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EXHIBIT 10.14
SEPARATION AGREEMENT AND GENERAL RELEASE
This Agreement is by and between GTE Service Corporation (the "Company") and
Xxxxx Der Xxxxxxxxxxx ("Der Xxxxxxxxxxx").
PART I
In consideration of the provisions in Part II, the Company agrees as
follows:
1. Der Xxxxxxxxxxx will be eligible for:
(a) A Transaction Completion Bonus, subject to the terms of
(including, but not limited to, the covenants prohibiting solicitation of GTE
customers and solicitation or hiring of GTE employees), and calculated as
described in, paragraph B(1)(b) of Xxxxxx Xxxxx'x January 22, 1999 letter (the
"January 1999 Letter Agreement"), including, for purposes of such calculation,
the sales prices obtained for both the sale of Government Systems to General
Dynamics and the sale of ISD;
(b) A payment under the GTE Corporation 1997 Executive Incentive
Plan ("EIP") for the 1999 Plan Year, provided that such payment will be governed
by the terms of the EIP and will be in an amount determined by, and subject to
the approval of, the Executive Compensation and Organizational Structure
Committee of the Board of Directors or its designee (the "ECC");
(c) A prorated Performance Bonus (12/36ths) under the GTE
Corporation 1997 Long-Term Incentive Plan for the 1999-2001 Award Cycle,
provided that, except as specifically limited by the following sentence, such
payment will be governed by the terms of the LTIP and the relevant Performance
Bonus Agreement (including, but not limited to, those provisions in paragraph
7(a) which provide for non-payment of the award in the event the participant
engages in any business that is directly or indirectly competitive with or
detrimental to the interests of GTE) and will be in an amount determined by, and
subject to the approval of, the ECC. Notwithstanding the foregoing, Section 8
("Payment after Change in Control") of the Performance Bonus Agreement for the
1999-2001 Award Cycle shall not be applicable, under any circumstances, to any
payment made pursuant to this paragraph, and, thus, Der Xxxxxxxxxxx will not be
eligible to receive the Target Payment provided for by Section 8.
Any payment under this section shall be made at the same time
payments are made to other participants in the governing plans, where
applicable. Der Xxxxxxxxxxx will not be eligible to defer any portion of, and
will not be eligible for an Equity Participation Program match on, any portion
of such payments.
2. By making this Agreement, the Company does not admit that it has
done anything wrong, and the Company specifically states that it has not
committed any tort, breach of contract, or violation of any federal, state, or
local statute or ordinance.
PART II
In consideration of the provisions in Part I, Der Xxxxxxxxxxx agrees as
follows:
1. Effective December 31, 1999, Der Xxxxxxxxxxx irrevocably resigns
from his position with the Company and from any officer, director, or other
positions he holds for GTE Corporation or any of its affiliates, and from any
internal or external Boards where he represents GTE (as defined in paragraph 3
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below). Der Xxxxxxxxxxx agrees not to seek reinstatement, recall, or future
employment with GTE on or after the date of this Agreement.
Der Xxxxxxxxxxx agrees that GTE retains the right to make future organizational
changes, including but not limited to the right to combine, create, and/or fill
positions, including, but not limited to, his former position. He agrees,
further, that he is not eligible for and will not seek an alternative position
with GTE (as defined in paragraph 3 below) prior to his separation from
employment.
2. Der Xxxxxxxxxxx agrees and understands that the payments described
in Part I, paragraph 1 above are more than any payments or benefits due to him
under the Company's policies or practices. Except as relating to severance
benefits available to him under his Executive Severance Agreement dated June 4,
1998 and the Transaction Completion Bonus provided for under his January 1999
Letter Agreement, Der Xxxxxxxxxxx waives and forever discharges GTE (as defined
in paragraph 3 below) from any liability to provide any notice of termination,
including but not limited to any notice under the Worker Adjustment and
Retraining Notification Act, or to pay any additional salary continuance,
separation pay, severance pay, retention bonus, or pay, retirement incentive, or
payments or benefits arising under any other plan, policy, practice, or program
(offered on a qualified or non-qualified or voluntary or involuntary basis)
which may have been payable as a result of the termination of his employment,
except as provided in paragraph 3 below. Der Xxxxxxxxxxx agrees that, should the
Company offer any retirement incentive, early retirement, or voluntary
separation program on or after the date of this Agreement, he shall not be
eligible to participate. In addition, Der Xxxxxxxxxxx has not relied on any
statement, agreement, or promise of eligibility for any benefits, other than
those set forth in this Agreement.
3. Der Xxxxxxxxxxx agrees to release GTE Service Corporation, GTE
Corporation, any related and affiliated companies, and their successors
(including, after the merger, Xxxx Atlantic Corporation and any affiliated
companies), and any and all current, former and future directors, employees,
officers, agents, and contractors of these companies, and any and all employee
pension or welfare benefit plans of these companies, including current and
former trustees and administrators of these plans (the entities and persons
referenced above are collectively referred to in this Agreement as "GTE") from
all known and unknown claims, charges, or demands Der Xxxxxxxxxxx may have based
on his employment with GTE or the termination of that employment, including a
release of any rights or claims Der Xxxxxxxxxxx may have under the Age
Discrimination in Employment Act ("ADEA"), which prohibits age discrimination in
employment; Title VII of the Civil Rights Act of 1964, and the Civil Rights Act
of 1991, which prohibit discrimination in employment based on race, color, sex,
religion, and national origin; the Americans with Disabilities Act, which
prohibits discrimination based upon disability; Section 1981 of the Civil Rights
Act of 1866, which prohibits discrimination based on race; the Employee
Retirement Income Security Act, which governs employee benefits; any state laws
against discrimination; or any other federal, state, or local statute or common
law relating to employment. This includes a release by Der Xxxxxxxxxxx of any
claims for wrongful discharge, breach of contract, employment-related torts, or
any other claims in any way related to Der Xxxxxxxxxxx'x employment with GTE or
the termination of that employment.
This release does not include, however, a waiver of any right Der Xxxxxxxxxxx
may have to vested benefits under any pension or savings plan, Worker's
Compensation, pay for banked and accrued (but unused) vacation or personal
holidays, unemployment compensation, any severance payments under his June 4,
1998 Executive Severance Agreement, any consulting fees to which Der Xxxxxxxxxxx
may become entitled under J. Xxxxxxx XxxXxxxxx'x December 14, 1999 letter, or
the Transaction Completion Bonus provided for by his January 1999 Letter
Agreement.
4. Der Xxxxxxxxxxx has not filed and promises not to file, or permit to
be filed on his behalf, any lawsuit or complaint against GTE regarding the
claims released in Part II, paragraph 3 above; provided, however, that nothing
herein shall limit Der Xxxxxxxxxxx'x right to file a charge of discrimination
with the Equal Employment Opportunity Commission or any state fair employment
practice agency. Der Xxxxxxxxxxx
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also promises to opt out of and to take such other steps as he has the power to
take to disassociate himself from any class seeking relief against GTE regarding
any claims released in Part II, paragraph 3. If a court, administrative agency,
arbitrator, or any other decision maker with authority awards Der Xxxxxxxxxxx
money damages or other relief, with respect to claims released in Part II,
paragraph 3, Der Xxxxxxxxxxx hereby assigns to the Company all rights and
interest in such money damages and other relief.
5. Der Xxxxxxxxxxx agrees not to disclose the terms of this Agreement,
that this Agreement exists, or that he received any payments from the Company to
anyone except his attorney, his financial planner, or his immediate family
(spouse, children, siblings, parents). If he does disclose the terms of this
Agreement to his immediate family, his financial planner, or his attorney, he
will advise them that they must not disclose the terms of this Agreement.
6. Der Xxxxxxxxxxx acknowledges that, during his employment with GTE,
he has had access to confidential information relating to GTE. Der Xxxxxxxxxxx
will not use or disclose any such confidential information without first
obtaining the consent of the Company.
Der Xxxxxxxxxxx agrees to comply with the provisions of GTE H.R. Policy 412
(Attachment I) provided that, in the event of a conflict between Policy 412 and
this Agreement, the terms of this Agreement shall take precedence.
Contemporaneously with the execution of this Agreement, if Der Xxxxxxxxxxx has
not executed a copy of the Business and Scientific Information Agreement, he
shall do so (Policy Attachment A). Upon his termination, Der Xxxxxxxxxxx shall
execute Policy Attachment D.
Der Xxxxxxxxxxx further agrees to take no action that would cause GTE (including
its employees, directors, and shareholders) embarrassment or humiliation or
otherwise cause or contribute to GTE (including its employees, directors, and
shareholders) being held in disrepute by the general public or GTE's clients,
shareholders, customers, federal or state regulatory agencies, employees,
agents, officers, or directors.
Der Xxxxxxxxxxx will cooperate and make all reasonable efforts to assist the
Company in any investigation of matters involving GTE. Der Xxxxxxxxxxx also
agrees to testify as a witness and be available for interviews and to assist GTE
in preparation for any legal proceedings involving GTE in which Der Xxxxxxxxxxx
has direct knowledge or specific expertise. Der Xxxxxxxxxxx will be compensated
appropriately and reimbursed for reasonable expenses.
Nothing in this Agreement shall be construed to prevent Der Xxxxxxxxxxx from
giving compelled truthful testimony before any federal or state agency or in any
judicial proceeding; provided that, in order to permit GTE to seek an injunction
or other judicial relief, he will timely notify GTE in advance of any such
proceeding in which he expects to be called to testify or for which he has
received a subpoena.
7. Der Xxxxxxxxxxx agrees that, if he breaks any of his promises in
Part II, paragraph 6 of this Agreement or the promises contained in paragraphs 1
through 4 of Section C of the January 1999 Letter Agreement, he will repay to
GTE, as liquidated damages, all amounts previously received under this Agreement
(excluding amounts to which he would have been entitled under GTE's Involuntary
Separation Program, which Der Xxxxxxxxxxx agrees are sufficient consideration
for his promises in paragraphs 1 through 5 of this Agreement, and payments from
GTE's qualified pension and savings plans) and that GTE shall have no obligation
to make any further payments otherwise required by the January 1999 Letter
Agreement (excluding payments to which Der Xxxxxxxxxxx is entitled under GTE's
qualified pension and savings plans). These liquidated damages are based upon
the parties' recognition that damages to GTE due to Der Xxxxxxxxxxx'x breaking
of these promises are not capable of measurement with any degree of certainty.
The amount specified is not to be considered a penalty or forfeiture, but solely
as liquidated damages. Notwithstanding the foregoing, Der Xxxxxxxxxxx agrees
that GTE has no adequate remedy at law should Der Xxxxxxxxxxx break any of these
promises, that GTE would suffer irreparable harm in the event of such breach,
that money damages alone will be insufficient or undeterminable, and that such
breach will entitle
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GTE, as a matter of right and without limitation of any other available remedy
(including the recovery of damages described above) to immediate injunctive
relief in any court of competent jurisdiction, it being intended that all rights
and remedies of GTE are cumulative and nonexclusive of other rights or remedies.
Der Xxxxxxxxxxx specifically agrees that the liquidated damages provided for
herein are intended to address past harm to GTE and would not preclude GTE from
seeking injunctive relief to prevent future harm.
Further, if Der Xxxxxxxxxxx breaks any of his promises, as described above, or
files a lawsuit or complaint regarding claims he has released, Der Xxxxxxxxxxx
will pay for all costs incurred by GTE, including reasonable attorneys' fees, in
defending against his claim or enforcing the provisions of this Agreement, the
January 1999 Letter Agreement, or J. Xxxxxxx XxxXxxxxx'x December 14, 1999
letter.
8. Der Xxxxxxxxxxx understands that he has been given at least 21 days
to review and consider this Agreement before signing it. Der Xxxxxxxxxxx further
understands that he may use as much of this consideration period as he wishes
prior to signing this Agreement.
9. Der Xxxxxxxxxxx may revoke this Agreement within seven days after he
signs it. If Der Xxxxxxxxxxx wishes to revoke this Agreement within this
seven-day period, written notice of revocation should be delivered to the office
of J. Xxxxxxx XxxXxxxxx, by the close of business seven days after Der
Xxxxxxxxxxx signs the Agreement. This Agreement will not become effective or
enforceable until seven days after Der Xxxxxxxxxxx signs it. If Der Xxxxxxxxxxx
revokes this Agreement, it will not be effective or enforceable, and he will not
receive the benefits described in Part I, paragraph 1.
10. Der Xxxxxxxxxxx is advised to consult with an attorney before
signing this Agreement.
11. The parties participated jointly in the negotiation of this
Agreement, and each party had the opportunity to obtain the advice of legal
counsel and to review, comment upon, and redraft this Agreement. Accordingly, it
is agreed that no rule of construction shall apply against any party or in favor
of any party, and any uncertainty or ambiguity shall not be interpreted against
any one party and in favor of the other.
12. Der Xxxxxxxxxxx and the Company hereby consent that any disputes
relating to this Agreement will be governed by New York law, without regard to
its choice of law rules and will be brought in a court sitting in New York, New
York.
13. In the event that any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of this Agreement.
14. This Separation Agreement and General Release, the June 4, 1998
Executive Severance Agreement, the January 1999 Letter Agreement, and J. Xxxxxxx
XxxXxxxxx'x December 14, 1999 letter constitute the entire Agreement between Der
Xxxxxxxxxxx and the Company as to the subject matter addressed herein and shall
be binding upon the heirs, successors, and assigns of Der Xxxxxxxxxxx and the
Company. No other promises or agreements with regard to this subject matter have
been made to Der Xxxxxxxxxxx. Der Xxxxxxxxxxx is not relying on any statement,
representation, or warranty that is not contained in this Agreement, the June 4,
1998 Executive Severance Agreement, the January 1999 Letter Agreement, or J.
Xxxxxxx XxxXxxxxx'x December 14, 1999 letter. Der Xxxxxxxxxxx acknowledges that
he has read this Agreement carefully, fully understands the meaning of the terms
of this Agreement, and is signing this Agreement knowingly and voluntarily.
Subscribed and sworn to before ----------------------------------
me this ___ day of __________, 1999. Xxxxx Der Xxxxxxxxxxx
------------------------------------ --------------------
Notary Public Date
Subscribed and sworn to before GTE Service Corporation
me this ___ day of __________, 1999.
------------------------------------ ----------------------------------
Notary Public By:
Title:
--------------------
Date
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PERSONAL & CONFIDENTIAL
December 14, 1999
Xx. Xxxxx Der Xxxxxxxxxxx
[Address]
[Address]
Dear Xxxxx:
As we discussed, with the sale of Government Systems Corporation nearly
complete, you will be separating from employment with GTE effective December 31,
1999. That being the case, I wanted to take this opportunity to thank you, on
behalf of the entire senior management team at GTE, for your many years of
dedicated service and numerous contributions. Your leadership has been critical
to GTE's success.
I also wanted to provide you with an overview of your separation benefits and to
set out the terms of the consulting arrangement we previously discussed.
SEVERANCE BENEFITS
Consistent with the terms of your January 22, 1999 Letter Agreement, you will
receive severance benefits as set forth in, and in accordance with the terms of,
your Executive Severance Agreement. As per our prior discussions, however, in
lieu of the outplacement counseling provided for by your Executive Severance
Agreement, GTE will provide you counseling through a third party firm, selected
by GTE, to assist you in your efforts to obtain board seats with suitable
entities. You will be allowed to keep your office furniture and your home and
office communications/computer equipment, and GTE will pay the cost of
connectivity for this equipment through the first quarter of 2000, in order to
facilitate this placement process.
Upon execution of the attached Separation Agreement and General Release (the
"Release"), you will be eligible for a Transaction Completion Bonus (calculated
as set forth in paragraph B(1)(b) of your Letter Agreement and including, for
purposes of that calculation, the sale of both Government Systems and ISD), a
payment under the Executive Incentive Plan ("EIP") for 1999, and a prorated
Performance Bonus (12/36ths) under the Long-Term Incentive Plan ("LTIP") for the
1999-2001 Award Cycle. These payments will be governed by the terms of, and
calculated as described in, the
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Xx. Xxxxx Der Xxxxxxxxxxx
December 14, 1999
Page 2
Release and, with regard to any EIP payment and prorated Performance Bonus, will
be paid at the same time such awards are made to other participants. The Release
also contains information regarding the consequences of your failure to keep the
promises set forth in paragraphs 1 through 4 of section C of your January 22,
1999 Letter Agreement. If you fail to sign the release or if you sign and revoke
the release within seven days of signing it, you will not receive any of the
payments described in this paragraph.
You will not participate in EIP beyond 1999 and will not be eligible for future
stock option grants or Performance Bonus Awards under LTIP (beyond the prorated
award for the 1999-2001 Award Cycle, as described above). You will receive a
lump sum payment for your banked, accrued vacation. In accordance with company
policy, you will not be eligible to defer any portion of your vacation pay, the
severance payment provided for by your Executive Severance Agreement, your EIP
payment, your prorated Performance Bonus, or your Transaction Completion Bonus,
and, thus, you will not be eligible for a match on these amounts under the
Equity Participation Program.
Xxxx X'Xxxxxx will serve as your primary contact with regard to your severance
benefits. Please contact him if you have any questions.
CONSULTING ARRANGEMENT
We particularly appreciate your agreement to serve as a consultant to GTE on
certain matters following your separation. Your specialized skills and expertise
in these areas will greatly aid GTE in meeting the numerous challenges that lie
ahead. In particular, you will provide consulting services in connection with
matters related to Government Systems, technology issues, Y2K projects, and any
related legal matters. You will serve as an independent contractor and, as such,
will not be entitled to the benefits available to GTE employees. Your primary
contacts will be Xxxx Xxxxxxx (on Government Systems matters), Xxx Xxxxxxx (on
technology issues), Xxxx Xxxxxxxx (on Y2K matters), and Xxxxx Xxxxxxx (on any
related legal matters). Attendance at Y2K presentations and celebrations and
appropriate retirement celebrations (e.g. Xxxx Xxxxxx and Xxxxxx Xxxxxxx) during
the first quarter of 2000 are permitted and considered workdays.
It is currently anticipated that you will provide consulting services, upon
request by the above GTE contacts, through, at minimum, the first quarter of
2000. You will receive a fee of $3,333.33 per day of service for the first 30
days you provide consulting services. The fees for these initial 30 days of
service will be counted toward a minimum guaranteed total consulting fee of
$100,000 for the first quarter of 2000. If you provide services in excess of the
initial 30 days in the first quarter of 2000, or if you provide
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Xx. Xxxxx Der Xxxxxxxxxxx
December 14, 1999
Page 3
services beyond the first quarter of 2000, you will receive a daily fee of
$5,000 for any calendar day in which you provide more than three hours of
consulting services, including travel time. GTE will reimburse you for all
reasonable business expenses incurred during the performance of consulting
services for GTE upon presentation of acceptable documentation, provided such
expenses are approved in advance by the appropriate GTE executive using your
services.
GTE reserves the right to terminate the consulting relationship at any time for
any reason. You will, however, receive the $100,000 minimum consulting fee
regardless of termination of the consulting arrangement unless GTE terminates
that arrangement due to your violation of the covenants contained in your
January 22, 1999 Letter Agreement, due to a conflict of interest (including, by
way of example only, your engaging in competitive business activities), or due
to your failure or inability to provide satisfactory services, in which case you
will be paid only those fees earned and approved expenses incurred as of the
date of the termination of the consulting relationship.
You will be responsible for any and all taxes associated with the arrangements
described above and for any for any insurance, licenses, or professional fees
associated with the performance of requested consulting services. You understand
and agree that GTE is contracting for your personal services and that you cannot
delegate your responsibilities under this agreement.
As you are aware, you have ongoing obligations regarding confidential and
proprietary information to which you had access during your employment. Further,
you agree that any confidential or proprietary information you receive or
develop during the performance of consulting services for GTE will be treated in
full confidence and will not be revealed to any third party or used for any
purpose other than as authorized by GTE. Any material developed or produced
during the course of your consulting relationship with GTE will become the sole
and exclusive property of GTE, and GTE shall have the right to use such
materials for any purpose without payment of additional compensation to you. You
also agree to obtain all necessary licenses, releases, authorizations, and
permits to utilize any material or information from other sources in providing
services to GTE.
If these terms are acceptable to you, please sign and date this agreement where
indicated below and return an original to me within five (5) business days.
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Xx. Xxxxx Der Xxxxxxxxxxx
December 14, 1999
Page 4
Again, Xxxxx, your leadership and dedication to GTE over the years are greatly
appreciated. We wish you the best, and I hope these severance arrangements
provide you the financial security to pursue your goals for the future.
Sincerely,
J. Xxxxxxx XxxXxxxxx
Executive Vice President -
Human Resources & Administration
JRM:jls
Enclosure
c: X. X'Xxxxxx
I have read, understand, and agree to the above terms and conditions.
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Xxxxx Der Xxxxxxxxxxx
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Date
