Exhibit 10(u)
FORM OF
EMPLOYMENT AGREEMENT
AGREEMENT, made on this 2nd day of November, 1996, by and between MCI
Communications Corporation, a Delaware corporation (the "Company"), and [Name of
Executive] ("Executive").
RECITALS
WHEREAS, the Company and British Telecommunications plc intend to effect a
merger (the "Merger") pursuant the Agreement and Plan of Merger dated as of
November 3, 1996 (the "Merger Agreement");
WHEREAS, in order to induce Executive to continue serve as an executive
officer of the Company during the period prior to the Merger and as an executive
officer of any parent company thereof (the "Parent") thereafter, the Company
desires to provide Executive with compensation and other benefits on the terms
and conditions set forth in this Agreement;
WHEREAS, Executive is willing to accept such employment and perform
services for the Company and, on and after the date of the Merger, the Parent,
on the terms and conditions hereinafter set forth;
NOW THEREFORE, it is hereby agreed by and between the parties as follows:
1. Employment.
(a) Prior to the Merger, Executive shall serve as [Officer Title] of the
Company and shall have the duties and responsibilities equivalent to those of
[officer title] of corporations of the size, type and nature of the Company.
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(b) On and after the date of the Merger, Executive shall serve as [Officer
Title] of the Parent. In such capacity, Executive will be responsible for Parent
[areas of responsibility] . The offices of [areas of responsibilities] will
report to Executive.
(c) Prior to the Merger, Executive shall report to the [Reporting
Relationship] of the Company. On and after the date of the Merger, Executive
shall report to the [Reporting Relationship] of Parent.
(d) During the Term, and except for illness or incapacity, Executive shall
devote all of his business time, attention, skill and efforts to the business
and affairs of the Company and after the Merger, the Parent, and their
subsidiaries and affiliates; provided, however, that nothing in this Agreement
shall preclude Executive from devoting time during reasonable periods required
for:
(i) serving, in accordance with the Company's policies and with the
prior approval of the Company's Board of Directors, as a director or member
of a committee of any company or organization involving no conflict of
interest with the Company or any of its subsidiaries or affiliates, and as
a director of those companies for which he currently serves as a director.
(ii) delivering lectures and fulfilling speaking engagements,
(iii) engaging in charitable and community activities,
(iv) investing his personal assets in such form and in such manner as
will not violate Section 14, and
(v) other activities that do not otherwise conflict with the
provisions of this Agreement and that are approved in advance by the
Company's Board of Directors.
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(e) Executive's principal place of business shall be in Washington, D.C.,
except that on and after the date of the Merger, Executive shall, to the degree
necessary to perform his duties for the Parent, perform his services in the
principal offices of the Parent in [Primary Office Location (UK or US)].
2. Term of Employment. Executive's term of employment under this Agreement
shall commence on the date hereof (the "Commencement Date") and shall terminate
on the earlier of (i) December 31, 1999 (the "Termination Date") or (ii)
termination of Executive's employment pursuant to this Agreement (alternatively,
the "Term").
3. Compensation.
3.1 Salary. During the Term, the Company (and, where applicable, the
Parent) shall pay Executive a base salary at the rate of $[Base Salary] per
annum, subject to increases (but not decreases) at the discretion of the
Company. The base salary, as increased from time to time, shall be the "Base
Salary" hereunder. Base Salary shall be payable in accordance with the ordinary
payroll practices of the Company (and, where applicable, the Parent), but no
less frequently than monthly.
3.2 Annual Bonus. In addition to his Base Salary, Executive shall be paid
an annual bonus (the "Bonus") for each Company fiscal year ending during the
term of his employment hereunder with a target amount no less than the target
established for Executive's grade on the date hereof (the "Target Bonus") in
accordance with the terms of the Company's annual bonus plan for senior
executives based on performance criteria determined by the
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Company in its reasonable discretion. The Bonus will be paid within 75 days
after the end of the applicable fiscal year of the Company, unless further
deferred by Executive.
3.3 Long Term Incentive Compensation Plans and Programs. Executive shall be
eligible to participate in any long term incentive compensation plan or program
maintained by the Company in which other senior executives of the Company
participate on terms comparable to those applicable to such other senior
executives; provided, that all such programs in existence immediately prior to
the Merger shall be maintained for at least two years following the effective
time of the Merger or be replaced by programs that are no less favorable to
Executive. In addition, Section 5.8 of the Merger Agreement, as it relates to
Executive, is hereby incorporated by reference, so that in the event the Merger
is consummated, Executive shall be entitled to share in the equity grants
described therein.
4. Employee Benefits.
4.1 Employee Benefit Programs, Plans and Practices. The Company shall
provide Executive during the term of his employment hereunder with coverage
under all employee pension and welfare benefit programs, plans and practices
(commensurate with his positions in the Company and to the extent permitted
under any employee benefit plan) in accordance with the terms thereof, which the
Company makes available to its senior executives; provided, that all such
programs, plans and practices in existence immediately prior to the Merger shall
be maintained for at least two years following the effective time of the Merger
or be replaced by programs that are no less favorable to Executive. The Parent
shall also provide appropriate benefit coverage (e.g., medical reimbursement) to
ensure continuity of benefits in respect of Executive's service in the United
Kingdom.
4.2 Vacation and Fringe Benefits. Executive shall be entitled to
twenty-five (25) business days paid vacation in each calendar year, which shall
be taken at such times as
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are consistent with Executive's responsibilities hereunder. In addition,
Executive shall be entitled to the perquisites and other fringe benefits made
available to senior executives of the Company, including, without limitation, a
Company automobile and use of a Company airplane, and, on and after the date of
the Merger, senior executives of the Parent, commensurate with his position with
the Company and the Parent.
5. Expenses. Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this Agreement, including,
without limitation, expenses for travel and similar items related to such duties
and responsibilities. The Company and the Parent shall reimburse Executive for
all such expenses upon presentation by Executive from time to time of
appropriately itemized and approved (consistent with the Company's and Parent's,
as the case may be, policy) accounts of such expenditures. In addition, all
expenses pertaining to lodging and transportation in the United Kingdom related
to Executive's performance of duties in the United Kingdom shall be borne by the
Company or the Parent and shall be tax-effected (i.e., any such reimbursements
shall be grossed-up so as to be received net of any taxes) to Executive.
6. Termination of Employment.
6.1 Compensation Upon Termination of Employment. (a) If, prior to the
Termination Date, Executive's employment shall be terminated by the Company or
the Parent for any reason other than (i) Executive's Disability or (ii) for
Cause, or if during the term hereof, Executive terminates his employment for
Good Reason, the Company and the Parent shall pay or cause to be paid to
Executive a cash amount equal to three times (1.5 times in the event of a
termination by the Executive for Good Reason after December 31, 1998 (a "Final
Year Constructive Termination")) the sum of (x) Executive's Base Salary as in
effect on the date of termination (without regard to any decrease in Base Salary
which could constitute Good
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Reason under this Agreement) and (y) the greater of (A) the average annual bonus
paid to or accrued for Executive by the Company (and, where applicable, the
Parent) in respect of the three calendar years preceding the termination of
employment or (B) the annual bonus paid to or accrued for Executive in respect
of 1995. Such cash amounts shall be paid as follows: the amount attributable to
Base Salary shall be paid over a one-year period (six-month period in the event
of a Final Year Constructive Termination) in equal installments in accordance
with the ordinary payroll practices of the Company (and, where applicable, the
Parent), but no less frequently than monthly, and the amount attributable to the
annual bonus shall be paid in a lump sum within 10 business days following the
termination of Executive's employment.
In addition, Executive shall be entitled to (i) the unpaid portion of his
Base Salary accrued to the date of termination, and any accrued vacation as of
the date of termination; (ii) be paid the unpaid portion of his Bonus accrued
with respect to the last full fiscal year of the Company ended prior to the date
of termination, at such time as the Bonus would otherwise be payable; (iii)
continued medical, dental and life insurance coverage for Executive and
Executive's eligible dependents on the same basis as in effect immediately prior
to Executive's termination of employment (without regard to any decreases in
such benefits which would constitute "Good Reason" under this Agreement) until
the earlier of (A) 36 months (18 months, in the event of a Final Year
Constructive Termination) after Executive's termination of employment or (B) the
commencement of coverage with a subsequent employer, but only to the extent such
coverage duplicates or exceeds the coverage provided by the Company; provided,
however, that with respect to any such continued coverage, the Consolidated
Omnibus Budget and Reconciliation Act of 1985 coverage period shall not run
during the period of continued coverage; (iv) unless otherwise expressly elected
by Executive prior to such termination and as provided in (vi) below, payment,
in a cash lump sum, of all
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amounts deferred by Executive under any non-qualified plan of deferred
compensation maintained by the Company of the Parent (notwithstanding the
payment provisions of any such plan to the contrary); (v) full acceleration of
vesting and exercisability of any equity-based awards (including, but not
limited to, stock options, restricted stock and incentive stock units) granted
to Executive prior to Executive's termination of employment and (vi) 36 months
(18 months, in the event of a Final Year Constructive Termination) of age and
service credit for all purposes under all defined benefit plans of the Company;
provided, however, that to the extent any increase in benefits which would
result from such additional age and service credits cannot be paid under the
terms of any plan, the amount of such increase shall be calculated under the
terms of each such plan and paid to Executive directly by the Company in the
same form and at the same time that the benefits under each such plan would
otherwise be paid. Payments required hereunder shall be made within 10 business
days following the termination of Executive's employment except as otherwise
provided in this Section 6.1.
(b) In the event of the termination of Executive's employment prior to the
Termination Date due to Executive's death or Disability, the Company shall pay
to Executive (or Executive's beneficiaries, if applicable) a lump sum cash
amount equal to (i) the annual rate of Executive's Base Salary as in effect on
the date of termination and (ii) the highest bonus paid to or accrued in respect
of Executive by the Company (and, where applicable, the Parent) during the three
fiscal years preceding the termination of employment. In addition, Executive
shall be entitled to (i) the unpaid portion of his Base Salary accrued to the
date of termination, and any accrued vacation as of the date of termination;
(ii) be paid the unpaid portion of his Bonus accrued with respect to the last
full fiscal year of the Company ended prior to the date of termination, when the
Bonus would otherwise be payable; and (iii) unless otherwise expressly elected
by Executive prior to such termination, payment, in a cash lump
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sum, of all amounts deferred by Executive under any non-qualified plan of
deferred compensation (other than a defined benefit plan) maintained by the
Company or Parent (notwithstanding the payment provisions of any such plans to
the contrary). Payments required hereunder shall be made within 10 business days
following the termination of Executive's employment except as otherwise provided
in this Section 6.1.
(c) If Executive's employment is terminated by the Company or by Parent for
Cause or if Executive resigns from his employment without Good Reason, Executive
shall be entitled to receive: (i) the Base Salary provided for in Section 3.1
accrued through the date of such resignation or termination and any accrued
vacation as of the date of termination; and (ii) the unpaid portion of his Bonus
accrued in respect of the last fiscal year of the Company (or Parent, as the
case may be) prior to the year of termination, when the Bonus would otherwise be
paid.
(d) In the event of any termination of employment hereunder, Executive
shall also receive, when due, any other compensation or benefit payable to him
under any plan, program or arrangement maintained by the Company (or Parent, as
the case may be), other than a severance plan or arrangement.
6.2 Definitions. For purposes of this Agreement, the following definitions
shall apply:
(a) Disability. "Disability" shall mean Executive's absence from the full-
time performance of Executive's duties for a period of 180 consecutive days as a
result of Executive's incapacity due to physical or mental illness.
(b) Cause. For purposes of this Agreement, "Cause" shall mean:
(1) a deliberate and material breach by Executive of his duties and
responsibilities under this Agreement that result in material harm to the
Company or,
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on and after the date of the Merger, the Parent, which breach is (A) either
the product of willful malfeasance or gross neglect, (B) committed in bad
faith or without reasonable belief that such breach is in, or not contrary
to, the best interests of the Company and (C) not remedied within 30 days
after receipt of written notice from the Company specifying such breach;
(2) Executive's willful and material breach of the provisions of
Section 14 of this Agreement which is not remedied within 30 days after
receipt of written notice from the Company specifying such breach; or
(3) Executive's plea of guilty or nolo contendere to, or nonappealable
conviction of, a felony, which conviction or plea causes material damage to
the reputation or financial position of the Company (or the Parent).
Termination of Executive for Cause shall be made by delivery to Executive of a
copy of a resolution duly adopted by the affirmative vote of not less than a
two-thirds majority of the Directors of the Company at a meeting of the Board of
Directors of the Company (or, on and after the date of the Merger, the Parent)
called and held for such purpose (after 30 days prior written notice to
Executive specifying the basis for such termination and the particulars thereof
and reasonable opportunity for Executive to be heard before such Board prior to
such vote), finding that in the reasonable judgment of such Board, the conduct
or event set forth in any of clauses (1) through (3) above has occurred and that
such occurrence warrants Executive's termination.
(c) Good Reason. For purposes of this Agreement, "Good Reason" shall mean
the occurrence of any of the following without Executive's express written
consent:
(1) The assignment to Executive of any duties inconsistent with
the Executive's current (and, after the Merger, post-merger)
positions, duties,
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responsibilities and status with the Company and its subsidiaries, as
set forth herein, a change in Executive's reporting responsibilities,
title or offices, as set forth herein or any removal of Executive from
or failure to elect or re-elect Executive to any position with the
Company or the Parent (including membership on the Board of Directors
of the Company and the Parent) or any subsidiary thereof except in
connection with Executive's promotion or a termination of employment
for Cause;
(2) A reduction in Executive's Base Salary or target annual Bonus
or long- term incentive, as such salary, target Bonus and incentive
may be increased from time to time thereafter;
(3) The failure to continue in effect any employee benefit plan
or compensation plan in which Executive currently participates unless
Executive is provided with participation in other plans that provide
substantially comparable benefits to Executive; or the taking of any
action that would adversely affect Executive's participation in or
reduce Executive's benefits under any such plan;
(4) Any relocation of Executive's principal place of business
from the locations (including the United Kingdom) set forth herein;
(5) Any reduction in fringe benefits and perquisites provided to
Executive;
(6) Any material breach by the Company or the Parent of any
provisions of this Agreement; and
(7) Failure by the Parent expressly to assume, as of the date of
the Merger, all obligations of the Company and the Parent under this
Agreement;
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provided, however, that an event specified in (1), (2), (3), (5) or (6) shall
not constitute "Good Reason" if it is remedied within 30 days after receipt of
written notice from Executive specifying such event.
6.3 Notice of Termination. Any purported termination of Executive's
employment with the Company or the Parent shall be communicated by a 30 day
advance Notice of Termination to Executive, if such termination is by the
Company or the Parent, or to the Parent, if such termination is by Executive.
For purposes of this Agreement, "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provisions so indicated. For purposes of this Agreement, no purported
termination of Executive's employment by the Company or the Parent shall be
effective without such a Notice of Termination having been given.
6.4 Gross Up. (a) In the event it shall be determined that any payment,
benefit or distribution, or any acceleration of vesting (or combination thereof)
by the Company, the Parent or one or more trusts established by the Company or
the Parent for the benefit of its employees, to or for the benefit of Executive
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement, or under the terms of any other plan, program agreement or
arrangement) (a "Payment") would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are incurred by Executive with
respect to such excise tax (such excise tax, together with any such interest and
penalties, hereinafter collectively referred to as the "Excise Tax"), Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by Executive of all taxes (including any interest
or penalties imposed with respect to such taxes),
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including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
(b) Subject to the provisions of Section 6.4(c), all determinations
required to be made under this Section 6.4, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by a
nationally recognized certified public accounting firm as may be designated by
Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Parent and Executive within fifteen (15) business days
after the receipt of notice from Executive that there has been a Payment, or
such earlier time as is requested by the Parent. All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment shall
be paid by the Company to Executive within five (5) days after the receipt of
the Accounting Firm's determination.
(c) As soon as practicable, Executive shall notify the Company in writing
of any claim by the Internal Revenue Service that, if successful, would require
the payment by the Company of the Gross-Up Payment. If the Company notifies
Executive in writing that it desires to contest such claim, Executive shall
cooperate in all reasonable ways with the Company in such contest and the
Company shall be entitled to participate in all proceedings relating to such
claim; provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold Executive harmless, on
an after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 6.4, the Company shall control all proceedings taken in
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connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs Executive to pay such
claim and xxx for a refund, the Company shall advance the amount of such payment
to Executive, on an interest- free basis, and shall indemnify and hold Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and
provided, further, that if Executive is required to extend the statute of
limitations to enable the Company to contest such claim, Executive may limit
this extension solely to such contested amount. The Company's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and Executive shall be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
7. Obligations Absolute. Except as provided in Section 14(d), the
obligations of the Company and the Parent to make the payments to, or other
arrangements with respect to, Executive provided for herein shall be absolute
and unconditional and shall not be reduced by any circumstances, including
without limitation any setoff, counterclaim, recoupment, defense or other right
which the Company may have against Executive or any third party at any time.
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8. No Mitigation. Executive shall not be required to mitigate damages or
the amount of any payment provided for under this Agreement by seeking other
employment or otherwise. No amounts paid to or earned by Executive following his
termination of employment with the Company or the Parent shall reduce or be set
off against any amounts payable to Executive under this Agreement.
9. Dispute Resolution. Any dispute or controversy arising under or in
connection with this Agreement shall be resolved exclusively by arbitration in
Washington D.C. or, at the option of Executive, in the county where Executive
then resides in accordance with the Rules of the American Arbitration
Association then in effect, except that if Executive institutes an action
relating to this Agreement, Executive may, at Executive's option bring such
action in a court of competent jurisdiction. Judgment may be entered on an
arbitrator's award relating to this Agreement in any court having jurisdiction.
10. Legal Fees. The Company shall pay all costs and expenses, including
attorney's fees and disbursements, at least monthly, of Executive in connection
with any legal proceeding (including arbitration) instituted by the Company
relating to the interpretation or enforcement of any provision of this
Agreement. The Company shall pay one half of all costs and expenses, including
attorney's fees and disbursements, at least monthly, of Executive in connection
with any legal proceeding (including arbitration) instituted by Executive
relating to the interpretation or enforcement of any provision of this
Agreement; provided, however, that if Executive prevails on any substantive
issue, the Company shall pay all costs and expenses of Executive. The Company
shall pay prejudgment interest on any judgment obtained by Executive as a result
of such a proceeding, calculated at the prime rate of Chase Bank, as in effect
from time to time, from the date that the payment should have been made to
Executive under this Agreement.
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11. Notices. All notices or communications hereunder shall be in writing,
addressed as follows:
To the Company:
MCI Communications Corporation
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
To the Parent:
British Telecommunications plc
BT Centre
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attn: Xxxxx Xxxxx
To Executive:
MCI Communications Corporation
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Maine
Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third business day after the
actual date of mailing shall constitute the time at which notice was given.
12. Assignment. This Agreement shall be binding upon and inure to the
benefit of the heirs and representatives of Executive and the assigns and
successors of the Company and the Parent, but neither this Agreement nor any
rights or obligations hereunder shall be assignable or otherwise subject to
hypothecation by Executive (except by will or by operation of the laws of
intestate succession) or by the Company or the Parent, except that the
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Company or the Parent must assign this Agreement to any successor (whether by
merger, purchase or otherwise) to all or substantially all of the stock, assets
or businesses of the Company (or the Parent, as the case may be), and shall
require such successor to assume expressly the obligations of the Company
hereunder.
13. Entire Agreement; Modification. This Agreement sets forth the entire
understanding between the parties hereto regarding the subject matter contained
herein. There are no terms, conditions, representations, warranties or covenants
with respect to Executive's employment other than those contained herein. No
term or provision of this Agreement may be amended, waived, released, discharged
or otherwise modified in any respect except in writing and signed by the
parties. No waiver of any breach or default shall constitute a waiver of any
other breach or default, whether of the same or any other covenant or condition
contained herein. A delay or failure to assert any right or breach of this
Agreement shall not be deemed to be a waiver of such right or breach either with
respect to that right or breach or any subsequent right or breach.
14. Nondisclosure of Confidential Information; Non-Competition. (a)
Executive shall not, without the prior written consent of the Parent, use,
divulge, disclose or make accessible to any other person, firm, partnership,
corporation or other entity any Confidential Information pertaining to the
business of the Parent or any of its affiliates, except (i) while employed by
the Company or the Parent, in the business of and for the benefit of the Company
or the Parent, (ii) when required to do so by a court of competent jurisdiction,
by any governmental agency having supervisory authority over the business of the
Company, or by any administrative body or legislative body (including a
committee thereof) with jurisdiction to order Executive to divulge, disclose or
make accessible such information or (iii) to Executive's legal counsel, and,
with respect to the terms of this Agreement, his financial
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advisor. For purposes of this Section 14(a), "Confidential Information" shall
mean non-public information concerning the financial data, strategic business
plans, product development (or other proprietary product data), customer lists,
marketing plans and other non-public, proprietary and confidential information
of the Company, the Parent, or their respective affiliates (the "Restricted
Group") or customers, that, in any case, is not otherwise available to the
public (other than by Executive's breach of the terms hereof).
(b) During the period of his employment hereunder and (i) for the shorter
of (A) one year thereafter or (B) the period ending on December 31, 1999, in the
event of a termination other than a Final Year Constructive Termination, and
(ii) for the period ending six months after the date of termination, in the
event of a Final Year Constructive Termination, Executive agrees that, without
the prior written consent of the Parent, (x) he will not, directly or
indirectly, either as principal, manager, agent, consultant, officer,
stockholder, partner, investor, lender or employee or in any other capacity,
carry on, be engaged in or have any financial interest in, any business which is
in competition with the business of the Parent or the Company or any other
member of the Restricted Group with which Executive has been principally
employed during the term of this Agreement (an "Applicable Group Member") and
(y) he shall not, on his own behalf or on behalf of any person, firm or company,
other than the Restricted Group, solicit for employment any person who has been
employed by the Restricted Group at any time during the 12 months immediately
preceding such solicitation.
(c) For purposes of this Section 14, a business shall be deemed to be in
competition with the Parent, Company or Applicable Group Member if it is
principally involved in the purchase, sale or other dealing in any property or
the rendering of any service purchased, sold, dealt in or rendered by the Parent
or the Company (or any entity which is a successor to or transferee of
substantially all the business of the Parent or the Company) or
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Applicable Group Member as a material part of the business of the Parent Company
or Applicable Group Member within the same geographic area in which the Parent,
Company or Applicable Group Member makes such purchases, sales or dealings or
renders such services. Nothing in this Section 14 shall be construed so as to
preclude Executive from investing in any publicly or privately held company,
provided Executive's beneficial ownership of any class of such company's
securities does not exceed 1% of the outstanding securities of such class.
(d) Executive and the Company agree that this covenant not to compete is a
reasonable covenant under the circumstances, and further agree that if in the
opinion of any court of competent jurisdiction such restraint is not reasonable
in any respect, such court shall have the right, power and authority to excise
or modify such provision or provisions of this covenant as to the court shall
appear not reasonable and to enforce the remainder of the covenant as so
amended. Executive agrees that any breach of the covenants contained in this
Section 14 would irreparably injure the Company and the Parent. Accordingly,
Executive agrees that the Company and the Parent may, in addition to pursuing
any other remedies it may have in law or in equity, withhold payment of any
amounts due hereunder and obtain an injunction against Executive from any court
having jurisdiction over the matter restraining any further violation of this
Agreement by Executive.
15. Beneficiaries; References. Executive shall be entitled to select (and
change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death, and may change such election, in either case by giving the
Company or the Parent written notice thereof. In the event of Executive's death
or a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative. Any reference to the masculine gender in
this
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Agreement shall include, where appropriate, the feminine. Any reference to the
Company in this Agreement shall include, where appropriate to give effect to the
intent of the terms of this Agreement, the Parent.
16. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this Section 16 are in addition to the survivorship provisions of
any other section of this Agreement.
17. Separability. If any provision of this Agreement shall be declared to
be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
18. Governing Law. This Agreement shall be construed, interpreted and
governed in accordance with the laws of the State of New York, without reference
to rules relating to conflicts of law.
19. Indemnification. The Company and Parent shall indemnify Executive for
any actions taken and omitted in his capacity as an officer and director of the
Company, the Parent and their subsidiaries and affiliates and shall provide
expense advances to Executive in connection therewith to the maximum extent
permitted by law. This obligation shall survive this Agreement.
20. Withholding. The Company and the Parent shall be entitled to withhold
from payment any amount of withholding required by law.
19
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original.
By
Xxxxxx X. Xxxxxx
Chief Executive Officer
EXECUTIVE
20
SCHEDULE OF EMPLOYMENT AGREEMENTS NOT FILED AND
MATERIAL DIFFERENCES BETWEEN SUCH AGREEMENTS AND
THE FORM OF AGREEMENT FILED
OFFICER TITLE
---------------------------
SEC. 3.1
PRE POST BASE 1997 RESPONSIBILITY REPORTING
NAME MERGER MERGER SALARY SALARY POST MERGER RELATIONSHIP
Xxxxx Xxxx President, MCI Chief Operating $300,000 $325,000 MCI Systemhouse & Chief Executive Officer
Systemhouse Officer, Parent Syntegra
Systems Integration
Xxxx Xxxxxx Chief Engineering Chief Technology $250,000 $300,000 Global Network Design, Chief Executive Officer
Officer Officer Engineering Development,
Research
Xxxxxxx Xxxxxxxx* Exec. Vice General Counsel and $262,000 $300,000 Regulatory, Public Chief Executive Officer/
President, Deputy Secretary Policy, Litigation, Chief Legal Officer
General Counsel Intellectual Property
Xxxxxxx Xxxxx Exec. Vice Exec. Vice $310,000 $350,000 Global Alliances, Chief Executive Officer
President President, Strategic Strategic Initiatives and
Development Mergers & Acquisitions
& Alliances
Xxxxxxx Maine* Exec. Vice Chief Financial $290,000 $330,000 Treasury, Audit, Chief Executive Officer
President, Chief Officer and Director Comptroller, Tax
Financial Officer
Xxxxxxx Xxxxx President, Chief President, Chief $460,000 $550,000 Marketing, Sales, Chief Executive Officer
Operating Operating Officer Service
Officer
Xxxxxx X. Xxxxxx Chief Executive President, Chief $565,000 $700,000 Chief Executive Officer Board of Directors/
Officer Executive Officer Co-Chairman
and Director
Xxxx X. Xxxxxxx, Xx. Chairman/Co- Co-Chairman and $960,000 $1,000,000 Co-Chairman Board of Directors
Chairman Director
--------
* The standard of "material harm" in the definition of "Cause ' is an amount in
excess of $500,000.
