EXHIBIT 10(h)
[FORM OF EXECUTIVE SEVERANCE AGREEMENT]
AGREEMENT
I. RECITALS
A. The parties to this Agreement are U S WEST (as defined in Section
II.M., below) at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 and
_______________ (hereinafter "Executive") whose address is _________________.
Executive is currently employed by _______________ as _____________.
B. This Agreement sets forth the understanding between U S WEST and
Executive concerning the circumstances under which Executive will be entitled to
receive severance benefits in the event his or her employment with U S WEST is
terminated under circumstances identified in this Agreement and describes the
nature and amount of the severance benefits.
C. 1. IT IS UNDERSTOOD AND AGREED BY U S WEST AND EXECUTIVE THAT THIS
AGREEMENT DOES NOT CONTAIN ANY PROMISE OR REPRESENTATION CONCERNING THE DURATION
OF EXECUTIVE'S EMPLOYMENT WITH U S WEST. EXECUTIVE SPECIFICALLY ACKNOWLEDGES
THAT HIS OR HER EMPLOYMENT WITH U S WEST IS AT-WILL AND MAY BE ALTERED OR
TERMINATED BY EITHER EXECUTIVE OR U S WEST AT ANY TIME, WITH OR WITHOUT CAUSE
AND/OR WITH OR WITHOUT NOTICE. THIS AT-WILL EMPLOYMENT RELATIONSHIP MAY NOT BE
MODIFIED UNLESS IN A WRITTEN AGREEMENT SIGNED BY THE EXECUTIVE AND AN AUTHORIZED
OFFICER OF U S WEST.
2. EXECUTIVE FURTHER ACKNOWLEDGES THAT THE WRITTEN POLICIES
AND PROCEDURES OF U S WEST DO NOT CONSTITUTE CONTRACTS BETWEEN U S WEST AND
EXECUTIVE, AND THAT THE POLICIES AND PROCEDURES ARE SUBJECT TO CHANGE BY U S
WEST AT ANY TIME IN U S WEST'S SOLE DISCRETION. EXECUTIVE ACKNOWLEDGES THAT, AS
OF THE DATE OF EXECUTION OF THIS AGREEMENT, THERE IS NO CONTRACT, EITHER
EXPRESSED OR IMPLIED, IN EFFECT BETWEEN EXECUTIVE AND U S WEST THAT ALTERS THE
AT-WILL EMPLOYMENT RELATIONSHIP OR CREATES OR IMPLIES THE EXISTENCE OF AN
EMPLOYMENT CONTRACT. EXECUTIVE ACKNOWLEDGES THAT, WITH THE EXCEPTION OF
EXECUTIVE'S STOCK OPTION AGREEMENTS AND EXECUTIVE'S RESTRICTED STOCK AGREEMENTS
AND ANY NEGOTIATED AND DULY EXECUTED PENSION, MEDICAL, DEFERRED COMPENSATION,
LIFE INSURANCE, LONG-TERM INCENTIVE PROGRAM ("LTIP"), SHORT-TERM INCENTIVE
PROGRAM ("STIP"), AND/OR CHANGE OF CONTROL AGREEMENTS, THERE ARE NO OTHER
CONTRACTS IN EFFECT BETWEEN EXECUTIVE AND U S WEST, INC. OR ANY SUBSIDIARY OR
AFFILIATED COMPANY AS OF THE DATE OF EXECUTION OF THIS AGREEMENT PROVIDING FOR
SEVERANCE BENEFITS.
D. In consideration of the mutual covenants contained herein and other
valuable consideration, receipt of which is hereby acknowledged, the parties
contract and agree as follows.
II. DEFINITIONS
The following definitions apply solely for the purposes of this
Agreement:
A. "Change of Control" means any of the following:
1. any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended) is or becomes a
beneficial owner of (or otherwise has the authority to vote), directly or
indirectly, securities representing twenty percent (20%) or more of the total
voting power of all of the Company's then outstanding voting securities, unless
through a transaction arranged by, or consummated with the prior approval of the
Board of Directors; or
2. any period of two (2) consecutive calendar years during
which there shall cease to be a majority of the Board of Directors comprised as
follows: individuals who at the beginning of such period constitute the Board of
Directors and any new director(s) whose election by the Board of Directors or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved; or
3. the Company becomes a party to a merger or consolidation in
which either (i) the Company will not be the surviving corporation or (ii) the
Company will be the surviving corporation and any outstanding shares of Common
Stock of the Company will be converted into shares of any other company (other
than a reincorporation or the establishment of a holding company involving no
change of ownership of the Company) or other securities or cash or other
property (excluding payments made solely for fractional shares); or
4. any other event that a majority of the Board of Directors,
in its sole discretion, shall determine constitutes a Change of Control.
B. "Company Information" means and includes, without limitation, any
confidential, legal, financial, marketing, business, technical, or other
information, including specifically but not exclusively, information that
Executive prepared, caused to be prepared, or received in connection with
Executive's employment with U S WEST, such as, management and business plans,
business strategies, software, software evaluations, trade secrets, personnel
information, marketing methods and techniques, and any of the above-recited
information as it relates to U S WEST that shall have been obtained and/or
learned during his or her employment and that shall not be public knowledge.
C. "Company Property" means reports, files, memoranda, records, credit
cards, keys, passes, computer access codes, software, cellular phones, computer
equipment, facsimile equipment and any other property that Executive has
requested or received, prepared or helped to prepare in connection with his or
her employment with U S WEST. Company Property also includes, without
limitation, any copies, duplicates, reproductions or excerpts of the materials
outlined in this paragraph.
D. "Conditions" means that: 1) Executive has been Discharged from
Employment; 2) within twenty-one (21) calendar days after the date on which
Executive is notified of his or her Discharge from Employment, Executive has
executed and delivered to the office of the Vice President - Law and Human
Resources for U S WEST, Inc. a Waiver & Release; 3) the period for revocation of
the Waiver & Release has expired; and 4) Executive has complied with the
requirements regarding return of all Company Property defined in this Agreement.
E. "Discharge for Cause" means Executive's discharge from employment
due to Executive's: 1) intentional breach of or failure to perform his or her
employment duties; 2) intentional conduct that is demonstrably and materially
injurious to U S WEST, monetarily or otherwise; or 3) significant failure to
comply with the U S WEST Code of Business Ethics and Conduct, Corporate Policies
or Compliance Plans. The parties acknowledge that this definition of Discharge
for Cause is not intended and does not apply to any aspect of the relationship
between U S WEST and any of its employees, including Executive, beyond
determining Executive's eligibility for Severance Benefits under this Agreement.
F. "Discharge(d) from Employment" means Executive's involuntary and
permanent separation from employment with U S WEST by virtue of: 1) discharge
without Cause, as that term is described in Section II. E. above; 2) layoff as a
part of a reduction in force; or 3) Resignation or Retirement Under Certain
Circumstances. Discharge(d) from Employment shall not include any other
circumstances, including, but not limited to: 1) Executive's Discharge for
Cause; 2) Executive's resignation or retirement, other than in the circumstances
set forth in Section II. H. below; 3) any leave of absence; 4) the termination
of Executive's employment due to death or disability; or 5) the transfer of
Executive to a new location or the reassignment of Executive to U S WEST, Inc.
or a wholly or partially owned subsidiary (except as otherwise provided for
herein) of U S WEST, Inc.
G. "LTIP" means the U S WEST Long-Term Incentive Plan and any successor
or predecessor plan(s) thereto.
H. "Resign(ation) or Retire(ment) Under Certain Circumstances" means
that Executive has elected to resign or retire under the following
circumstances:
1. Executive has been offered, and within fifteen (15) days of
such offer has resigned or retired rather than accept, a transfer or assignment
to another position within the United States [Add for International, as
appropriate, reference to the relevant country or geographic region] with U S
WEST, Inc., a subsidiary of U S WEST, Inc., or an affiliate in which U S WEST,
Inc. owns, directly or indirectly, 50% or more of the entity, if the new
position is not comparable or superior (in terms of responsibility and
remuneration) to the position held by Executive immediately prior to the
transfer or reassignment; or
2. Executive has been offered, and within fifteen (15) days of
such offer has resigned or retired rather than accept, a transfer or assignment
to another position within the United States [Add for International, as
appropriate, reference to the relevant country or geographic region] with an
affiliate of U S WEST, Inc. in which U S WEST, Inc. owns, directly or
indirectly, less than 50% of the outstanding stock; or
3. Executive has been offered, and within fifteen (15) days of
such offer has resigned or retired rather than accept, a transfer or
reassignment to another position that is not located within the United States
[Add for International, as appropriate, reference to the relevant country or
geographic region]I. "Severance Benefits" means:
Cash Payments
1. Within thirty (30) calendar days after the date on which
Executive has complied with the Conditions, the U S WEST company that Executive
is employed by immediately prior to his or her Discharge from Employment shall
pay Executive in United States dollars in the United States the Severance
Payment, as applicable, in appreciation for his or her service to U S WEST,
substantially all of which service was rendered by Executive in the United
States [Be sure this applies to International Executives]. Applicable state and
federal withholding taxes will be deducted from the gross amount of this
Severance Payment. None of the payments pursuant to this paragraph shall be
included in the calculation of Executive's pension or savings benefits with U S
WEST.
2. (a) If a Change of Control has occurred within the three
(3) years prior to Executive's Discharge from Employment, within thirty (30)
calendar days after the Conditions have been satisfied, the U S WEST company
that Executive is employed by immediately prior to his or her Discharge from
Employment shall pay to Executive a sum equal to (a) two (2) times the amount
that would have been payable to Executive under the STIP at target and (b) a pro
rata portion of the cash value of the amount that would have been payable to
Executive under the LTIP at target. In the event any of such plans have been
modified, amended, or superseded by a successor plan prior to the date of
Discharge from Employment, the terms of the modified, amended, or new plan(s)
shall control. The amount of the STIP payments payable hereunder may be
determined by U S WEST in accordance with any criteria then in place. Applicable
state and federal withholding taxes will be deducted from the gross amount of
these STIP and LTIP payments. None of the payments pursuant to this subparagraph
shall be included in the calculation of Executive's pension benefits.
(b) If a Change of Control has not occurred within the
three (3) years prior to Executive's Discharge from Employment, within thirty
(30) calendar days after the Conditions have been satisfied, the U S WEST
company that Executive is employed by immediately prior to his or her Discharge
from Employment shall pay to Executive a sum equal to a pro rata portion of the
amount that would have been payable to Executive under the STIP at target and
(b) a pro rata portion of the cash value of the amount that would have been
payable to Executive under the LTIP at target. In the event any of such plans
have been modified, amended, or superseded by a successor plan prior to the date
of Discharge from Employment, the terms of the modified, amended, or new plan(s)
shall control. The amount of the STIP payments payable hereunder may be
determined by U S WEST in accordance with any criteria then in place. Applicable
state and federal withholding taxes will be deducted from the gross amount of
these STIP and LTIP payments. The amount of any STIP payments made to Executive
pursuant to this Agreement will be included in the calculation of Executive's
nonqualified pension benefits.
3. Within thirty (30) calendar days after the Conditions are
satisfied, the U S WEST company that Executive is employed by immediately prior
to his or her Discharge from Employment shall pay to Executive an amount equal
to the balance available to Executive for financial counseling services for the
remainder of the year of Executive's termination and will pay to Executive the
amount available for financial counseling services for the following year.
Stock and Stock Options
4. Vesting restrictions applicable to any stock granted by U S
WEST to Executive under the LTIP shall lapse thirty (30) calendar days after
execution and delivery of the Waiver & Release and satisfaction of all other
Conditions. Stock granted to Executive other than under the LTIP shall be
subject to the terms of the agreement governing such grant.
5. (a) The Human Resources Committee of the U S WEST, Inc.
Board of Directors ("HRC") has the sole discretion to alter or amend the vesting
schedule of any stock options and/or stock appreciation rights granted under the
Stock Plan prior to October 31, 1995. The existing discretion of the HRC is set
forth in the original agreement between Executive and U S WEST granting the
stock options and/or stock appreciation rights to Executive. Only if (i) the
original agreement between Executive and U S WEST granting any such stock
options and/or stock appreciation rights provides that the terms of any
agreement regarding severance benefits shall govern the treatment of such stock
options and/or stock appreciation rights under the particular circumstances of
Executive's Discharge from Employment, and (ii) Executive is Discharged from
Employment, then a pro rata portion of such stock options and/or stock
appreciation rights (rounded up to the nearest whole option and calculated in
the manner set forth below) shall become fully exercisable thirty (30) calendar
days after execution and delivery of the Waiver & Release and satisfaction of
all other Conditions. For any stock options and/or stock appreciation rights
granted under the Stock Plan on or after October 31, 1995, that are not
exercisable on the date of Discharge from Employment, a pro rata portion of such
stock options and/or stock appreciation rights (rounded up to the nearest whole
option) shall become fully exercisable thirty (30) calendar days after execution
and delivery of the Waiver & Release and satisfaction of all other Conditions.
Such pro rata portion shall be determined by multiplying the number of options
in any grant by a fraction (or series of fractions) the numerator of which is
the number of full months from the grant date to the date of Discharge from
Employment and the denominator of which is the number of full months in the
original vesting schedule for each applicable portion of the grant.
(b) If Executive's Discharge from Employment
is concurrent with Executive's retirement from employment as defined in the
Stock Plan, Executive's stock options shall be governed by the terms
governing retiree options under the Stock Plan, rather than the provisions of
Section II. I. 5. (a) above.
6. Provided Executive does not go into business in competition
with U S WEST or render services to or become employed by a firm engaged in such
competition, as determined in the sole discretion of the HRC or its designee,
Executive shall have the right, at any time up to three (3) years after the date
of his or her Discharge from Employment (but in no event after the expiration
date of the applicable stock options and stock appreciation rights), to exercise
stock options and stock appreciation rights held as of the date of Discharge
from Employment. In the event Executive does, within the three (3) year period,
go into business in competition with U S WEST or render services to or become
employed by a firm that is engaged in competition with U S WEST, Executive shall
have ninety (90) calendar days after the date on which he or she becomes so
employed or engaged in the competitive position to exercise any stock options
and stock appreciation rights that have not previously expired, to the extent
that such stock options and stock appreciation rights are then otherwise
exercisable. This Section, II. H. 6., shall not be applicable if Executive's
Discharge from Employment is concurrent with Executive's retirement from
employment as defined in the Stock Plan. If Executive has retired from
employment as defined in the Stock Plan, the terms of the Stock Plan shall
govern with respect to the matters addressed in this Section.
Medical, Dental and Vision Benefits
7. The U S WEST company that Executive is employed by
immediately prior to his or her Discharge from Employment shall take such steps
as are necessary to permit Executive to continue, in full force and effect and
"at U S WEST's Expense" for the "applicable period" (as those terms are defined
in Section II. O. of this Agreement), medical, dental and vision benefits for
Executive and Executive's dependents on the same basis as if Executive had
remained an active employee during such applicable period; provided, however,
that all rights to such benefits (except the right to continue health plan
coverage at Executive's own expense under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA")) shall terminate if the
Conditions are not satisfied within ninety (90) calendar days after the date of
Executive's Discharge from Employment with U S WEST.
Career Guidance Services
8. The U S WEST company that Executive is employed by
immediately prior to his or her Discharge from Employment shall take such steps
as are necessary to provide career guidance services to Executive through an
outside consulting firm selected by U S WEST. U S WEST will have sole discretion
to determine the exact amounts of career guidance services that will be
provided, and Executive does not have any right to receive a cash payment in
lieu of career guidance services.
J. "Severance Payment" means a payment amount equal to:
1. If Executive is a Band 1 Officer (or any successor
designation) on the date on which Executive is notified of his or her Discharge
from Employment, a lump sum severance amount equal to two (2) times Executive's
annual base salary in effect on the date of such notification; or
2. (a) If Executive is a Band 2 Officer (or any successor
designation) on the date on which Executive is notified of his or her Discharge
from Employment, and such notification of Discharge from Employment occurs
within three (3) years after a Change of Control, a lump sum severance amount
equal to two (2) times Executive's annual base salary in effect on the date of
notification.
(b) If Executive is a Band 2 Officer (or any successor
designation) on the date on which Executive is notified of his or her Discharge
from Employment, and such notification of Discharge from Employment does not
occur within three (3) years after a Change of Control, a lump sum severance
amount equal to one and one half (1.5) times Executive's annual base salary in
effect on the date of notification.
K. "Stock Plan" means the U S WEST, Inc. 1998 Stock Plan and its
predecessor and successor plans.
L. "STIP" means the U S WEST, Inc. Short-Term Incentive Plan, the
Executive Short-Term Incentive Plan or the short-term incentive plan for
Executive's business unit, as applicable, and any successor plan(s) thereto.
M. "U S WEST" means U S WEST, Inc. and any division, subsidiary,
affiliate, or successor, unless otherwise specifically stated herein.
N. "Waiver & Release" means the waiver and release of claims
against U S WEST and its representatives, in the form attached hereto as
Appendix "A."
O. Solely for purposes of Section II. I. 7. of this Agreement relating
to medical, dental and vision benefits: (i) the phrase "at U S WEST's Expense"
means that, if Executive makes a timely election of COBRA coverage, the U S WEST
company that Executive is employed by immediately prior to his or her Discharge
from Employment will waive the first six (6) months of COBRA premiums and, if
Executive is not eligible at the expiration of the initial six (6) month period
for coverage under another employer's health plan, the U S WEST company
Executive is employed by immediately prior to his or her Discharge from
Employment will provide Executive with a lump sum payment equal to twelve (12)
months of COBRA premiums (less applicable taxes); and (ii) the term "applicable
period" means the eighteen (18) months following the date of Executive's
Discharge from Employment or, if less than eighteen (18) months, the period for
which the U S WEST Health Care Plan is required to extend continuation coverage
under COBRA.
III. COVENANTS
A. Consideration. U S WEST agrees to provide the following to
Executive as consideration for the execution of this Agreement:
1. Current employment at U S WEST;
2. Eligibility for Severance Benefits described in the
Agreement; and
3. Eligibility for benefits under a change of control
agreement as referred to in Section IV. B.
Executive acknowledges that: (1) in the event a Change of
Control occurs and Executive is Discharged from Employment within three (3)
years after such Change of Control, the provisions concerning Severance Payment
and Severance Benefits under this Agreement, or Additional Pay as defined in an
agreement referred to in Section IV B. hereto, are more favorable to Executive
than under any prior severance agreement or change of control agreement between
Executive and U S WEST; and (2) the more favorable provisions concerning
Severance Payment and Severance Benefits provided herein or Additional Pay as
provided in any agreement referred to in Section IV. B. herein constitute full
and sufficient consideration for the execution of this Agreement.
B. Receipt of Severance Benefits.
1. In the event Executive is employed as a Band 1 or Band 2
officer (or any successor designation) on the date on which Executive is
notified of his or her Discharge from Employment, Executive will receive
Severance Benefits only if he or she has complied fully with the Conditions
including, but not limited to, execution and delivery of the Waiver & Release.
Executive agrees that, if provided, the Severance Benefits are provided, in
part, in exchange for the elimination of any obligation of U S WEST to
compensate Executive for the remainder of the term of any Expatriate Agreement
and that Executive is not entitled to any compensation in addition to the
Severance Benefits upon satisfaction of the Conditions. U S WEST will have no
responsibility for any taxes on the Severance Benefits, including no
responsibility to follow the Taxation Methodology approach outlined in any
Expatriate agreement. Executive agrees to indemnify U S WEST and hold U S WEST
harmless for any liability for any taxes due on the Severance Benefits.
Executive will not be entitled to receive Severance Benefits pursuant to this
Agreement if Executive is not Discharged from Employment.
2. In the event (1) Executive accepts a transfer or
reassignment to a position with a company affiliated with U S WEST, Inc. in
which U S WEST, Inc. owns, directly or indirectly, less than 50% of the
outstanding stock and (2) a Change of Control has not occurred, this Agreement
shall terminate on the date on which Executive begins employment with the
affiliated company, with the exception that the provisions concerning Return and
Protection of Company Property and Company Information, Non-solicitation of
Employees, Arbitration of Disputes, Executive Cooperation, and Non-disparagement
shall remain in full force and effect.
3. In the event Executive has executed this Agreement, and is
not a Band 1 or Band 2 officer (or any successor designation) on the date on
which he or she is notified of his or her Discharge From Employment or the date
on which he or she gives notice of intent to Resign or Retire under Certain
Circumstances as the case may be, but was a Band 1 or Band 2 officer (or any
successor designation) at any time during the twelve (12) month period
immediately preceding such date, Executive will be eligible for Severance
Benefits under this Agreement. If Executive is not a Band 1 or Band 2 officer
(or any successor designation) on the date on which he or she is notified of his
or her Discharge From Employment or the date on which he or she gives notice to
Resign or Retire Under Certain Circumstances, and was not a Band 1 or Band 2
officer (or any successor designation) at any time during the twelve (12) month
period immediately preceding such date, Executive will not be eligible for
benefits under this Agreement and will be entitled to severance benefits only
under the terms and conditions set forth in the U S WEST Management Separation
Program or a successor plan or program, if any, if otherwise eligible under the
terms and conditions of that plan or program.
4. If a Change of Control has occurred within the three (3)
years prior to Executive's Discharge from Employment and if, in the opinion of
the tax counsel selected by U S WEST's independent auditors and reasonably
acceptable to the Executive ("Tax Counsel"), any Severance Benefits or any other
payments or benefits received or to be received by Executive -- whether pursuant
to the terms of this Agreement or any other plan, arrangement or agreement with
U S WEST, any person whose actions result in a Change of Control or any person
affiliated with U S WEST or such person -- constitute "Parachute Payments"
within the meaning of Section 280G(b)(2) of the Internal Revenue Code, and in
the opinion of Tax Counsel, are deemed not to be deductible in whole or in part
in the calculation of federal income tax of U S WEST, or any other person or
entity making such payment or providing such coverage or benefit, by reason of
Section 280G of the Internal Revenue Code, the aggregate Severance Benefits
provided hereunder shall, in accordance with applicable law, be reduced to the
extent, and only to the extent, that the aggregate reduced Severance Benefits
are fully deductible to U S WEST for tax purposes by reason of Section 280G of
the Code. All determinations made by Tax Counsel under this Section shall be
binding on U S WEST and Executive and shall be made within thirty (30) days of
the date Executive is notified of his or her Discharge from Employment.
C. Death, Retirement, Disability.
1. In the event of the death, retirement or disability of
Executive, nothing in this Agreement shall be construed to limit or curtail the
right of Executive or, in the case of death, Executive's beneficiaries, to
receive the benefits to which they are entitled under the retirement plans,
disability policies and other applicable plans maintained by U S WEST.
2. In the event Executive is notified of his or her Discharge
from Employment under circumstances that would qualify Executive to receive
Severance Benefits, but Executive dies before he or she has fulfilled the
Conditions, the Severance Benefits will be paid to Executive's estate provided
that the Conditions are satisfied by the estate within ninety (90) calendar days
of Executive's death.
D. Return and Protection of Company Property and Company Information.
1. Within five (5) calendar days after the date on which
Executive's employment terminates for whatever reason, Executive agrees to
return to U S WEST all Company Property and all documents or other tangible
things that contain Company Information.
2. Executive 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 U S WEST, whether or not patentable or
eligible for copyright, that relate to the actual, planned, or foreseeable
business or other activities of U S WEST, or that result from his or her work
for U S WEST, are the exclusive property of U S WEST. Executive agrees to
disclose promptly such property to U S WEST 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 U S WEST, including patents
and copyrights.
Executive agrees to hold in a fiduciary capacity for the
benefit of U S WEST all Company Information. After termination of Executive's
employment with U S WEST, Executive will not, without prior written consent of U
S WEST, communicate or divulge any such information, knowledge or data to anyone
other than U S WEST or its designated representatives.
3. Executive shall comply with the provisions relating to the
return and protection of Company Property and Company Information following the
termination of his or her employment, regardless of whether he or she is
eligible to receive Severance Benefits pursuant to this Agreement.
E. Nonsolicitation of Employees. Executive agrees that he or she will
not for a period of eighteen (18) months immediately following the termination
of his or her employment with U S WEST for any reason, regardless of whether he
or she is eligible to receive Severance Benefits, either on Executive'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 Executive's
termination of employment, is a managerial level employee of U S WEST
(including, but not limited to, any Officer, Executive Director or
director-level employee, or any equivalent or successor term for any such
employee). Should Executive materially breach the provisions of this paragraph,
Executive shall pay to U S WEST one and one half (1.5) times Executive's annual
base salary in effect on Executive's last day of employment. The parties agree
that while the full extent of damages in the event of breach is uncertain, this
sum is not a penalty and would adequately compensate the non-breaching party for
all damages which might be incurred in the event of breach.
F. Arbitration of Disputes.
Executive agrees that any claim, controversy or dispute that
may arise directly or indirectly in connection with Executive employment or
termination of employment with U S WEST, and/or any associated or related
disputes arising therefrom involving U S WEST and/or any employee(s),
Director(s), officer(s), or agent(s) of U S WEST, 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. ss. 1981, ss. 1981a, ss. 1983, ss. 1985, or ss. 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, Executive would otherwise be legally
required to exhaust administrative remedies to obtain legal relief, Executive
can and must exhaust such administrative remedies prior to pursuing arbitration.
The only legal claims between Executive and U S WEST that are not included for
arbitration within this Agreement are claims for workers' compensation or
unemployment compensation benefits. By signing this Agreement, Executive
voluntarily, knowingly and intelligently waive any right Executive may otherwise
have to seek remedies in court or other forums, including the right to a jury
trial. U S WEST also hereby voluntarily, knowingly, and intelligently waives any
right it might otherwise have to seek remedies against Executive in court or
other forums, including the right to a jury trial. The Federal Arbitration Act,
9 U.S.C. xx.xx. 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 Executive and U S WEST 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 Executive's employment with U S
WEST or to the termination of Executive'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 Executive's state
of residence and other than Colorado. Other than as set forth herein, the
arbitrator shall have no authority to add to, 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. Executive 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).
G. Executive Cooperation. As a free and voluntary act, Executive agrees
that, following the termination of his or her employment, regardless of whether
he or she is eligible to receive Severance Benefits , he or she agrees
thereafter to cooperate with, and to make himself or herself available for, any
investigations or lawsuits involving U S WEST. Executive will be paid an hourly
rate computed based on his or her final base salary for time spent at the
request of U S WEST, other than in depositions or at trial for which Executive
will not be paid. Executive agrees not to assist or provide information to any
other party in any litigation against U S WEST, except as required under law or
formal legal process after Executive provides advance notice to U S WEST at
least ten (10) calendar days prior to such assistance or provision of
information (or, if Executive is so required to assist or provide such
information within less than ten (10) calendar days of receipt of such
requirement, after Executive provides timely advance notice to U S WEST) to
allow U S WEST to take legal action with respect to the matter. Nothing in this
Agreement shall restrict or preclude Executive from, or otherwise influence
Executive in, testifying fully and truthfully in legal, administrative, or any
other proceedings involving U S WEST, as required by law or formal legal
process.
H. Indemnification. In the event Executive is Discharged from
Employment, the U S WEST company that Executive is employed by immediately prior
to his or her Discharge from Employment will indemnify Executive to the extent
permitted or authorized by that company's bylaws, on the same basis as the
indemnification provided to other former officers, against all costs, charges
and expenses incurred (including, but not limited to, any judgment entered by a
court of law), in connection with any action, suit or proceeding to which
Executive may be made a party directly resulting from his or her employment as
an officer of U S WEST.
I. Non-disparagement. Executive agrees that, following the termination
of his or her employment, regardless of whether he or she is eligible to receive
Severance Benefits he or she will make no written or oral statements that
directly or indirectly disparage U S WEST in any manner whatsoever, including
but not limited to: (a) the working conditions or employment practices of U S
WEST; or (b) U S WEST as a provider of telecommunications or other products and
services. It will not be a violation of this paragraph for Executive to make
truthful statements, under oath, as required by law or formal legal process.
Should Executive materially breach the provisions of this paragraph, Executive
shall pay to U S WEST one times Executive's annual base salary in effect on
Executive's last day of employment. The parties agree that while the full extent
of damages in the event of breach is uncertain, this sum is not a penalty and
would adequately compensate the non-breaching party for all damages which might
be incurred in the event of breach.
J. Negotiation of Severance Benefits. In the event Executive is
Discharged From Employment, U S WEST and Executive agree that, if negotiations
occur regarding the terms of this Agreement, regardless of whether the
negotiations involve material changes to the Agreement, no consideration period
provided to Executive as set forth in Section II. D. or otherwise will be
extended due to the existence of such negotiations.
IV. ADDITIONAL PROVISIONS
A. Binding Effect. This Agreement shall bind and benefit the heirs,
personal representatives, administrators, successors, subsidiaries, affiliates
and assigns of U S WEST and Executive.
B. Change of Control. If U S WEST, Inc. has offered Executive a
severance agreement providing for benefits in the event of a change of control,
separate and apart from the provisions relating to Change of Control contained
within this Agreement, execution of such Change of Control Agreement is a
condition of this Agreement. In the event that such Change of Control Agreement,
is in force on the date that a "change of control" occurs (as defined in the
Change of Control Agreement), and Executive is entitled to and elects to receive
benefits under the Change of Control Agreement, the terms of the Change of
Control Agreement (including arbitration provisions) shall supersede this
Agreement, whether the Change of Control Agreement was signed prior to or
subsequent to the execution of this Agreement, and Executive will not be
entitled to Severance Benefits under this Agreement.
C. Entire Understanding. This Agreement contains the entire
understanding of the parties with respect to the matters addressed herein and
supersedes all prior representations, understandings and agreements of the
parties with respect thereto, with the following exception: in the event a court
or arbitrator concludes that the arbitration provisions of this Agreement are
unenforceable for any reason, any prior agreement by Executive to submit
employment disputes to arbitration shall remain enforceable. This Agreement may
be modified only by a written agreement executed by both Executive and an
authorized officer of U S WEST.
D. Governing Law. Except as otherwise specifically stated for any
provision of this Agreement, the substantive law of Colorado, shall apply to any
claims between U S WEST and Executive to the extent such law is consistent with
the terms stated herein and to the extent not preempted by ERISA or other
applicable federal law.
E. Notices. All notices and communications required by this Agreement
shall be in writing and delivered by: 1) hand delivery; 2) registered or
certified mail, return receipt requested, postage prepaid; or 3) overnight
mail. All such notices and communications shall be addressed as follows:
To Executive:
-------------------------------
-------------------------------
-------------------------------
To U S WEST:
U S WEST, Inc.
Vice President - Law and Human Resources
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance with this Agreement. Notices and communications shall be
effective when actually received by the addressee.
F. Availability Of Injunctive Relief. U S WEST and Executive agree that
U S WEST would suffer irreparable injury if Executive breached his or her
responsibilities relating to the return and protection of Company Information or
Company Property and that the injury would not be compensable fully in monetary
damages. Accordingly, in the event Executive breaches or threatens to breach
that condition, the arbitration provisions of this Agreement shall not prevent U
S WEST or Executive from obtaining injunctive relief from a court of competent
jurisdiction to enforce the obligations relating to the return and protection of
Company Information or Company Property, pending decision on the merits by the
arbitrator.
G. Waiver Of Breach. The waiver by either U S WEST or Executive of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any prior or subsequent breach by either party.
H. Severability.
1. In case any one or more of the provisions of this Agreement
shall be found to be invalid, illegal or unenforceable for any reason, the
validity, legality and enforceability of the remaining provisions and/or clauses
contained herein shall not in any way be affected or impaired thereby. Any
clause and/or provision that is found to be invalid, illegal or unenforceable
shall be deemed, without further action on the part of the parties hereto, to be
modified, amended and/or limited to the minimum extent necessary to render such
clauses and/or provisions valid and enforceable. A claim by either party that
any provision of this Agreement is invalid, illegal or unenforceable shall be
determined by an arbitrator under the arbitration provisions of this Agreement.
In the event an arbitrator determines that any provision of this Agreement is
invalid, illegal or unenforceable for any reason, it is the mutual desire of the
parties that the arbitrator reform the Agreement to the minimum extent necessary
to render such provision valid and enforceable and direct the parties to comply
with the requirements of this Agreement as modified.
2. The arbitration provisions contained or incorporated in
this Agreement supersede the arbitration provisions contained or incorporated in
any prior agreement between Executive and U S WEST, to the extent such
provisions are inconsistent. The sole exception is that, as provided in Section
IV. B. above, the arbitration provisions contained in any Change of Control
Agreement between U S WEST and Executive, whenever executed, shall supersede any
inconsistent arbitration provisions contained in this Agreement.
I. Expatriate Agreements. This Agreement shall control if there is any
conflict between this Agreement and the terms of any Expatriate Agreement
between Executive and U S WEST, with the exception of any specially negotiated
and duly executed short-term or long-term incentive agreements. Executive agrees
that this Agreement alone provides the only severance benefits, including
compensation, for the Executive in the event of Executive's Discharge from
Employment and supersedes and replaces the obligations of U S WEST in the
"Company initiated termination" provision or similar provisions under any
Expatriate Agreement.
J. Acknowledgments. Executive confirms that:
1. U S WEST has advised Executive to consult legal counsel
before signing this Agreement or the Waiver and Release provided for herein.
2. Executive has reviewed this Agreement in its entirety,
fully understands its meaning and effect, and agrees to its terms.
3. Executive has had a period of at least thirty (30) calendar
days within which to consider this Agreement prior to its execution.
K. Compliance. Executive agrees that he or she shall comply with the
provisions set forth in this Agreement in Section III. D. (Return and Protection
of Company Property and Company Information), III. E. (Nonsolicitation of
Employees), III. F. (Arbitration of Disputes), III. G. (Executive Cooperation),
and III.I. (Non-disparagement) following the termination of his or her
employment for any reason, regardless of whether he or she is eligible to
receive Severance Benefits pursuant to this Agreement.
L. Modification. This Agreement may not be modified except by the Vice
President - Law and Human Resources for U S WEST or his or her successor or
designee. To be effective, such modification must be in a written agreement
signed by the Vice President - Law and Human Resources for U S WEST or his or
her successor or designee.
Executed in duplicate this _____ day of ______________________, 199__.
U S WEST
____________________________________ By _______________________________
EXECUTIVE
Its _______________________________
APPENDIX A
RELEASE
In consideration of the Severance Benefits identified in Section II. I.
of the attached Agreement between Executive and U S WEST, Inc. and its
divisions, subsidiaries, affiliates, and successors, Executive, as a free and
voluntary act, forever releases and discharges U S WEST, Inc., its divisions,
subsidiaries, affiliates, and successors, and the directors, officers,
employees, agents and representatives of all of them (hereinafter "U S WEST"),
of and from any and all debts, obligations, demands, claims, judgments or causes
of action of any kind whatsoever, whether now known or unknown, in tort, in
contract, by statute, or any other basis for compensatory, punitive or other
damages, expenses, reimbursements or costs of any kind, including, but not
limited to, any and all claims, demands, rights and/or causes of action, arising
up to the date of this Release, including those that might arise out of
allegations relating to claimed breach of an alleged oral or written contract,
or related purported employment discrimination or civil rights violations
including, but not limited to, alleged violations of Title VII of the Civil
Rights Act of 1964, as amended; claims under the Civil Rights Act of 1991;
claims under the Age Discrimination in Employment Act of 1967, as amended;
claims under 42 U.S.C. ss. 1981, ss. 1981a, ss. 1983, ss. 1985, or ss. 1988;
claims under the Family and Medical Leave Act of 1993; claims under the
Americans with Disabilities Act of 1990, as amended; claims under the Fair Labor
Standards Act of 1938, as amended; claims under the Employee Retirement Income
Security Act of 1974, as amended; claims under the Colorado Anti-Discrimination
Act; or claims under any other similar federal, state or local law or regulation
that Executive might have or assert against any of said entities or persons by
(1) reason of active employment by U S WEST or any associated or affiliated
company or the termination of said employment relationship and all circumstances
related thereto, or (2) reason of any other matter, case or thing whatsoever
that may have occurred prior to the date of execution of this Release. U S WEST
specifically disclaims any liability to, or for wrongful acts against, Executive
or any other person on the part of itself, its shareholders, subsidiaries,
affiliates, and successors and the directors, officers, employees and agents of
each of them.
NOTICE OF REVOCATION FOR ONLY MINNESOTA RESIDENTS
Executive understands that he or she may rescind (that is, cancel) this
Release within fifteen (15) calendar days of signing it. To be effective,
Executive's rescission must be in writing and delivered to Vice President - Law
and Human Resources, U S WEST, Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
XX 00000, either by mail or by hand delivery within the 15-day period. If by
mail, the rescission must be: (1) postmarked within the 15-day period; (2)
properly addressed; and (3) sent by certified mail, return receipt requested.
NOTICE TO EMPLOYEES (40 YEARS OF AGE OR OLDER)
OF PERIOD TO CONSIDER RELEASE AND OF RIGHT TO REVOKE
Executive acknowledges that he or she has been given at least
twenty-one (21) calendar days to consider this Release and that Executive has
been advised to consult with an attorney prior to signing this Release.
Executive acknowledges that his or her signing of this Release is completely
voluntary.
Executive has the right to revoke (that is, to cancel) this Release
within seven (7) calendar days of signing it by delivering a written statement
of revocation within that seven (7) day period by certified mail to the Vice
President - Law and Human Resources, U S WEST, Inc., 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, XX 00000.
Dated this day of , 19___.
U S WEST EXECUTIVE
By: _________________________ By: ___________________________
Title: ______________________ Title: ________________________
THIS IS A RELEASE -- READ CAREFULLY BEFORE SIGNING.
YOU SHOULD CONSULT WITH AN ATTORNEY.
Your signature is not required on this document until the
time of severance.
