality all such
strategic and sensitive business information and all such confidential and
proprietary information (including, without limitation, "Proprietary
Information" as that term is defined in Section 8(b)
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below), and (ii) except as required to conduct the business of the Company or
as authorized in writing by the Company, Executive will not publish, disclose
or use such information or authorize anyone else to publish, disclose or use
it. Executive acknowledges that, in addition to his duties under this
Agreement, he has common law and statutory duties as an employee to preserve
the confidentiality of the Company's trade secrets, and will continue to have
such duties after his employment terminates for any reason.
(b) Definition of Proprietary Information. "Proprietary information"
includes, but is not limited to, information in the possession or control of
the Company that has not been fully disclosed in a writing which has been
generally circulated to the public at large, and which gives the Company an
opportunity to obtain or maintain advantages over its current and potential
competitions. "Proprietary information" includes, without limitation,
(i) marketing plans, strategic or tactical business plans, product
plans and designs, undisclosed financial data, agreements with third
parties, technical information, computer software or other apparatus
programs, databases, budgets and projections, whether in draft or final
form:
(ii) ideas, processes, methods, techniques, systems, patented or
copyrighted information, models, devices, programs, computer software or
related information and documentation;
(iii) documents relating to regulatory matters and correspondence
with governmental entities, including classified National Security
information;
(iv) pricing and cost data;
(v) reports and analyses of business prospects;
(vi) business transactions which are contemplated or planned;
(vii) research data;
(viii) employee information and data, including knowledge of skills,
abilities, performance and compensation;
(ix) information relating to specific users and purchasers of the
Company's products or services or to such users and purchasers generally,
such as customer names, customer contacts, terms of customer contracts,
customer proposals, types, locations, and quantities of service, calling
patterns and billing information; and
(x) other confidential matters pertaining to or known by the Company,
including information that is proprietary to others which the Company is
bound to protect, such as vendor or customer proprietary information or
information provided in conjunction with non-disclosure or confidentiality
agreements with third parties.
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(c) Obligation to Return Company Property. Upon the termination of
Executive's employment for any reason, and prior to his last day of active
employment, Executive shall return to the Company all property of the Company
in his possession, custody and control, including without limitation, the
originals and all copies of all records, papers, programs, computer software,
documents and other materials which contain Proprietary Information, as defined
in Section 8(b), and all computer and other equipment of the Company.
(d) Intellectual Property.
(i) Executive will promptly disclose to the Company, in confidence,
all inventions, discoveries, designs, improvements, technical information,
ideas, databases, computer software or other apparatus programs, related
documentation, and other works of original authorship, whether or not
patentable, copyrightable or susceptible to other forms of protection,
which he makes, creates, develops, writes or conceives during the course
of his employment by the Company (hereinafter, "Innovations").
(ii) Executive hereby assigns and grants to the Company all rights,
title and interest in and to all Innovations. On request by the Company,
Executive will execute a specific assignment to the Company of all rights,
title and interest to any particular Innovation or group of Innovations,
and will execute all applications for patent, copyright or other forms of
protection for such Innovations in the United States and in other
countries.
(iii) An Innovation will be deemed not to have been made in the
course of Executive's employment by the Company if it (1) was developed on
his own time and (2) no equipment, supplies, facilities or trade secret
information of the Company were used in developing it. However, even if an
Innovation was developed entirely on Executive's own time, and even if no
equipment, supplies, facilities or trade secret information of the Company
were used in developing it, an Innovation shall be deemed to have been
made in the course of Executive's employment if at the time of its
conception or reduction to practice it related to the Company's business
or to the Company's actual or demonstrably anticipated research or
development, or if it resulted from any work that Executive performed for
the Company.
(iv) During the course of Executive's employment and after such
employment ends for any reason, (1) Executive will treat with utmost
confidentiality all Innovations and all private, trade secret and
proprietary information concerning them, and (2) except as required by the
conduct of the business of the Company or as authorized in writing by the
Company, Executive will not publish, disclose or use such information or
authorize anyone else to publish, disclose or use it. When Executive's
employment terminates, he will relinquish all documents, equipment and
records containing such information to the Company, regardless of its
form.
(e) Forfeiture of Benefits. Executive acknowledges that violation of any
of the prohibitions or covenants of this Section 8 may result in the forfeiture
of rights to
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benefits or compensation under one or more benefit or compensation plans of the
Company which contain such forfeiture provisions, and will result in his
obligation to pay liquidated damages as provided in Section 11.
9. Confidentiality. Executive agrees not to disclose or discuss, other than
with his legal counsel, personal tax or financial advisors, or spouse, either
the existence or any details of this Agreement. Executive will use his best
efforts to ensure that any such legal counsel, personal tax or financial
advisor, or spouse will not disclose or discuss the existence or any details of
this Agreement with any other person. This Agreement shall not prohibit the
Executive from disclosing to any person that he has agreed not to compete with
the Company and that he has legal duties not to disclose the Company's
proprietary information. Executive is hereby authorized to reveal to a
prospective employer or prospective client or business associate the precise
terms of Sections 7, 8(a) and (b), 11(b) and 12 hereof, but in so doing,
Executive shall not reveal any other parts of this Agreement.
10. Duty to Disclose Acceptance of Offers of Employment by Other Employers.
Executive acknowledges that the Company has an ongoing interest in knowing
whether any of its employees or former employees who have, or had, access to
proprietary or confidential information intend to provide services as an
employee, consultant or in any other capacity to an entity which the Company
considers to be a competitor or potential competitor. Accordingly, during the
period of Executive's employment by the Company, Executive shall give written
notice to the Company of his intention to accept employment with any employer
other than the Company, not later than the date on which he gives his written
or oral acceptance of an offer of employment, or offer of compensation in
exchange for advice, information or consulting services. That notice shall
state the name of the offering entity, the role or position accepted and a
brief summary of the responsibilities, the geographic location and scope of
that role or position.
11. The Company's Remedies for Breach of Agreement
(a) Liquidated Damages Payable by Executive upon Resignation. Executive
recognizes that his services to the Company are of the highest value to the
Company, that his services cannot be easily replaced in the event he terminates
his employment prior to the end of the Term, and that the loss of Executive's
services would cause damages to the Company's operations which are substantial
but not readily calculable. Therefore, Executive warrants that if he terminates
his employment before expiration of the Term other than for Good Reason, he
shall pay the Company as liquidated damages an amount equal to 100% of the
Executive's pre-tax gain from the exercise (during the six month period
preceding termination) of any long-term incentive grants issued to Executive by
the Company. Such sum shall be payable in a single lump amount which shall be
immediately due and payable upon written demand by the Company following the
termination of Executive's employment. In addition, Executive's right to
exercise any long-term incentive grants issued to Executive by the Company
which have not yet been exercised shall be extinguished as of the last day of
his active employment. Further, in the event that Executive resigns during the
term of this Agreement to thereafter engage in Competitive Activities as set
forth in Section 7,
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Executive also shall pay the Company the costs it incurs in recruiting a
replacement for Executive in a single lump sum which shall be payable within
thirty days after the Company notifies Executive as to the amount of such
costs. This replacement cost obligation is in addition to any other amounts for
which Executive may be liable under Section 11(b).
(b) Liquidated Damages for Breach of Covenants Under Sections 7 or 8.
Executive acknowledges that his breach of any of his covenants under Sections 7
or 8 of this Agreement would cause substantial damages to the Company that are
not readily calculable. Accordingly, in the event of such a breach, Executive
agrees to pay to the Company as liquidated damages an amount equal to the sum
of his annualized base salary and short-term incentive target in effect at the
time of the breach. In addition, (i) as provided in Section 6(d), Executive's
right to any payments under Section 6(b) which have not yet been made shall be
extinguished and no further such payments shall be due, (ii) he shall return to
the Company all payments under Section 6(b) which theretofore shall have been
provided to him (except that Executive shall retain $100 of such sum as
consideration for the release executed pursuant to Section 6(d)), (iii) all of
his grants under any long-term incentive plan which have not yet vested or
which have vested but not yet been exercised shall be extinguished immediately,
(iv) Executive shall owe to the Company all pre-tax gain derived from the
exercise of any long-term incentive grants during the six months preceding the
breach; and (v) Executive also shall pay the Company the costs it incurs in
recruiting a replacement for Executive. Executive promptly shall pay to the
Company the sum of all amounts to be paid pursuant to this Section 11(b), in a
single lump amount which shall be due immediately and payable on demand
following the breach.
(c) Injunctive Relief. Executive acknowledges that if he breaches his
covenants under Sections 7 and 8 of this Agreement, competitors of the Company
will gain the value of the Executive's services to the detriment of the
Company, and that the Company thereby will suffer irreparable injury. In the
event of a breach of any of his covenants under Sections 7 or 8, whether or not
Executive is still employed by the Company at the time of such breach, to the
extent permitted by law, Company shall be entitled, in addition to causing the
Executive to forfeit benefits as described in Sections 7(c) and 8(e), and in
addition to liquidated damages payable under Section 11(b) and any other
remedies available at law, to injunctive relief to restrain further breach of
such commitments by the Executive or by any person acting for or with him in
any capacity whatsoever.
12. Arbitration. In the event that (a) Executive believes that the Company has
breached any provision of this Agreement or otherwise has violated his rights
in connection with his employment by the Company, the manner in which he was
treated while so employed or the termination of his employment, or if he
believes that the Company violated his rights under any common law theory of
liability or any applicable federal, state or local law, statute, regulation or
ordinance (including without limitation 42 U.S.C. Section 1981, Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act and any
other state or federal statute that pertains to employee rights or
discrimination in employment), or (b) the Company believes that Executive has
breached any provision of this Agreement or otherwise has violated its rights
in
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connection with his employment by the Company, the dispute shall be submitted
to the American Arbitration Association in New York or any other state mutually
agreeable to all parties, for arbitration pursuant to its rules and procedures
for resolution of employment disputes. The arbitrator shall include in the
award the prevailing party's costs and expenses (including expert witness fees)
incurred in connection with the proceedings. The decision of the arbitrator
shall be final and binding. Executive understands and agrees that this
provision constitutes a waiver of his right to initiate a proceeding before an
administrative tribunal seeking relief for himself and to xxx in any court of
law or equity, and that the sole forum available to him for resolution of
disputes between himself and the Company is arbitration as provided herein. The
parties intend that the arbitration procedure to which they hereby agree shall
be the exclusive means for resolving all disputes between them, and their
agreement in this regard shall be interpreted as broadly and inclusively as
reason and law permits to realize that intent; provided, however, that nothing
herein shall be considered a waiver of either party's right to seek a temporary
restraining order or injunction from a court for purposes of preserving the
status quo or preventing irreparable harm pending decision by an arbitrator.
13. Miscellaneous Provisions.
(a) Assignment by the Company. The Company expressly reserves the right to
assign this Agreement. If and when the Executive transfers from the Company to
another employer pursuant to such assignment, this Agreement shall be deemed to
be assigned to the transferee employer in lieu of the Company. This Agreement
may not be assigned by the Executive.
(b) Waiver. The waiver by any Company of a breach by the Executive of any
provision of this Agreement shall not be construed as a waiver of any
subsequent breach by him.
(c) Executive's Warranty. Executive warrants and represents that his
acceptance of employment by the Company on the terms offered will not breach
any contractual or other obligation he has to any third party, and that he will
neither bring to the Company confidential or proprietary information or
documents of any third party (other than a third party contributing assets to
the Company), including any former employer, nor use or disclose any
confidential or proprietary information of any third party without such third
party's written authorization.
(d) Severability. If any clause, phrase or provision of this Agreement
(including, without limitation, Section 12), or the application thereof to any
person or circumstance, shall be deemed invalid or unenforceable by any court
of competent jurisdiction, such event shall not affect or render invalid or
unenforceable the remainder of this Agreement and shall not affect the
application of any clause, phrase or provision hereof to other persons or
circumstances. Further, if an arbitrator or court of competent jurisdiction
determines that the geographic scope, duration or any other features of the
covenants and commitments set forth in Sections 7 and 8 are not enforceable as
drafted, this Agreement shall hereby be deemed to be amended automatically to
provide the maximum enforcement thereof permitted by law.
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(e) Gender. All pronouns used in this Agreement are in the masculine
gender solely for purposes of grammatical convenience, and it is the parties'
intent that all pronouns used herein are intended to comprehend both genders as
warranted by context or by the gender of the Executive.
(f) Governing Law. The parties acknowledge that the services to be
performed by Executive pursuant to this Agreement will be rendered in a number
of different states, and that the Company has a special interest in having its
agreements with employees in different places construed according to the same
law because it conducts operations throughout the entire United States.
Accordingly, this Agreement shall be construed and enforced in accordance with
the laws of the State of New York, headquarters of Verizon Communications, its
managing partner, without regard to choice of law principles.
(g) Notices. Whenever this Agreement requires or permits notice to be
given to the Company, the notice should be given in writing to the Chief
Executive Officer of the Company, or to such other person as the Company may
subsequently identify in writing to Executive.
(h) Attachment One. The terms and conditions set forth in Attachment One
are hereby incorporated by reference into this Agreement.
(i) Entire Agreement. Except for the terms and conditions of the
compensation and benefit plans applicable to Executive (as such plans may be
amended by the Company from time to time), this Agreement (including the terms
set forth in Attachment One) sets forth the entire understanding of the parties
and supersedes all prior agreements, arrangements, and communications, whether
written or oral, pertaining to the subject matter hereof, including without
limitation any employment agreement previously entered into between Executive
and the Company. This Agreement shall not negate (i) any benefits previously
earned or rights granted under any long-term incentive plan; (ii) any other
benefits maintained by any other entity that are not duplicative in nature of
any benefits provided under this Agreement; or (iii) any obligations that the
Executive may have under any non-compete, proprietary information or
intellectual property agreement with any entity that is contributing assets to
the Company or any affiliate of such entity. Any such rights, benefits, or
obligations shall be determined in accordance with the terms of such agreements
or plans. This Agreement shall not be modified or amended except by written
agreement of the Company, the Executive, and the Company which then employs
him. Executive has been advised to consult with an attorney regarding this
Agreement, acknowledges having had ample opportunity to do so, and fully
understands the binding effect of this Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby execute this Agreement.
Cellco Partnership d/b/a Verizon
Wireless
12/11/03 By: /s/ Xxxxxx X. Xxxxxx
------------------- ---------------------------------
Date Chief Executive Officer
12/19/03 /s/ Xxxxxx X. Xxxxxxxxxxx
------------------- ---------------------------------
Date Executive
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Attachment One
A. Executive shall be provided with financial counseling services of the AYCO
Company (as previously provided to Executive during his employment with
Verizon Communications Inc.) through tax year 2004, which services will
include tax preparation assistance in 2005 for the 2004 tax year.
B. The Company will assume the obligations of Executive's July 19, 2000
Relocation Agreement with Verizon Communications Inc. for the remaining
term of that Relocation Agreement.
C. With regard to any unexercised Verizon Communications stock options or
performance stock units held by Executive, such stock options or
performance stock units shall continue to vest in accordance with their
respective Grant provisions and the terms of the applicable Verizon
Communications Inc. incentive plan(s).
D. Executive shall remain a participant in Verizon Communication Inc.'s
Executive Life Insurance Plan (XXXXX). If employment with Verizon Wireless
or Verizon Communications is terminated for reasons other than death,
disability or retirement, participation in Verizon Communication Inc.'s
Executive Life Insurance Plan shall cease. Executive and Company agree
that Executive shall not be eligible to participate in the basic and
supplemental life insurance plans offered by Verizon Wireless and Section
3(a) of the Agreement is accordingly modified.
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