[FORM 8 - EXECUTIVE RETENTION AGREEMENT
RESTRICTED STOCK AND OPTIONS VERSION]
MEDIAONE GROUP, INC.
EXECUTIVE RETENTION AGREEMENT
THIS AGREEMENT is made between MediaOne Group, Inc. (the "Company") and
_________________ ("Grantee"), as of ____________________ ("Date of Grant").
Pursuant to the MediaOne Group, Inc. 1994 Stock Plan (the "Plan"), the
Human Resources Committee of the Board of Directors (the "Committee") has
approved the granting to Grantee of restricted shares of __________________
Common Stock ("Restricted Stock") and an option to purchase shares of
__________________ Common Stock (the "Option"), without par value, as of the
Date of Grant, on the terms and conditions set forth in this Agreement, as a
matter of separate inducement in connection with Grantee's engagement with
the Company or a Related Entity, and not in lieu of salary or other
compensation for Grantee's services.
In consideration of the foregoing and of the mutual covenants set forth
herein, and other good and valuable consideration, the Company and Grantee
agree as follows:
1. INCORPORATION OF PLAN AND DEFINED TERMS. The Restricted Stock and
Option are granted pursuant to the Plan, the terms of which are incorporated
by reference and apply to this Agreement as if they were fully set forth
herein. Terms used in this Agreement and not otherwise defined shall have the
meanings set forth in the Plan.
2. CONTINUOUS EMPLOYMENT REQUIREMENT. Grantee hereby expressly agrees
and acknowledges that he or she must remain in the continuous employment of
the Company or a Related Entity for the full duration of the vesting period
applicable to any Award granted under this Agreement in order for the Award
to become Vested, unless otherwise expressly set forth elsewhere in this
Agreement. Grantee further expressly agrees and acknowledges that if he or
she discontinues employment with the Company or a Related Entity at any time
whatsoever, for any reason whatsoever, including without limitation
termination of employment by the Company or Related Entity, prior to the time
at which an Award granted under this Agreement becomes Vested, Grantee shall
forfeit all unvested Restricted Stock and unvested Stock Options granted
under this Agreement.
3. RESTRICTED STOCK.
X. XXXXX OF RESTRICTED STOCK. On the terms and conditions set
forth in this Agreement, the Company hereby grants to Grantee ______ shares
of Restricted Stock.
B. RESTRICTED PERIOD. Except as otherwise set forth in this
Agreement, the Restricted Stock shall become Vested on the fifth (5th) annual
anniversary of the Date of Grant; provided, however, that the vesting of the
Restricted Stock shall be subject to the continuous employment of Grantee
until the fifth (5th) annual anniversary of the Date of Grant (the
"Restricted Period"). Except as set forth in this Agreement, the Restricted
Stock shall become Vested only to the extent that the foregoing continuous
employment requirement is satisfied, regardless of the circumstances under
which Grantee's employment is terminated, and the Restricted Stock
consequently shall remain subject to forfeiture during the Restricted Period.
(i) DEATH OR DISABILITY. Except as otherwise set forth in
this Agreement, in the event of the death or Disability of Grantee, a
prorated number of shares of the Restricted Stock shall become Vested and the
Restricted Stock shall not vest further. Such proration shall be based on
the number of months in the Restricted Period through the month of Grantee's
death or Disability in relation to the total number of months in the
Restricted Period.
(ii) RETIREMENT. Except as otherwise set forth in this
Agreement, if the Restricted Stock has not Vested upon Grantee's Retirement,
the Restricted Period shall continue and restrictions shall lapse at the end
of the Restricted Period, unless the Committee, in its sole discretion,
determines otherwise. The continuation of vesting shall be contingent upon
Grantee's execution and delivery to the Company, on or prior to the effective
date of Grantee's Retirement, of the Company's standard form of "Waiver &
Release" of claims, available from the Human Resources Department of the
Company.
(iii) OTHER TERMINATION. If Grantee's employment with the
Company or a Related Entity is terminated for any reason other than for
death, Disability or Retirement, the Restricted Stock shall be forfeited
unless the Committee, in its sole discretion, determines that such Restricted
Stock is then Vested or sets alternative terms on which such Restricted Stock
may become Vested.
iv) CHANGE OF CONTROL. Upon the occurrence of a Change of
Control, the restrictions on the Restricted Stock shall lapse and shall be
Vested immediately. .For purposes of this Paragraph, "Change of Control"
shall have the identical meaning as set forth in the Change of Control
Agreement, if any, that Grantee has executed with the Company. To ensure
parallel application, for purposes of this Paragraph only, defined terms
contained in the definition of "Change of Control" set forth in Grantee's,
Change of Control Agreement shall have the same meaning here as set forth in
that Change of Control Agreement. If Grantee has not executed any such
Change of Control Agreement, "Change of Control" shall have the identical
meaning as set forth in the [Stock, LTIP, etc.] Plan.
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C. CUSTODY; VOTING AND DIVIDENDS. The Company shall hold the
Restricted Stock in an account on behalf of Grantee. The Grantee shall
execute and return the attached Stock Power in favor of the Company, to be
exercised by the Company only in the case of the forfeiture or other return
of the Restricted Stock to the Company as provided herein. The Grantee shall
reinvest such dividends as may be declared on such Restricted Stock, which
dividends shall vest concurrently with the Restricted Stock. Grantee shall
be entitled to voting privileges associated with such Restricted Stock.
4. STOCK OPTION.
A. SHARES OPTIONED; OPTION PRICE. The Grantee may purchase all or
any part (in whole shares) of an aggregate of ________ shares of Common
Stock, at a purchase price per share of ________ (which is not less than the
Fair Market Value on the Date of Grant), (the "Option Price") on the terms
and conditions set forth in this Agreement.
B. OPTION TERM; VESTING; TIMES OF EXERCISE. Except as otherwise
set forth in this Agreement, the Option shall become Vested upon the third
(3rd) annual anniversary of the Date of Grant, provided, however, that the
vesting of the Option shall be subject to the continuous employment of
Grantee until the third (3rd) annual anniversary of the Date of Grant (the
"Option Vesting Period"), and provided further that the Option shall expire
and shall no longer be exercisable following ten (10) years from the Date of
Grant (the "Expiration Date"). Except as set forth in this Agreement, the
Option shall become Vested only to the extent that the foregoing continuous
employment requirement is satisfied, regardless of the circumstances under
which Grantee's employment is terminated.
(i) DEATH. In the event of the death of Grantee, the Option
shall become Vested with respect to a prorated number of shares of Common
Stock underlying the Option and shall not vest further. The estate of
Grantee shall have the right to exercise all or any portion of the Option, at
any time and from time to time consistent with rules established by the
Committee for the administration of the Plan, within one (1) year after the
date of death or such other period, if any, as the Committee in its sole
discretion shall determine (but not after the Expiration Date). Such
proration shall be based on the number of months in the Option Vesting Period
through the month of Grantee's death in relation to the total number of
months in the Option Vesting Period.
(ii) DISABILITY. Except as otherwise set forth in this
Agreement, if the employment of Grantee is terminated because of Disability,
the Option shall become Vested with respect to a prorated number of shares of
Common Stock underlying the Option and shall not vest further. Such
proration shall be based on the number of months in the Option Vesting Period
through the month of Grantee's Disability in relation to the total number of
months in the Option Vesting Period. Upon vesting, Grantee shall have the
right to exercise the Option, at any time and from time to time, but not
after the Expiration Date.
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(iii) RETIREMENT. Except as otherwise set forth in this
Agreement, upon Grantee's Retirement, the Option shall be retained by
Grantee, and the Option, if not then Vested, shall become Vested at the
expiration of the Option Vesting Period, unless the Committee, in its sole
discretion, determines otherwise; provided, however, that the continuation of
vesting shall be contingent upon Grantee's execution and delivery to the
Company, on or prior to the effective date of Grantee's Retirement, of the
Company's standard form of "Waiver & Release" of claims, available from the
Human Resources Department of the Company. Upon vesting, Grantee shall have
the right to exercise the Option, at any time and from time to time, until
the Expiration Date unless otherwise provided in this Agreement.
(iv) OTHER TERMINATION. If Grantee's employment with the
Company or a Related Entity is terminated for any reason other than for
death, Disability or Retirement and other than "for cause," as such term is
defined in the Plan, Grantee shall have the right to exercise all or any
portion of the Option, if the Option is Vested, at any time and from time to
time within three (3) months of termination or such other period, if any, as
the Committee in its sole discretion shall determine (but not after the
Expiration Date).
(v) CHANGE OF CONTROL. Upon the occurrence of a Change of
Control, the Option shall become Vested immediately. For purposes of this
Paragraph, "Change of Control" shall have the identical meaning as set forth
in the Change of Control Agreement, if any, that Grantee has executed with
the Company. To ensure parallel application, for purposes of this Paragraph
only, defined terms contained in the definition of "Change of Control" set
forth in Grantee's, Change of Control Agreement shall have the same meaning
here as set forth in that Change of Control Agreement. If Grantee has not
executed any such Change of Control Agreement, "Change of Control" shall have
the identical meaning as set forth in the [Stock, LTIP, etc.] Plan.
(vi) TERMINATION FOR CAUSE. Notwithstanding any other
provision in this Agreement, if Grantee's employment is terminated by the
Company or any Related Entity "for cause," as such term is defined in the
Plan, Grantee immediately shall forfeit all rights under the Option except as
to the shares of Common Stock already purchased prior to such termination.
C. EXERCISE: PAYMENT FOR AND DELIVERY OF STOCK. The Option may be
exercised only by Grantee or his or her transferee(s) by last will and testament
or the laws of descent and distribution. The Option may be exercised by giving
notice of exercise to the Company specifying the number of shares (minimum of
100, unless the unexercised balance of the Option is less than 100) to be
purchased and the total purchase price. The purchase price shall be payable (i)
in cash or by an equivalent means, (ii) by delivery, constructive or otherwise,
to the Company of shares of Common Stock owned by Grantee, or (iii) any
combination of the foregoing. Any shares of Common Stock so
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tendered shall be valued at their Fair Market Value as of the Option exercise
date.
D. NON-TRANSFERABILITY OF OPTION. The Option is not transferable
other than by last will and testament or the laws of descent and
distribution. The Option shall not otherwise be transferred or assigned,
pledged, hypothecated or otherwise disposed of in any way, whether by
operation of law or otherwise, and shall not be subject to execution,
attachment or similar process. The Option shall not be assignable or
transferable pursuant to a domestic relations order. During the lifetime of
Grantee, the Option shall be exercisable only by Grantee or Grantee's
guardian or legal representative. Upon any attempt to transfer the Option
other than by last will and testament or the laws of descent and
distribution, or to assign, pledge, hypothecate or otherwise dispose of the
Option, or upon the levy of any execution, attachment or similar process upon
the Option, the Option shall terminate immediately and become null and void.
5. PERFORMANCE FOR COMPETITORS. If at any time following the date of
this Agreement and before the [Option/Restricted Stock] is Vested, regardless
of whether Grantee has Retired, Grantee directly or indirectly receives
payment for services rendered to, or is otherwise employed by, any person,
firm or corporation that is in competition with the Company or engaged in
providing any goods or services that are substantially the same as any goods
or services provided or under development by the Company Grantee immediately
shall forfeit all rights under the [Option/Restricted Stock], unless the
Committee in its sole discretion determines otherwise, or unless Grantee is
in full compliance with the Company's Policy on Service on Outside Boards of
Directors, as interpreted solely by the Company's Senior Management
Compliance Committee. If at any time Grantee renders services to or becomes
otherwise employed by any person, firm or corporation that is in competition
with the Company or engaged in providing any goods or services that are
substantially the same as goods or services provided or under development by
the Company, Grantee shall have ninety (90) days after the date of such
employment to exercise any Vested and non-expired [Option/Restricted Stock].
Any determination under this Paragraph 5, including whether a person, firm or
corporation is "in competition with" the Company or providing "substantially
the same" goods or services as the Company provides or is developing, will be
subject to the sole discretion of the Committee.
6. NONSOLICITATION OF EMPLOYEES ("NO RAID") Grantee agrees that he or
she will not for a period of one (1) year immediately following the
termination of his or her employment with the Company for any reason, either
on Grantee's own account or in conjunction with or on behalf of any other
person or entity whatsoever, directly or indirectly induce, solicit, or
entice away any person who, at any time during the three (3) months
immediately preceding Grantee's termination of employment, is a managerial
level employee of the Company (including, but not limited to, any Officer,
Executive Director or director-level employee, or any equivalent or successor
term for any such employees). If Grantee engages in any conduct contrary to
the provisions of this Paragraph 6, Grantee shall forfeit the
[Option/Restricted Stock] to the extent the [Option/Restricted Stock] has not
Vested, unless the Committee determines otherwise. Such forfeiture is in
addition to any other remedies available under law.
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7. INTELLECTUAL PROPERTY OWNERSHIP AND PROTECTION. Grantee agrees that
any inventions, discoveries, creations (including without limitation
software, writings, drawings and other works), improvements, confidential
information or other intellectual property that he or she may develop or
create, or assist in developing or creating, during his or her employment
with the Company, whether or not patentable or eligible for copyright, that
relate to the actual, planned, or foreseeable business or other activities of
the Company, or that result from his or her work for the Company, are the
exclusive property of the Company. Grantee agrees to disclose promptly such
property to the Company and will, both during and after his or her
employment, and without additional compensation, execute all assignments and
other documents and do all things reasonably necessary to secure and enforce
U.S. and foreign intellectual property rights for the Company, including
patents and copyrights.
Grantee is not obligated to assign any intellectual property to Company
that Grantee created prior to Grantee's employment with the Company. To
avoid any confusion, Grantee must identify in writing on Attachment A
[MAKE SURE APPROPRIATE ATTACHMENT IS REFERENCED] any such intellectual
property that has not been patented or published and forward it along with
this letter.
Grantee agrees that Grantee will hold in confidence and will not, during
or after his or her employment, disclose or use for the benefit of any person
or entity other than Company, any Company confidential information that was
developed or received during his or her employment. "Company confidential
information" shall include all trade secrets, research and development
information, product and marketing plans, business or legal strategies,
personnel or financial data, product and service specifications, prototypes,
software, customer lists and other confidential information or materials of
Company or of others with whom Company has a confidential relationship.
Grantee will promptly return all such information and materials to Company
when his or her employment ends.
[USE AS NEEDED, COULD REMOVE DEPENDING ON THE CIRCUMSTANCE I.E., NO STOCK IN THE
OFFER]. If Grantee fails to comply with the provisions of this paragraph 7,
Grantee shall forfeit the [Option/Restricted Stock] to the extent the
[Option/Restricted Stock] has not vested, unless the Committee determines
otherwise. Such forfeiture is in addition to any other remedies available to
the Company.
8. NON-DISCLOSURE OF AGREEMENT. If, at any time, regardless of whether
Grantee is Retired or otherwise not employed by the Company or a Related
Entity, Grantee discloses, directly or indirectly, the existence of this
Agreement, or the terms, conditions, or amounts set forth in this Agreement,
except as may be required by law (after reasonable advance notice to the
Company), and other than to Grantee's immediate family, attorney, tax return
preparer and financial counselor, Grantee immediately shall forfeit the
Option or Restricted Stock to the extent the Option or Restricted Stock has
not Vested or to the extent the Restricted Stock or Option became Vested
within one year prior to the date Grantee discloses such information. If
Grantee has sold such forfeited Restricted Stock, Grantee immediately shall
remit to the Company, in cash, an amount equal to the Fair Market Value of
such Restricted Stock as of the date the Restricted Stock became Vested. If
Grantee discloses such information within one (1) year following the date
Grantee exercises any portion of the Option, Grantee immediately shall remit
to the Company, in cash, an amount equal to the Fair Market Value of the
number of shares of
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Common Stock acquired on the date Grantee exercised that portion of the
Option, less the Option Price paid by Grantee for such shares. The foregoing
provisions of this Paragraph 8 apply unless otherwise determined by the
Committee or its designee in its sole discretion.
9. DECISIONS OF COMMITTEE. Any decision, interpretation or other
action made or taken in good faith by the Committee arising out of or in
connection with the Plan or the Restricted Stock or Option shall be final,
binding and conclusive on the Company and Grantee and any respective heir,
executor, administrator, successor or assign.
10. ARBITRATION. Grantee agrees that any claim, controversy or
dispute that may arise directly or indirectly in connection with Grantee's
employment or termination of employment with MediaOne Group, and/or any
associated or related disputes arising therefrom involving MediaOne and/or
any employee(s), Director(s), officer(s), or agent(s) of MediaOne, whether
arising in contract, statute, tort, fraud, misrepresentation, discrimination,
common law or any other legal theory, including, but not limited to, disputes
relating to the making, performance or interpretation of this Agreement; and
claims or other disputes arising under Title VII of the Civil Rights Act of
1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in
Employment Act of 1967, as amended; 42 U.S.C. Section 1981, Section 1981a,
Section 1983, Section 1985, or Section 1988; the Family and Medical Leave
Act of 1993; the Americans with Disabilities Act of 1990, as amended; the
Rehabilitation Act of 1973, as amended; the Fair Labor Standards Act of 1938,
as amended; the Employee Retirement Income Security Act of 1974, as amended
("ERISA"); the Colorado Anti-Discrimination Act; or any other similar
federal, state or local law or regulation, whenever brought, shall be
resolved by arbitration. If, however, Grantee would otherwise be legally
required to exhaust administrative remedies to obtain legal relief, Grantee
can and must exhaust such administrative remedies prior to pursuing
arbitration. The only legal claims between Grantee and MediaOne that are not
included for arbitration within this Agreement are claims for workers'
compensation or unemployment compensation benefits. BY SIGNING THIS
AGREEMENT, GRANTEE VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVES ANY RIGHT
GRANTEE MAY OTHERWISE HAVE TO SEEK REMEDIES IN COURT OR OTHER FORUMS,
INCLUDING THE RIGHT TO A JURY TRIAL. MEDIAONE ALSO HEREBY VOLUNTARILY,
KNOWINGLY, AND INTELLIGENTLY WAIVES ANY RIGHT IT MIGHT OTHERWISE HAVE TO SEEK
REMEDIES AGAINST GRANTEE IN COURT OR OTHER FORUMS, INCLUDING THE RIGHT TO A
JURY TRIAL. The Federal Arbitration Act, 9 U.S.C. Sections 1-16 ("FAA")
shall govern the arbitrability of all claims, provided that they are
enforceable under the FAA, as it may be amended from time to time. In the
event the FAA does not govern, the Colorado Uniform Arbitration Act shall
apply. Additionally, the substantive law of Colorado, to the extent it is
consistent with the terms stated in this Agreement for arbitration, shall
apply to any common law claims. This Agreement for arbitration supersedes any
prior arbitration agreement between Grantee and MediaOne to the extent they
are inconsistent.
A single arbitrator engaged in the practice of law shall conduct the
arbitration under the applicable rules and procedures of the American
Arbitration Association ("AAA"), unless otherwise agreed to by the parties.
Any dispute, that relates directly or indirectly to Grantee's employment with
MediaOne or to the termination of Grantee's employment will be conducted
under the AAA National Rules for the Resolution of Employment Disputes,
effective June 1, 1997. The arbitrator shall be chosen from a state other
than your state of residence and other than Colorado. Other than as set
forth herein, the arbitrator shall have no authority to add to,
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detract from, change, amend, or modify existing law. The arbitrator shall
have the authority to order such discovery as is necessary for a fair
resolution of the dispute. The arbitrator may award punitive damages, as
allowed by Title VII of the Civil Rights Act of 1964, as amended; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as
amended; and the Americans with Disabilities Act of 1990, as amended,
regardless of any limitations imposed by federal, state, or local laws
regarding amounts that may be awarded in arbitration proceedings. All
arbitration proceedings, including without limitation, settlements under this
Agreement, will be confidential. Grantee shall not be required to pay more
than One Hundred Fifty Dollars ($150.00) of the arbitrator's hourly fees and
expenses. The prevailing party in any arbitration shall be entitled to
receive reasonable attorneys' fees as provided by law. The arbitrator's
decision and award shall be final and binding, as to all claims that were, or
could have been, raised in the arbitration, and judgment upon the award
rendered by the arbitrator may be entered to any court having jurisdiction
thereof. If any party hereto files a judicial or administrative action
asserting claims subject to this arbitration provision, and another party
successfully stays such action and/or compels arbitration of such claims, the
party filing said action shall pay the other party's costs and expenses
incurred in seeking such stay and/or compelling arbitration, including
reasonable attorneys' fees not to exceed Two Thousand Five Hundred Dollars
($2,500.00).
11. EXECUTIVE SEVERANCE AGREEMENT AND OTHER AGREEMENT WITH THE COMPANY.
Except as expressly provided in this Agreement, the provisions of this
Agreement shall not be affected in any way whatsoever by any Executive
Severance Agreement or any other written or verbal agreement between Grantee
and the Company or a Related Entity.
12. MISCELLANEOUS.
A. NOTICES. Any notice to be given to the Company shall be
personally delivered to or addressed to its Senior Vice President - Human
Resources, and any notice to be given to Grantee shall be addressed to him or
her at the address given beneath his or her signature below or such other
address as the Company reasonably believes to be his or her most current
address. Any notice to the Company is deemed given when received on behalf
of the Company by the Senior Vice President - Human Resources, of the Company
at 000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000. Any notice to
Grantee is deemed given when personally delivered or enclosed in a properly
sealed envelope addressed as aforesaid and deposited, postage prepaid, in a
post office or branch post office regularly maintained by the United States
Postal Service.
B. EMPLOYMENT. THE COMPANY MAY TERMINATE GRANTEE'S EMPLOYMENT AT
ANY TIME, WITH OR WITHOUT CAUSE, UNLESS THE EMPLOYMENT IS COVERED BY SEPARATE
CONDITIONS CONTAINED IN A COLLECTIVE BARGAINING AGREEMENT OR OTHER AUTHORIZED
WRITTEN AGREEMENT SIGNED BY BOTH PARTIES, AND NOTHING CONTAINED IN THIS
AGREEMENT CREATES OR IMPLIES AN EMPLOYMENT CONTRACT OR TERM OF EMPLOYMENT OR
ANY PROMISE OF SPECIFIC TREATMENT UPON WHICH GRANTEE MAY RELY.
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C. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Colorado.
D. AMENDMENTS. The Company may at any time propose to amend this
Agreement, but any such alteration or amendment shall be effective only if in
writing, signed by a duly authorized officer of the Company and by Grantee.
MediaOne Group, Inc. GRANTEE
By:
--------------------------- ----------------------------------------
Title: Full Name
--------------------------
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Xxxxxx Xxxxxxx
----------------------------------------
Xxxx, Xxxxx and Zip Code
----------------------------------------
Social Security Number
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IRREVOCABLE STOCK POWER
FOR VALUE RECEIVED, the undersigned does (do) hereby sell, assign and
transfer to:
MEDIAONE GROUP, INC.
00-0000000
(Tax Identification Number)
((NOShrs)) shares of Common Stock issued by MediaOne Group, Inc. (the
"Company") represented by Grant Number ((Cgrantno)), standing in the name of
the undersigned on the books of the Company.
The undersigned does (do) hereby irrevocably constitute and appoint the Vice
President - Law for the Company as attorney to transfer the said stock on the
books of the Company, with full power of substitution in the premises.
Dated:
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((FIRSTNAME)) ((MIDLNAME)) ((LASTNAME))
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IMPORTANT -- READ CAREFULLY: The signature(s) of this Stock Power must
correspond with the name(s) as written upon the face of the certificate(s) or
account(s) in every particular without alteration or enlargement or any change
whatever.
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[NAME]
DATE
ATTACHMENT A
PAGE 1
INTELLECTUAL PROPERTY THAT HAS NOT BEEN PATENTED OR PUBLISHED
1.
2.
3.
