AGREEMENT
This Agreement, dated February 15, 2001, is made by and between ALLTEL
Corporation, a Delaware corporation (as hereinafter defined, the "Corporation"),
and Xxxxx X. X'Xxxx (as hereinafter defined, the "Executive").
WHEREAS, the Board of Directors of the Corporation (as hereinafter
defined, the "Board") recognizes that the possibility of a Change in Control (as
hereinafter defined) of the Corporation exists and that such possibility, and
the uncertainty it may cause, may result in the departure or distraction of key
management employees of the Corporation or of a Subsidiary to the detriment of
the Corporation and its stockholders; and
WHEREAS, the Executive is a key management employee of the Corporation
or of a Subsidiary; and
WHEREAS, the Board has determined that the Corporation should encourage
the continued employment of the Executive by the Corporation or a Subsidiary and
the continued dedication of the Executive to his assigned duties without
distraction as a result of the circumstances arising from the possibility of a
Change in Control;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Corporation and the Executive hereby agree as
follows:
1. Defined Terms. For purposes of this Agreement, the following terms
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shall have the meanings indicated below:
(A) "Board" shall mean the Board of Directors of the Corporation,
as constituted from time to time.
(B) "Cause" for termination by the Corporation of the Executive's
employment shall mean (i) the willful failure by the Executive substantially to
perform the Executive's duties with the Corporation or a Subsidiary, other than
any failure resulting from the Executive's incapacity due to physical or mental
illness or any actual or anticipated failure after the issuance of a Notice of
Termination for Good Reason by the Executive in accordance with paragraph (A) of
Section 6, that continues for at least 30 days after the Board delivers to the
Executive a written demand for performance that identifies specifically and in
detail the manner in which the Board believes that the Executive willfully has
failed substantially to perform the Executive's duties or (ii) the willful
engaging by the Executive in misconduct that is demonstrably and materially
injurious to the Corporation or any Subsidiary, monetarily or otherwise. For
purposes of this definition, no act, or failure to act, on the Executive's part
shall be deemed "willful" unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that the Executive's act, or
failure to act, was in the best interest of the Corporation and its
Subsidiaries:
(C) A "Change in Control" shall mean, if subsequent to the date of
this Agreement:
(i) Any "person," as defined in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than
the Corporation, any of its subsidiaries, or any employee benefit plan
maintained by the Corporation or any of its subsidiaries, becomes the
"beneficial owner" (as defined in Rule l3d-3 under the Exchange Act) of (A) l5%
or more, but no greater than 50%, of the outstanding voting capital stock of the
Corporation, unless prior thereto, the Continuing Directors approve the
transaction that results in the person becoming the beneficial owner of 15% or
more, but no greater than 50%, of the outstanding voting capital stock of the
Corporation or (B) more than 50% of the outstanding voting capital stock of the
Corporation, regardless whether the transaction or event by which the foregoing
50% level is exceeded is approved by the Continuing Directors;
(ii) At any time Continuing Directors no longer constitute a
majority of the directors of the Corporation; or
(iii) A record date is fixed for determining stockholders
entitled to vote upon (A) a merger or consolidation of the Corporation,
statutory share exchange, or other similar transaction with another corporation,
partnership, or other entity or enterprise in which either the Corporation is
not the surviving or continuing corporation or shares of common stock of the
Corporation are to be converted into or exchanged for cash, securities other
than common stock of the Corporation, or other property, (B) a sale or
disposition of all or substantially all of the assets of the Corporation, or (C)
the dissolution of the Corporation; or
(iv) The Corporation enters into an agreement with any
Person, the consummation of which would result in the occurrence of an event
described in clause (i), (ii) or (iii) above of this paragraph (C)
(D) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(E) "Continuing Directors" means directors who were directors of
the Corporation at the beginning of the 24-month period ending on the date the
determination is made or whose election, or nomination for election by the
Corporation's stockholders, was approved by at least a majority of the directors
who are in office at the time of the election or nomination and who either (i)
were directors at the beginning of the period, or (ii) were elected, or
nominated for election, by at least a majority of the directors who were in
office at the time of the election or nomination and were directors at the
beginning of the period.
(F) "Corporation" shall mean ALLTEL Corporation and any successor
to its business or assets, by operation of law or otherwise.
(G) "Date of Termination" shall have the meaning stated in
paragraph (B) of Section 6 hereof.
(H) "Disability" shall be deemed the reason for the termination by
the Corporation of the Executive's employment, if, as a result of the
Executive's incapacity due to physical or mental illness, the Executive shall
have been absent from the full-time performance of the Executive's duties with
the Corporation or a Subsidiary for a period of six consecutive months, the
Corporation shall have given the Executive a Notice of Termination for
Disability, and, within 20 business days after the Notice of Termination is
given, the Executive shall not have returned to the full-time performance of the
Executive's duties.
(I) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(J) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence, without the Executive's
express written consent, of any one of the following:
(i) the assignment to the Executive of any duties
inconsistent with the Executive's status as an executive officer of the
Corporation or of a Subsidiary or a substantial adverse alteration in the nature
or status of the Executive's responsibilities from those in effect immediately
prior to the Change in Control;
(ii) a reduction by the Corporation in the Executive's annual
base salary to any amount less than the Executive's annual base salary as in
effect immediately prior to the Change in Control;
(iii) the relocation of the principal executive offices of the
Corporation or of a Subsidiary, as the case may be, to a location more than 35
miles from the location of such offices immediately prior to the Change in
Control or the Corporation's requiring the Executive to be based anywhere other
than the principal executive offices of the Corporation or of a Subsidiary as
the case may be, except for required business travel to an extent substantially
consistent with the Executive's business travel obligations immediately prior to
the Change in Control;
(iv) the failure by the Corporation to pay to the Executive
any portion of the Executive's current compensation, or to pay to the Executive
any deferred compensation under any deferred compensation program of the
Corporation, within five days after the date the compensation is due or to pay
or reimburse the Executive for any expenses incurred by him for required
business travel;
(v) the failure by the Corporation to continue in effect any
compensation plan in which the Executive participates immediately prior to the
Change in Control that is material to the Executive's total compensation,
including but not limited to, stock option, restricted stock, stock appreciation
right, incentive compensation, bonus, and other plans, unless an equitable
alternative arrangement embodied in an ongoing substitute or alternative plan
has been made, or the failure by the Corporation to continue the Executive's
participation therein (or in a substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of compensation provided
and the level of the Executive's participation relative to other participants,
than existed immediately prior to the Change in Control;
(vi) the failure by the Corporation to continue to provide
the Executive with benefits substantially similar to those enjoyed by the
Executive under any of the Corporation's pension, profit-sharing, life
insurance, medical, health and accident, disability, or other employee benefit
plans in which the Executive was participating immediately prior to the Change
in Control; the failure by the Corporation to continue to provide the Executive
any material fringe benefit or perquisite enjoyed by the Executive immediately
prior to the Change in Control; or the failure by the Corporation to provide the
Executive with the number of paid vacation days to which the Executive is
entitled in accordance with the Corporation's normal vacation policy in effect
immediately prior to the Change in Control; or
(vii) any purported termination by the Corporation of the
Executive's employment that is not effected in accordance with a Notice of
Termination satisfying the requirements of paragraph (A) of Section 6 hereof.
(K) "Notice of Termination" shall have the meaning stated in
paragraph (A) of Section 6 hereof.
(L) "Payment Trigger" shall mean the occurrence of a Change in
Control during the term of this Agreement coincident with or followed (i) at any
time before the end of the 12th month immediately following the month in which
the Change in Control occurred, by the termination of the Executive's employment
with the Corporation or a Subsidiary for any reason other than (A) by the
Executive without Good Reason, (B) by the Corporation as a result of the
Disability of the Executive or with Cause or, (C) as a result of the death of
the Executive or (ii) in the event the Executive remains continuously employed
by the Corporation or a Subsidiary until the end of the 12th month immediately
following the month in which the Change in Control occurred, the termination of
the Executive's employment with the Corporation or a Subsidiary, at any time
during the three month period immediately following the expiration of such
12-month period, for any reason other than (A) by the Corporation as a result of
the Disability of the Executive or (B) as a result of the death of the
Executive.
(M) "Person" shall have the meaning given in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended from time to time, as modified
and used in Sections 13(d) and 14(d) thereof; except that, a Person shall not
include (i) the Corporation or any Subsidiary, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Corporation or any
Subsidiary, or (iii) an underwriter temporarily holding securities pursuant to
an offering of such securities.
(N) "Subsidiary" shall mean any corporation or other entity or
enterprise, whether incorporated or unincorporated, of which at least a majority
of the securities or other interests having by their terms ordinary voting power
to elect a majority of the board of directors or others serving similar
functions with respect to such corporation or other entity or enterprise is
owned by the Corporation or other entity or enterprise of which the Corporation
directly or indirectly owns securities or other interests having all the voting
power.
2. Term of Agreement. This Agreement shall become effective on the date
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hereof and, subject to the second sentence of this Section 2, shall continue in
effect until the earliest of (i) a Date of Termination in accordance with
Section 6 or the death of the Executive shall have occurred prior to a Change in
Control, (ii) if a Payment Trigger shall have occurred during the term of this
Agreement, the performance by the Corporation of all its obligations, and the
satisfaction by the Corporation of all its obligations and liabilities, under
this Agreement, (iii) the ten year anniversary of the date of this Agreement if,
as of that ten year anniversary, a Change in Control shall not have occurred and
be continuing, or (iv) in the event, as of the ten year anniversary of the date
of this Agreement, a Change in Control shall have occurred and be continuing,
either the expiration of such period thereafter within which a Payment Trigger
does not or can not occur or the ensuing occurrence of a Payment Trigger and the
performance by the Corporation of all of its obligations and liabilities under
this Agreement. Any Change in Control during the term of this Agreement that for
any reason ceases to constitute a Change in Control or is not followed by a
Payment Trigger shall not effect a termination or lapse of this Agreement. Any
transfer of the Executive's employment from the Corporation to a Subsidiary,
from a Subsidiary to the Corporation, or from one Subsidiary to another
Subsidiary shall not constitute a termination of the Executive's employment for
purposes of this Agreement.
3. General Provisions.
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(A) The Corporation hereby represents and warrants to the Executive
as follows: The execution and delivery of this Agreement and the performance by
the Corporation of the actions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Corporation. This Agreement is
a legal, valid and legally binding obligation of the Corporation enforceable in
accordance with its terms. Neither the execution or delivery of this Agreement
nor the consummation by the Corporation of the actions contemplated hereby (i)
will violate any provision of the certificate of incorporation or bylaws (or
other charter documents) of the Corporation, (ii) will violate or be in conflict
with any applicable law or any judgment, decree, injunction or order of any
court or governmental agency or authority, or (iii) will violate or conflict
with or constitute a default (or an event of which, with notice or lapse of time
or both, would constitute a default) under or will result in the termination of,
accelerate the performance required by, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the assets or properties of
the Corporation under, any term or provision of the certificate of incorporation
or bylaws (or other charter documents) of the Corporation or of any contract,
commitment, understanding, arrangement, agreement or restriction of any kind or
character to which the Corporation is a party or by which the Corporation or any
of its properties or assets may be bound or affected.
(B) No amount or benefit shall be payable under this Agreement
unless there shall have occurred a Payment Trigger during the term of this
Agreement. In no event shall payments in accordance with this Agreement be made
in respect of more than one Payment Trigger.
(C) This Agreement shall not be construed as creating an
express or implied contract of employment and, except as otherwise agreed in
writing between the Executive and the Corporation, the Executive shall not have
any right to be retained in the employ of the Corporation or of a Subsidiary.
Notwithstanding the immediately preceding sentence or any other provision of
this Agreement, no purported termination of the Executive's employment that is
not effected in accordance with a Notice of Termination satisfying paragraph (A)
of Section 6 shall be effective for purposes of this Agreement. The Executive's
right, following the occurrence of a Change in Control, to terminate his
employment under this Agreement for Good Reason shall not be affected by the
Executive's Disability or incapacity. The Executive's continued employment shall
not constitute consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason under this Agreement.
4. Payments Due Upon a Payment Trigger.
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(A) The Corporation shall pay to the Executive the payments
described in this Section 4 upon the occurrence of a Payment Trigger during the
term of this Agreement.
(B) Upon the occurrence of a Payment Trigger during the term of
this Agreement, the Corporation shall pay to the Executive a lump sum payment,
in cash, equal to the product of:
(i) three multiplied by
(ii) the sum of --
(a) the higher of the Executive's annual base salary in
effect immediately prior to the occurrence of the Change in
Control or the Executive's annual base salary in effect
immediately prior to the Payment Trigger, plus
(b) the higher of the aggregate maximum amounts payable
to the Executive pursuant to all incentive compensation plans
for the fiscal year or other measuring period commencing
coincident with or most recently prior to the date on which
the Change in Control occurs or the aggregate maximum amounts
payable to the Executive pursuant to all incentive
compensation plans for the fiscal year or other measuring
period commencing coincident with or most recently prior to
the date on which the Payment Trigger occurs, in each case,
assuming that the Executive were continuously employed by the
Corporation or a Subsidiary on the terms and conditions,
including, without limitation, the terms of the incentive
plans, in effect immediately prior to the Change in Control or
Payment Trigger, whichever applies, until the last day of that
fiscal year or other measuring period.
The amount determined under the foregoing provisions of this paragraph (B) shall
be reduced by any cash severance benefit otherwise paid to the Executive under
any applicable severance plan or other severance arrangement. For purposes of
this paragraph (B), amounts payable to the Executive pursuant to an incentive
compensation plan for the fiscal year or other measuring period commencing
coincident with or most recently prior to the date on which the Change of
Control or Payment Trigger, as applicable, occurs (the "applicable year/period")
shall not include amounts attributable to a fiscal year or other measuring
period that commenced prior to the applicable year/period and that become
payable during the applicable year/period. For purposes of this paragraph (B),
incentive compensation plans shall include, without limitation, the ALLTEL
Corporation Performance Incentive Compensation Plan as in effect from time to
time, the ALLTEL Corporation Long-Term Performance Incentive Compensation Plan
as in effect from time to time, and any incentive bonus plan or arrangement that
provides for payment of cash compensation, and shall exclude, without
limitation, the ALLTEL Corporation Executive Deferred Compensation Plan as in
effect from time to time, any plan qualified or intended to be qualified under
Section 401(a) of the Code and any plan supplementary thereto, executive fringe
benefits, and any plan or arrangement under which stock, stock options, stock
appreciation rights, restricted stock or similar options, stock, or rights are
issued.
(C) Notwithstanding any provision of any incentive compensation
plan, including, without limitation, any provision of any incentive plan
requiring continued employment after the completed fiscal year or other
measuring period, the Corporation shall pay to the Executive a lump sum amount,
in cash, equal to the amount of any incentive compensation that has been
allocated or awarded to the Executive for a completed fiscal year or other
measuring period preceding the occurrence of a Payment Trigger under any
incentive compensation plan but has not yet been paid to the Executive.
(D) The payments provided for in paragraphs (B) and (C) of this
Section 4 shall be made not later than the fifth day following the occurrence of
a Payment Trigger, unless the amounts of such payments cannot be finally
determined on or before that day, in which case, the Corporation shall pay to
the Executive on that day an estimate, as reasonably determined in good faith by
the Corporation, of the minimum amount of the payments to which the Executive is
clearly entitled and shall pay the remainder of the payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as
the amount thereof can be determined but in no event later than the thirtieth
day after the occurrence of a Payment Trigger. In the event the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
the excess shall constitute a loan by the Corporation to the Executive, payable
on the fifth business day after demand by the Corporation (together with
interest at the rate provided in Section l274(b)(2)(B) of the Code). At the time
that payments are made under this Section 4, the Corporation shall provide the
Executive with a written statement setting forth the manner in which the
payments were calculated and the basis for the calculations including, without
limitation, any opinions or other advice the Corporation has received from
outside counsel, auditors or consultants (and any opinions or advice that are in
writing shall be attached to the statement).
5. Gross-Up Payments.
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(A) This Section 5 shall apply if a Payment Trigger shall have
occurred during the term of this Agreement.
(B) In the event it shall be determined that any payment or
distribution by the Corporation or other amount with respect to the Corporation
to or for the benefit of the Executive, whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
5 (a "Payment"), is (or will be) subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are (or will be) incurred by the
Executive with respect to the excise tax imposed by Section 4999 of the Code
with respect to the Corporation (the excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), the
Executive shall be entitled to receive an additional cash payment (a "Gross-Up
Payment") from the Corporation in an amount equal to the sum of the Excise Tax
and an amount sufficient to pay the cumulative Excise Tax and all cumulative
income taxes (including any interest and penalties imposed with respect to such
taxes) relating to the Gross-Up Payment so that the net amount retained by the
Executive is equal to all payments received pursuant to the terms of this
Agreement or otherwise less income taxes (but not reduced by the Excise Tax).
(C) Subject to the provisions of paragraph (D) of this
Section 5, all determinations required to be made under this Section 5,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at the
determination, shall be made by a nationally recognized certified public
accounting firm designated by the Executive (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Corporation and the
Executive within 30 days after the receipt of notice from the Executive that
there has been a Payment, or such earlier time as is requested by the
Corporation. In the event that at any time relevant to this Agreement the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group or Person effecting the Change in Control, the Executive shall appoint
another nationally recognized certified public accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by the Corporation. Any Gross-Up Payment, as
determined in accordance with this Section 5, shall be paid by the Corporation
to the Executive within five days after the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall so indicate to the Executive in writing. Any
determination by the Accounting Firm shall be binding upon the Corporation and
the Executive. As a result of uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm, it is
possible that Gross-Up Payments that the Corporation should have made will not
have been made (an "Underpayment"), consistent with the calculations required to
be made hereunder. In the event the Corporation exhausts its remedies in
accordance with paragraph (D) of this Section 5 and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of Underpayment that has occurred and the Underpayment
shall be promptly paid by the Corporation to or for the benefit of the
Executive.
(D) The Executive shall notify the Corporation in writing of
any claim by the Internal Revenue Service that, if successful, would require a
Gross-Up Payment (that has not already been paid by the Corporation). The
notification shall be given as soon as practicable but no later than ten
business days after the Executive is informed in writing of the claim and shall
apprize the Corporation of the nature of the claim and the date on which the
claim is requested to be paid. The Executive shall not pay the claim prior to
the expiration of the 30-day period following the date on which the Executive
gives notice to the Corporation or any shorter period ending on the date that
any payment of taxes with respect to the claim is due. If the Corporation
notifies the Executive in writing prior to the expiration of the 30-day period
that it desires to contest the claim, the Executive shall:
(i) give the Corporation any information reasonably requested
by the Corporation relating to the claim;
(ii) take any action in connection with contesting the claim
as the Corporation shall reasonably request in writing from time
to time, including, without limitation, accepting legal
representation with respect to the claim by an attorney reasonably
selected by the Corporation;
(iii)cooperate with the Corporation in good faith in order
effectively to contest the claim; and
(iv) permit the Corporation to participate in any proceedings
relating to the claim.
The Corporation shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with the contest and
shall indemnify and hold the Executive harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of the representation and payment of costs and expenses.
Without limitation of the foregoing provisions of this Section 5, the
Corporation shall control all proceedings taken in connection with the contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings, and conferences with the taxing authority in
respect of the claim and may, at its sole option, either direct the Executive to
pay the tax claimed and xxx for a refund or contest the claim in any permissible
manner, and the Executive agrees to prosecute the contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Corporation shall determine. If the
Corporation directs the Executive to pay the claim and xxx for a refund, the
Corporation shall advance the amount of the payment to the Executive, on an
interest-free basis, and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to the advance or with
respect to any imputed income with respect to the advance; and any extension of
the statute of limitations relating to payment of taxes for the taxable year of
the Executive with respect to which the contested amount is claimed to be due
shall be limited solely to the contested amount. The Corporation's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(E) If, after the receipt by the Executive of an amount
advanced by the Corporation pursuant to paragraph (D) of this Section 5, the
Executive becomes entitled to receive any refund with respect to the claim, the
Executive shall, subject to the Corporation's compliance with the requirements
of paragraph (D) of this Section 5, promptly pay to the Corporation the amount
of the refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Corporation pursuant to paragraph (D) of this Section 5, a
determination is made that the Executive shall not be entitled to any refund
with respect to the claim and the Corporation does not notify the Executive in
writing of its intent to contest the denial of refund prior to the expiration of
30 days after the determination, then the advance shall be forgiven and shall
not be required to be repaid and the amount of the advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.
(F) Notwithstanding any other provision of this Section 5, to the
extent that the Executive is entitled to a tax "gross-up" payment with respect
to a Payment from the Corporation, any Subsidiary, or any affiliate of the
Corporation under any other agreement, the foregoing provisions of this Section
5 shall not apply to that Payment.
6. Termination Procedures.
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(A) During the term of this Agreement, any purported termination
of the Executive's employment (other than by reason of death) shall be
communicated by written Notice of Termination from one party hereto to the other
party hereto in accordance with Section 10 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice that indicates
the specific termination provision in this Agreement relied upon, and, if
applicable, the notice shall set 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. Further, a Notice of Termination
for Cause shall include a copy of a resolution duly adopted by the affirmative
vote of not less than a majority of the entire membership of the Board at a
meeting of the Board that was called and held for the purpose of considering the
termination finding that, in the informed, reasonable, good faith judgment of
the Board, the Executive was guilty of conduct set forth in the definition of
Cause in Section 1(B), and specifying the particulars thereof in detail.
(B) "Date of Termination" with respect to any purported
termination of the Executive's employment during the term of this Agreement
(other than by reason of death) shall mean (i) if the Executive's employment is
terminated for Disability, 20 business days after Notice of Termination is given
(provided that the Executive shall not have returned to the full-time
performance of the Executive's duties during that 20 business day period) and
(ii) if the Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination, which, in the case of a termination by
the Corporation, shall not be less than ten business days except in the case of
a termination for Cause, and, in the case of a termination by the Executive,
shall not be less than ten business days nor more than 20 business days,
respectively, after the date such Notice of Termination is given.
7. No Mitigation. The Executive shall not be required to seek other
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employment or to attempt in any way to reduce any amounts payable to the
Executive by the Corporation pursuant to this Agreement. Further, the amount of
any payment or benefit provided for in this Agreement shall not be reduced by
any compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Corporation or a Subsidiary, or otherwise.
8. Disputes.
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(A) If a dispute or controversy arises out of or in connection
with this Agreement, the parties shall first attempt in good faith to settle the
dispute or controversy by mediation under the Commercial Mediation Rules of the
American Arbitration Association before resorting to arbitration or litigation.
Thereafter, any remaining unresolved dispute or controversy arising out of or in
connection with this Agreement shall, upon a written notice from the Executive
to the Corporation either before suit thereupon is filed or within 20 business
days thereafter, be settled exclusively by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in a city
located within the continental United States designated by the Executive.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The Executive shall, however, be entitled to seek specific
performance of the Corporation's obligations hereunder during the pendency of
any dispute or controversy arising under or in connection with this Agreement.
(B) Any legal action concerning this Agreement, other than a
mediation or an arbitration described in paragraph (A) of this Section 8,
whether instituted by the Corporation or the Executive, shall be brought and
resolved only in a state court of competent jurisdiction located in the
territory that encompasses the city, county, or parish in which the Executive's
principal residence is located at the time such action is commenced. The
Corporation hereby irrevocably consents and submits to and shall take any action
necessary to subject itself to the personal jurisdiction of that court and
hereby irrevocably agrees that all claims in respect of the action shall be
instituted, heard, and determined in that court. The Corporation agrees that
such court is a convenient forum, and hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of the action. Any final judgment in the action may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
(C) The Corporation shall pay all costs and expenses, including
attorneys' fees and disbursements, of the Corporation and, at least monthly, the
Executive in connection with any legal proceeding (including arbitration),
whether or not instituted by the Corporation or the Executive, relating to the
interpretation or enforcement of any provision of this Agreement, provided that
if the Executive instituted the proceeding and the judge, arbitrator, or other
individual presiding over the proceeding affirmatively finds that the Executive
instituted the proceeding in bad faith, the Executive shall pay all costs and
expenses, including attorney's fees and disbursements, of Executive and the
Corporation. The Corporation shall pay prejudgment interest on any money
judgment obtained by Executive as a result of such proceeding, calculated at the
rate provided in Section 1274(b)(2)(B) of the Code.
9. Successors; Binding Agreement.
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(A) In addition to any obligations imposed by law upon any
successor to the Corporation, the Corporation shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business or assets of the Corporation
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Corporation would be required to perform it if no
such succession had taken place. Failure of the Corporation to obtain the
assumption and agreement prior to the effectiveness of any succession shall be a
breach of this Agreement and shall entitle the Executive to compensation from
the Corporation in the same amount and on the same terms as the Executive would
be entitled to hereunder if the Executive were to terminate his employment for
Good Reason immediately after a Change in Control and during the term of this
Agreement, except that, for purposes of implementing the foregoing, the date on
which any succession becomes effective shall be deemed the Payment Trigger
occasioned by the foregoing deemed termination of employment for Good Reason
immediately following a Change in Control. The provisions of this Section 9
shall continue to apply to each subsequent employer of Executive bound by this
Agreement in the event of any merger, consolidation, or transfer of all or
substantially all of the business or assets of that subsequent employer.
(B) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, and legatees. If the
Executive shall die while any amount would be payable to the Executive hereunder
(other than amounts which, by their terms, terminate upon the death of the
Executive) if the Executive had continued to live, the amount, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the executors, personal representatives, or administrators of the Executive's
estate.
10. Notices. For the purpose of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon actual receipt:
To the Corporation:
ALLTEL Corporation
Xxx Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
To the Executive:
Xxxxx X. X'Xxxx
0000 Xxxxxxxx
Xxxxxx Xxxx, XX 00000
11. Miscellaneous. No provision of this Agreement may be modified,
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waived, or discharged unless such waiver, modification, or discharge is agreed
to in writing and signed by the Executive and an officer of the Corporation
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction, and performance of this
Agreement shall be governed by the laws of the State of Delaware. All references
to sections of the Exchange Act or the Code shall be deemed also to refer to any
successor provisions to such sections. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal, state, or
local law and any additional withholding to which the Executive has agreed.
12. Validity. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth above.
ALLTEL CORPORATION
Attest:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxx X. Xxxx
_________________________________ By __________________________________
Name: Xxxxxxx X. Xxxxxx Name: Xxx X. Xxxx
Title: Secretary Title:
Witness:
/s/ Xxxxx Xxxxxxxx /s/ Xxxxx X'Xxxx
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Xxxxx X. X'Xxxx
