EXHIBIT 10.25
AGREEMENT
THIS AGREEMENT is entered into between Cellco Partnership (herein the
"Company") and Xxxxxx X. XxXxxx (herein the "Executive"), effective as of the
date of the Stage I closing of the wireless joint venture between Xxxx Atlantic
Corporation and Vodafone AirTouch Plc ("Effective Date"). References to the
"Company" herein shall include Cellco Partnership, any company controlled by or
under common control with Cellco Partnership, any company which subsequent to
the effective date of this Agreement carries on all or substantially all of the
business of Cellco Partnership and affiliates of Cellco Partnership.
WHEREAS, Executive presently is employed by Vodafone AirTouch Plc, an
English public limited company, or a subsidiary or affiliate thereof (herein
"Vodafone"); and
WHEREAS, the Company and Vodafone have entered into a certain Secondment
Agreement (herein the "Secondment Agreement") pursuant to which designated
employees of Vodafone will be seconded to the Company starting on the date of
the Stage I closing of the wireless joint venture between Xxxx Atlantic
Corporation and Vodafone, and continuing for a specified period thereafter
(herein the "Secondment Period"); and
WHEREAS, the Company desires to utilize the services of Executive during
the Secondment Period and to hire Executive as an employee of the Company
thereafter, and Executive desires to render services to the Company during the
Secondment Period and to accept employment by the Company thereafter; and
WHEREAS, one of the purposes of the Company is, through contracts and
other business relationships, to operate a national, unified, wireless
communications business, including without limitation, cellular, PCS, paging
and other CMRS businesses; and
WHEREAS, the services to be rendered by Executive are, and for the
duration of the Secondment Period and the term of this Agreement will continue
to be, of a unique character and of incalculable value to the Company; and
WHEREAS, if Executive were to engage in "competitive activities," as
defined below, during the Secondment Period or the term of this Agreement or in
violation of the restrictions set forth in this Agreement, the Company would
suffer irreparable injury; and
WHEREAS, the success of the Company depends in substantial part on the
competitive advantages afforded by the management and technical skills provided
by Executive; and
WHEREAS, Executive desires to participate in a certain long-term incentive
plan to be designed by the Company (herein the "Plan");
NOW, THEREFORE, the parties hereto, acknowledging the mutual consideration
embodied in the terms and conditions of this Agreement and intending to be
legally bound, hereby agree as follows:
1. Term. Executive agrees to render services to the Company during the
Secondment Period and the Company agrees to accept such services on the terms
set forth herein, subject to the Secondment Agreement. The Executive further
agrees to be employed by the Company and the Company agrees to employ Executive
thereafter, starting on the day after the end of the Secondment Period and
ending three years from the effective date of this Agreement, subject to the
termination provisions set forth in Sections 4 and 5 (herein the "Term"). If at
the expiration of the Term the parties have not entered into a new agreement,
then this Agreement shall be extended on a month-to-month basis, except as
expressly modified by the parties in writing.
2. Duties. During the Secondment Period and the Term (including any
month-to-month extensions of the Term pursuant to Section 1), Executive shall:
(a) faithfully and diligently perform all such acts and duties and furnish
such services as the Company, its Board of Representatives, its Chief Executive
Officer, its Chief Operating Officer, or his or their designees shall direct,
and perform all acts in the ordinary course of the Company's business
reasonably necessary to the advancement of the Company's best interests;
(b) devote his full time, energy and skill to the business of the
Company and to the promotion of the Company's best interests, except during
vacations and other authorized absences; and
(c) comply with all federal, state and local laws and any applicable
foreign laws, and abide by the Company's code of business conduct and other
policies of the Company while discharging his obligations under this Agreement
or otherwise engaging in conduct, whether personal or business-related, which
may impact the Company's business.
3. Compensation.
(a) Executive shall be shall compensated as set forth below for all
services performed by him for the Company, subject to review from time to time
in accordance with the Company's practices for similarly situated executives:
(i) Base salary at the annualized rate of $480,000, payable in
periodic installments by Vodafone during the Secondment Period in
accordance with the Secondment Agreement, and by the Company during the
Term in accordance with its regular payroll practices;
(ii) Short Term Incentive at a target rate of 75% of base salary, in
accordance with Company's Short Term Incentive Plan;
(iii) Amounts due from Vodafone pursuant to that certain employment
agreement entered into between Executive and Vodafone as of June 12, 1997,
and
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pursuant to which Executive shall have a vested entitlement to $310,000 one
year after the effective date of this Agreement, payable in cash with
interest accrued thereon at the same rate paid by the Vodafone AirTouch
deferred compensation plan, as well as a vested entitlement to an
additional $620,000 at the end of the Term hereof (without regard to any
extensions thereof pursuant to Section 1 or otherwise), payable in cash
with interest accrued at the same rate paid by the Vodafone AirTouch
deferred compensation plan; provided, however, that upon the involuntary
termination of Executive's employment for any reason prior to the end of
the Term (without regard to any extensions thereof pursuant to Section 1 or
otherwise), each such amount not theretofore paid shall become immediately
due and payable, with interest; and
(iv) A retention payment in the amount of $465,450, which shall
become due and payable on May 1, 2000 previously granted to Executive
under and pursuant to the terms of the PrimeCo Personal Communications
Special Retention Bonus for Liquidation (June 1, 1999, as amended on
October 15, 1999); and
(v) A retention bonus of $500,000, pursuant to the terms of the
Executive Retention Bonus Plan referred to in and attached to that certain
letter from Xxxxxx X. Xxxxxx to Executive dated February 4, 1998; and
(vi) Continued vesting to grants under the PrimeCo long term
incentive plan, in the same manner as for other PrimeCo executives who are
seconded to or employed by the Company.
(vii) Reimbursement for all reasonable expenses incurred in the
performance of Executive's duties hereunder, including but not limited to
travel, accommodation, entertainment and other similar expenses, in
accordance with the Company's policies and directives from Executive's
superiors;
(viii) Participation during the Secondment Period, if otherwise
eligible, in all individual or group life insurance, health insurance,
accident insurance, disability insurance, vacation and other welfare
benefit plans maintained by Vodafone and heretofore made available to
Executive, and participation during the Term, if otherwise eligible, in
all individual or group life insurance, health insurance, accident
insurance, disability insurance, vacation and other welfare benefit plans
maintained by the Company and provided generally to similarly situated
executives;
(ix) An annual automobile allowance of $9,000.00, paid periodically;
and
(x) Such other additional or special compensation, benefits and
perquisites as the Company may provide from time to time to similarly
situated executives.
(b) During the first year of the Term, the Company shall provide Executive
with a long-term incentive grant equal in value to 500% of Executive's base
salary in 2000. In each of the second and third years after the effective date
of this Agreement, the Company shall provide Executive with additional
long-term incentive grants comparable in value to the value of such grants
provided to similarly situated executives
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based on market conditions and in accordance with the Company's long-term
incentive plan, subject to Board approval. Such grants will be issued not as
compensation for services rendered, but rather as an inducement to Executive to
render services to the Company during the Secondment Period and to enter into
this Agreement thereafter.
4. Termination of Executive's Employment by the Company.
(a) Death or Disability. Executive's secondment to the Company during the
Secondment Period, or his employment by the Company during the Term, will
terminate automatically upon Executive's death or upon Executive's continuing
disability on the date on which his short-term disability benefits expire if at
that time he remains unable, even with reasonable accommodation, to perform the
essential duties and responsibilities he was performing prior to the
commencement of eligibility for such benefits. Termination of employment due to
disability shall not constitute a bar to Executive's eligibility for long-term
disability benefits if Executive would have qualified for such benefits in the
absence of the termination of his employment.
(b) For Cause. The Company may terminate Executive's secondment during the
Secondment Period, or Executive's employment during the Term for Cause, in
writing and without prior notice, for any of the following reasons:
(i) breach by Executive of any of the covenants he makes or material
obligations he assumes under this Agreement; or
(ii) insubordination or failure to perform job responsibilities with
full-time and good-faith efforts; or
(iii) conviction of, or plea of nolo contendere to, criminal charges
(other than a traffic citation or minor misdemeanor), or conduct which
would, if prosecuted, warrant conviction on such charges under a "beyond a
reasonable doubt" standard of proof; or
(iv) material violation of the Company's Employee Code of Conduct or
other policies of the Company, including, by way of example, a violation
of the employer's voucher or expense reimbursement rules; or
(v) conduct which, if it were known by the public, would harm the
reputation of the Company.
(c) Without Cause. The Company may terminate the Executive's secondment
during the Secondment Period, or Executive's employment during the Term, at any
time for any reason other than those set forth in Sections 4(a), 4(b), or 4(d)
in writing and without prior notice. In such case, Executive shall be eligible
to receive liquidated damages as set forth in Section 6(b). In any proceeding
conducted to determine whether Executive's secondment or employment was
terminated for Cause, if the finder of fact determines that Executive's
secondment or employment was terminated other than for Cause, then his
secondment or employment shall be deemed to have been terminated Without Reason
and the remedy shall be limited to liquidated damages as provided in Section
6(b).
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(d) Nonrenewal. The Company may terminate Executive's employment by
providing written notice of its intent not to renew this Agreement for an
additional term of one or more years, in which event Executive's employment
shall terminate as of the last day of the Term (including any month-to-month
extensions pursuant to Section 1), and Executive shall be entitled to
liquidated damages as provided in Section 6(c) hereof.
5. Termination by Executive.
(a) Without Reason. Executive may terminate his services at any time
during the Secondment Period, or his employment at any time during the Term,
Without Reason. Without limiting the meaning of the term "Without Reason," it
shall constitute termination Without Reason if, at the expiration of the Term
(including any month-to-month extensions pursuant to Section 1), Executive
refuses to sign a renewal or extension of this Agreement or a successor
agreement for an additional term of one or more years, provided that such
renewal, extension or successor agreement does not reduce Executive's
then-current base salary or short- or long-term incentive targets.
(b) For Good Reason. Executive may terminate his services at any time
during the Secondment Period, or his employment at any time during the Term,
for Good Reason, but only on 60 days' written notice of intent to resign for
Good Reason. In such case, Executive shall be eligible to receive liquidated
damages on the terms set forth in Section 6(b). Executive shall be deemed to
have Good Reason to terminate his services or his employment if no event has
occurred which would constitute Cause for the Company to terminate his
secondment or his employment, and if any of the following events has occurred
within six months prior to the effective date of the termination:
(i) assignment, without written consent of the Executive, to a
position which involves more than a change in reporting structure, but
also results in materially less authority and responsibility than
immediately before such assignment; or
(ii) reduction in Executive's base salary; or
(iii) reduction in Executive's short- or long-term incentive targets
below the targets of similarly situated executives; or
(iv) "Change in Control," which shall mean (1) a sale or transfer of
more than 50% of the Company's assets to an entity other than Xxxx
Atlantic Corporation or any affiliate or subsidiary or successor thereof
(collectively "BA Corp."), (2) a sale of partnership interests such that
BA Corp. owns less than 50% of the partnership interests in the Company or
(3) a sale of equity interests in the Company following which BA Corp.
owns less than 50% of the common stock of the Company; provided that as a
result of (1), (2) or (3) BA Corp. ceases to have actual management
control of the Company; and provided further, that neither (1), nor (2)
nor (3) shall constitute a "Change in Control" if the transaction at issue
is an initial public offering. "Actual management control" shall mean the
possession, direct or indirect, of the power to direct or cause the
direction of the management of the Company as it may be constituted
following the event described in (1), (2) or (3) above (including, without
limitation, the power to appoint a majority of the Board of
Representatives or other
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comparable governing body of such entity), whether through the beneficial
ownership of voting securities or other ownership interest, by contract or
otherwise, whether the loss of actual management control is voluntary or
involuntary or the result of any merger, tender offer, stock purchase,
other stock acquisition, merger, consolidation, recapitalization, reverse
split, or sale or transfer of assets.
(c) Upon Expiration of This Agreement. The Executive may terminate his
employment if within 90 days after the expiration of the Term, the Company (i)
does not offer a renewal, extension or successor agreement for an additional
term of one or more years, or (ii) offers a renewal, extension or successor
agreement which reduces Executive's then-current base salary or short- or
long-term incentive targets. In such case, Executive shall be eligible to
receive liquidated damages on the terms set forth in Section 6(c).
6. Post-Termination Liquidated Damages Payable by the Company.
(a) If the Company terminates Executive's secondment or employment for
Cause or by reason of disability or death, or if Executive terminates his
secondment or his employment Without Reason, then the Company shall have no
further obligations to Executive beyond the date of termination, other than to
provide compensation owed for services previously rendered pursuant to Section
3(a); provided, however, that if the termination of Executive's employment is
by reason of disability or death, then Executive (in the case of disability) or
Executive's executor or administrator (in the case of death) may exercise
Executive's vested long term incentive grants pursuant to the terms of the
long-term incentive plan, in accordance with the following formula: number of
options per grant multiplied by the number of months Executive was seconded
and/or employed between the date of the grant and the date of Executive's last
day of employment, divided by 36.
(b) If the Company terminates Executive's secondment or employment Without
Cause, or if Executive terminates his secondment or employment with Good Reason
on proper notice, the Company shall provide to Executive, as liquidated
damages, (i) an amount equal to 150% of Executive's annualized base salary and
short-term incentive target at the time of termination, payable in 18 equal
monthly installments, subject to required payroll deductions, and (ii)
continued participation in the applicable medical and dental insurance plans
for 18 months, at the Company's expense but subject to any employee
contribution requirements applicable as of Executive's last day of active
employment (as such requirements may thereafter be revised generally from time
to time). Payment of such liquidated damages shall not be deemed compensation
for prior services rendered, but rather shall be deemed a settlement of the
parties' obligations to each other, as provided below. In addition, Executive's
unvested long-term incentive grants shall vest in accordance with the following
formula: number of options per grant multiplied by the number of months
Executive was seconded and/or employed between the date of the grant and the
date of Executive's last day of employment, divided by 36. The time when
options so vested may be exercised shall be determined by reference to the
terms of the long-term incentive plan. Company also shall pay Executive cash in
lieu of accrued but unused
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vacation days, at a daily rate equal to 1/260th of Executive's annualized base
salary rate.
(c) If Executive's employment is terminated by the Company pursuant to
Subsection 4(d) or by Executive pursuant to Subsection 5(c), the Company shall
provide to Executive, as liquidated damages, an amount equal to (i) 100% of
Executive's annualized base salary and short-term incentive target at the time
of termination, payable in 12 equal monthly installments, subject to required
payroll deductions, and (ii) continued participation in the Company's medical
and dental insurance plans for 12 months, at the Company's expense but subject
to any employee contribution requirements applicable as of Executive's last day
of active employment (as such requirements may thereafter be revised generally
from time to time). Payment of such liquidated damages shall not be deemed
compensation for prior services rendered, but rather shall be deemed a
settlement of the parties' obligations to each other, as provided below. In
addition, Executive's unvested long-term incentive grants shall vest in
accordance with the terms of the long-term incentive plan. Company also shall
pay Executive cash in lieu of accrued but unused vacation days, at a daily rate
equal to 1/260th of Executive's annualized base salary rate.
(d) (i) Liquidated damages under Sections 6(b) or 6(c) shall not be
payable if the Executive is in breach of this Agreement at the time of the
termination of his employment.
(ii) Upon Executive's breach of any of his covenants or continuing
obligations under Sections 7 through 10 of this Agreement, Executive's right,
if any, to payment of liquidated damages after the date of such breach shall be
forfeited.
(e) Executive's right to liquidated damages hereunder shall be conditioned
on his agreeing to and executing, within the time specified by the Company, a
release in such form as reasonably may be required by the Company. The Company
shall have no obligation to pay liquidated damages unless and until such
release is signed. The validity and enforceability of such release shall not be
impaired if, after signing it, Executive's right to continued payment of
liquidated damages is forfeited pursuant to Section 6(d)(ii).
(f) Liquidated damages hereunder shall be in lieu of any right Executive
otherwise may have to receive benefits under any severance or separation pay
plan, program or practice which may otherwise be applicable to him, and he
hereby waives any right to receive any such severance benefits.
7. Prohibition Against Competitive Activities.
(a) Covenant Not to Engage in Competitive Activities. Executive
acknowledges that by virtue of his secondment to and employment by the Company,
he will obtain knowledge, training, experience and access to the Company's
proprietary and confidential information to such an extent that if he were to
work for or otherwise provide services to a competitor of the Company, that
competitor inevitably would gain an unfair competitive advantage by means of
its access to Executive's knowledge, training, experience and familiarity with
the Company. Therefore, in consideration for (i)
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the offer of this Agreement for a specific term, (ii) the right to
post-termination liquidated damages on the terms provided in Section 6, and
(iii) the opportunity to participate in the Company's long-term incentive plan,
Executive covenants to the fullest extent permitted by law that (i) he will not
engage in Competitive Activities (as that term is defined in Section 7(b))
while he remains seconded to or employed by the Company, and (ii) he will not
engage in Competitive Activities until one year after the date of any
termination of his secondment prior to the last day of the Secondment Period
(or, if he becomes employed by the Company, until one year after the date of
termination of his employment for any reason) and, in the case of activities
described in Section 7(b)(iii), until two years after the date of any
termination of his secondment prior to the last date of the Secondment Period
(or, if he becomes employed by the Company, until two years after the date of
termination of his employment for any reason).
(b) Competitive Activities Defined. For purposes of this Agreement,
"Competitive Activities" means business activities in the wireless
communications industry within or adjacent to the Company's geographic
footprint relating to products or services of the same or similar type as those
of the Company (including products or services the Company planned to offer in
accordance with any Business Plan approved by the Board of Representatives
prior to the termination of Executive's employment); provided, however, that it
shall not be considered Competitive Activity for Executive to accept employment
by any entity which is contributing assets to the Company or any affiliate of
such entity. Restricted activities include, but are not limited to:
(i) personally working for, owning, managing, operating, controlling
or participating in the ownership, management, operation or control of, or
providing consulting or advisory services to, any business engaged in
Competitive Activities; provided, however, that Executive's purchase or
holding of securities of a publicly-traded company, for investment
purposes, shall not be prohibited so long as Executive's equity interest
in any such company is less than one percent;
(ii) maintaining any appreciable financial interest in any business
engaged in Competitive Activities;
(iii) soliciting, inducing or influencing employees of the Company or
former employees who have worked for the Company within the preceding six
months to engage in Competitive Activities;
(iv) interfering with the relationship of the Employer with any of
its customers, agents, representatives, suppliers or vendors under
contract; and
(v) engaging in or planning to engage in Competitive Activities
while still seconded to or employed by the Company.
(c) Forfeiture of Benefits. Executive acknowledges that any violation of
any of the covenants of this Section 7 may result in the forfeiture of rights
to benefits or compensation under one or more benefit or compensation plans of
the Company which contain such forfeiture provisions, and will result in his
obligation to pay liquidated damages as provided in Section 11.
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8. Prohibition Against Disclosure of Proprietary Information; Intellectual
Property Rights.
(a) Duty to Preserve Confidentiality. Executive acknowledges that he will
be privy to strategic and sensitive business information, and that he will have
access to confidential and proprietary information of the Company. Therefore,
during the course of Executive's secondment and employment and after such
secondment or employment ends for any reason, (i) Executive will treat with
utmost confidentiality all such strategic and sensitive business information
and all such confidential and proprietary information (including, without
limitation, "Proprietary Information" as that term is defined in Section 8(b)
below), and (ii) except as required to conduct the business of the Company or
as authorized in writing by the Company, Executive will not publish, disclose
or use such information or authorize anyone else to publish, disclose or use
it. Executive acknowledges that, in addition to his duties under this
Agreement, he has common law and statutory duties as an employee to preserve
the confidentiality of the Company's trade secrets, and will continue to have
such duties after his secondment or employment terminates for any reason.
(b) Definition of Proprietary Information. "Proprietary information"
includes, but is not limited to, information in the possession or control of
the Company that has not been fully disclosed in a writing which has been
generally circulated to the public at large, and which gives the Company an
opportunity to obtain or maintain advantages over its current and potential
competitions. "Proprietary information" includes, without limitation,
(i) marketing plans, strategic or tactical business plans, product
plans and designs, undisclosed financial data, agreements with third
parties, technical information, computer software or other apparatus
programs, databases, budgets and projections, whether in draft or final
form:
(ii) ideas, processes, methods, techniques, systems, patented or
copyrighted information, models, devices, programs, computer software or
related information and documentation;
(iii) documents relating to regulatory matters and correspondence
with governmental entities, including classified National Security
information;
(iv) pricing and cost data;
(v) reports and analyses of business prospects;
(vi) business transactions which are contemplated or planned;
(vii) research data;
(viii) employee information and data, including knowledge of skills,
abilities, performance and compensation;
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(ix) information relating to specific users and purchasers of the
Company's products or services or to such users and purchasers generally,
such as customer names, customer contacts, terms of customer contracts,
customer proposals, types, locations, and quantities of service, calling
patterns and billing information; and
(x) other confidential matters pertaining to or known by the
Company, including information that is proprietary to others which the
Company is bound to protect, such as vendor or customer proprietary
information or information provided in conjunction with non-disclosure or
confidentiality agreements with third parties.
(c) Obligation to Return Company Property. Upon the termination of
Executive's secondment or employment for any reason, and prior to his last day
of active secondment or employment, he shall return to the Company all property
of the Company in his possession, custody and control, including without
limitation, the originals and all copies of all records, papers, programs,
computer software, documents and other materials which contain Proprietary
Information, as defined in Section 8(b), and all computer and other equipment
of the Company.
(d) Intellectual Property.
(i) Executive will promptly disclose to the Company, in confidence,
all inventions, discoveries, designs, improvements, technical information,
ideas, databases, computer software or other apparatus programs, related
documentation, and other works of original authorship, whether or not
patentable, copyrightable or susceptible to other forms of protection,
which he makes, creates, develops, writes or conceives during the course
of his secondment or employment by the Company (hereinafter,
"Innovations").
(ii) Executive hereby assigns and grants to the Company all rights,
title and interest in and to all Innovations. On request by the Company,
Executive will execute a specific assignment to the Company of all rights,
title and interest to any particular Innovation or group of Innovations,
and will execute all applications for patent, copyright or other forms of
protection for such Innovations in the United States and in other
countries.
(iii) An Innovation will be deemed not to have been made in the
course of Executive's secondment to or employment by the Company if it (1)
was developed on his own time and (2) no equipment, supplies, facilities
or trade secret information of the Company were used in developing it.
However, even if an Innovation was developed entirely on Executive's own
time, and even if no equipment, supplies, facilities or trade secret
information of the Company were used in developing it, an Innovation shall
be deemed to have been made in the course of Executive's secondment or
employment if at the time of its conception or reduction to practice it
related to the Company's business or to the Company's actual or
demonstrably anticipated research or development, or if it resulted from
any work that Executive performed for the Company.
(iv) During the course of Executive's secondment or employment and
after such secondment or employment ends for any reason, (1) Executive
will treat with
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utmost confidentiality all Innovations and all private, trade secret and
proprietary information concerning them, and (2) except as required by the
conduct of the business of the Company or as authorized in writing by the
Company, Executive will not publish, disclose or use such information or
authorize anyone else to publish, disclose or use it. When Executive's
secondment or employment terminates, he will relinquish all documents,
equipment and records containing such information to the Company,
regardless of its form.
(e) Forfeiture of Benefits. Executive acknowledges that violation of any
of the prohibitions or covenants of this Section 8 may result in the forfeiture
of rights to benefits or compensation under one or more benefit or compensation
plans of the Company which contain such forfeiture provisions, and will result
in his obligation to pay liquidated damages as provided in Section 11.
9. Confidentiality. Executive agrees not to disclose or discuss, other than
with his legal counsel, personal tax or financial advisors, or spouse, either
the existence or any details of this Agreement. Executive will use his best
efforts to ensure that any such legal counsel, personal tax or financial
advisor, or spouse will not disclose or discuss the existence or any details of
this Agreement with any other person. This Agreement shall not prohibit the
Executive from disclosing to any person that he has agreed not to compete with
the Company and that he has legal duties not to disclose the Company's
proprietary information. Executive is hereby authorized to reveal to a
prospective employer or prospective client or business associate the precise
terms of Sections 7, 8(a) and (b), 11(b) and 12 hereof, but in so doing,
Executive shall not reveal any other parts of this Agreement.
10. Duty to Disclose Acceptance of Offers of Employment by Other Employers.
Executive acknowledges that the Company has an ongoing interest in knowing
whether any of its employees, former employees or employees who have been
seconded to it who have, or had, access to proprietary or confidential
information intend to provide services as an employee, consultant or in any
other capacity to an entity which the Company considers to be a competitor or
potential competitor. Accordingly, during the period of Executive's secondment
to and employment by the Company, Executive shall give written notice to the
Company of his intention to accept employment with any employer other than the
Company, not later than the date on which he gives his written or oral
acceptance of an offer of employment, or offer of compensation in exchange for
advice, information or consulting services. That notice shall state the name of
the offering entity, the role or position accepted and a brief summary of the
responsibilities, the geographic location and scope of that role or position.
11. The Company's Remedies for Breach of Agreement
(a) Liquidated Damages Payable by Executive upon Resignation. Executive
recognizes that his services to the Company are of the highest value to the
Company, that his services cannot be easily replaced in the event he terminates
his secondment at any time during the Secondment Period or his employment prior
to the end of the Term, and that the loss of Executive's services would cause
damages to the Company's operations which are substantial but not readily
calculable. Therefore,
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Executive warrants that if he terminates his secondment at any time during the
Secondment Period or his employment before expiration of the Term other than
for Good Reason, he shall pay the Company as liquidated damages an amount equal
to 100% of the Executive's pre-tax gain from the exercise of any long-term
incentive grants issued in 2000 to Executive by the Company. Such sum shall be
payable in a single lump amount which shall be immediately due and payable on
demand following the termination of Executive's secondment prior to the end of
the Secondment Period or his employment during the Term. In addition,
Executive's right to exercise any long-term incentive grants issued in 2000 to
Executive by the Company which have not yet been exercised shall be
extinguished as of the last day of his active secondment or employment.
(b) Liquidated Damages for Breach of Covenants Under Sections 7 or 8.
Executive acknowledges that his breach any of his covenants under Sections 7 or
8 of this Agreement would cause substantial damages to the Company that are not
readily calculable. Accordingly, in the event of such a breach, Executive
agrees to pay to the Company as liquidated damages an amount equal to the sum
of his annualized base salary and short-term incentive target in effect at the
time of the breach. In addition, (i) as provided in Section 6(d), Executive's
right to any payments under Sections 6(b) or 6(c) which have not yet been made
shall be extinguished and no further such payments shall be due, (ii) he shall
return to the Company all payments under Sections 6(b) or 6(c) which
theretofore shall have been provided to him (except that Executive shall retain
$100 of such sum as consideration for the release executed pursuant to Section
6(e)), (iii) all of his grants under any long-term incentive plan which have
not yet vested or which have vested but not yet been exercised shall be
extinguished immediately, and (iv) Executive shall owe to the Company all
pre-tax gain derived from the exercise of any long-term incentive grants during
the six months preceding the breach. Executive promptly shall pay to the
Company the sum of all amounts to be paid pursuant to this Section 11(b), in a
single lump amount which shall be due immediately and payable on demand
following the breach.
(c) Injunctive Relief. Executive acknowledges that if he breaches his
covenants under Sections 7 and 8 of this Agreement, competitors of the Company
will gain the value of the Executive's services to the detriment of the
Company, and that the Company thereby will suffer irreparable injury. In the
event of a breach of any of his covenants under Sections 7 or 8, whether or not
Executive is still seconded to or employed by the Company at the time of such
breach, to the extent permitted by law the Company shall be entitled, in
addition to causing the Executive to forfeit benefits as described in Sections
7(c) and 8(e), and in addition to liquidated damages payable under Section
11(b) and any other remedies available at law, to injunctive relief to restrain
further breach of such commitments by the Executive or by any person acting for
or with him in any capacity whatsoever.
12. Arbitration. In the event that (a) Executive believes that the Company has
breached any provision of this Agreement or otherwise has violated his rights
in connection with his secondment to or employment by the Company, the manner
in which he was treated while so seconded or employed or the termination of his
secondment or employment, or if he believes that the Company violated his
rights under
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any common law theory of liability or any applicable federal, state or local
law, statute, regulation or ordinance (including without limitation 42 U.S.C.
Section 1981, Title VII of the Civil Rights Act of 1964, the Age Discrimination
in Employment Act and any other state or federal statute that pertains to
employee rights or discrimination in employment), or (b) the Company believes
that Executive has breached any provision of this Agreement or otherwise has
violated its rights in connection with his secondment to or employment by the
Company, the dispute may be submitted to the American Arbitration Association
in New York or any other state mutually agreeable to all parties, for
arbitration pursuant to its rules and procedures for resolution of employment
disputes. The arbitrator shall not have the power to declare or treat any
provision of this Agreement as void or unenforceable. The arbitrator shall
include in the award the prevailing party's costs and expenses (including
reasonable attorneys' fees and expert witness fees) incurred in connection with
the proceedings. The decision of the arbitrator shall be final and binding.
Executive understands and agrees that this provision constitutes a waiver of
his right to initiate a proceeding before an administrative tribunal seeking
relief for himself and to xxx in any court of law or equity, and that the sole
forum available to him for resolution of disputes between himself and the
Company is arbitration as provided herein. The parties intend that the
arbitration procedure to which they hereby agree shall be the exclusive means
for resolving all disputes between them, and their agreement in this regard
shall be interpreted as broadly and inclusively as reason permits to realize
that intent; provided, however, that nothing herein shall be considered a
waiver of either party's right to seek a temporary restraining order or
injunction from a court for purposes of preserving the status quo or preventing
irreparable harm pending decision by an arbitrator.
13. Miscellaneous Provisions.
(a) Assignment by the Company. The Company expressly reserves the
right to assign this Agreement. If and when the Executive transfers from the
Company to another employer pursuant to such assignment, this Agreement shall
be deemed to be assigned to the transferee employer in lieu of the Company.
This Agreement may not be assigned by the Executive.
(b) Waiver. The waiver by any Company of a breach by the Executive of any
provision of this Agreement shall not be construed as a waiver of any
subsequent breach by him.
(c) Executive's Warranty. Executive warrants and represents that his
acceptance of secondment to or employment by the Company on the terms offered
will not breach any contractual or other obligation he has to any third party,
and that he will neither bring to the Company confidential or proprietary
information or documents of any third party (other than a third party
contributing assets to the Company), including any former employer, nor use or
disclose any confidential or proprietary information of any third party without
such third party's written authorization.
(d) Severability. If any clause, phrase or provision of this Agreement
(including, without limitation, Section 12), or the application thereof to any
person or circumstance, shall be deemed invalid or unenforceable by any court
of competent
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jurisdiction, such event shall not affect or render invalid or unenforceable
the remainder of this Agreement and shall not affect the application of any
clause, phrase or provision hereof to other persons or circumstances. Further,
if an arbitrator or court of competent jurisdiction determines that the
geographic scope, duration or any other features of the covenants and
commitments set forth in Sections 7 and 8 are not enforceable as drafted, this
Agreement shall hereby be deemed to be amended automatically to provide the
maximum enforcement thereof permitted by law.
(e) Gender. All pronouns used in this Agreement are in the masculine
gender solely for purposes of grammatical convenience, and it is the parties'
intent that all pronouns used herein are intended to comprehend both genders as
warranted by context or by the gender of the Executive.
(f) Governing Law. The parties acknowledge that the services to be
performed by Executive pursuant to this Agreement will be rendered in a number
of different states, and that the Company has a special interest in having its
agreements with employees in different places construed according to the same
law because it conducts operations throughout the entire United States.
Accordingly, the parties have chosen the State where the Company's headquarters
are located as a reasonable jurisdiction for choice of law, and therefore agree
that this Agreement shall be construed and enforced in accordance with the laws
of the State of New York, without regard to choice of law principles.
(g) Notices. Whenever this Agreement requires or permits notice to be
given to the Company, the notice should be given in writing to the Chief
Executive Officer of the Company, or to such other person as the Company may
subsequently identify in writing to Executive.
(h) Entire Agreement.
(i) Except for the terms and conditions of the compensation and
benefit plans applicable to Executive (as such plans may be amended by the
Company from time to time) and except for the Secondment Agreement, this
Agreement sets forth the entire understanding of the parties and
supersedes all prior agreements, arrangements, and communications, whether
written or oral, pertaining to the subject matter hereof, including
without limitation any employment agreement previously entered into
between Executive and the Company. This Agreement shall not negate (A) any
retention agreement relating to the proposed merger between BAC and GTE;
(B) any benefits previously earned or rights granted under any long-term
incentive plan; (C) any other benefits maintained by any other entity that
are not duplicative in nature of any benefits provided under this
Agreement; or (D) any obligations that the Executive may have under any
non-compete, proprietary information or intellectual property agreement
with any entity that is contributing assets to the Company or any
affiliate of such entity. Any such rights, benefits or obligations shall
be determined in accordance with the terms of such agreements or plans.
This Agreement shall not be modified or amended except by written
agreement of the Company, the Executive, and the Company which then
employs him.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby execute this Agreement.
Cellco Partnership
By: /s/ Xxxxx Xxxxxx
-----------------------------
___________________________ Chief Executive Officer
Date
4/14/00 Xxxxxx X. Xx Xxxx
___________________________ _________________________________
Date Executive
