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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 8th day of February, 1996, by and
between ______________ (the "Employee") and AIRTOUCH COMMUNICATIONS, INC., a
Delaware corporation (the "Corporation").
For ease of reference, this Agreement is divided into the following parts, which
begin on the pages indicated:
FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION
AND BENEFITS DURING EMPLOYMENT (Sections 1-5,
beginning on page 1)
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR CONSTRUCTIVE
TERMINATION NOT OCCURRING WITHIN THREE YEARS AFTER
A CHANGE IN CONTROL (Sections 6-8, beginning on page 6)
THIRD PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR
CONSTRUCTIVE TERMINATION OCCURRING WITHIN THREE
YEARS AFTER A CHANGE IN CONTROL
(Sections 9-12, beginning on page 9)
FOURTH PART: PARACHUTE PAYMENTS
(Sections 13-14, beginning on page 12)
FIFTH PART: TRADE SECRETS, SUCCESSORS, MISCELLANEOUS
PROVISIONS, SIGNATURE PAGE
(Sections 15-17, beginning on page 14)
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FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND
BENEFITS DURING EMPLOYMENT
SECTION 1: TERM OF EMPLOYMENT
(a) Basic Rule. The Corporation agrees to continue the Employee's
employment, and the Employee agrees to remain in employment with the
Corporation, from February 8, 1996, until the earliest of:
(1) The date of the Employee's death; or
(2) The date when the Employee's employment terminates pursuant
to Subsection (b), (c), (d) or (e) below.
(b) Early Termination or Resignation. The Corporation may terminate the
Employee's employment for any reason by giving the Employee not less
than 30 days' advance notice in writing. The Employee may terminate the
Employee's employment for any reason by giving the Corporation not less
than 30 days' advance notice in writing.
(c) Termination for Cause. The Corporation may terminate the Employee's
employment at any time for Cause shown by giving the Employee not
less than 30 days' advance notice in writing. For all purposes under
this Agreement, "Cause" shall mean (1) a willful failure by the
Employee to substantially perform the Employee's duties under this
Agreement, other than a failure resulting from the Employee's
complete or partial incapacity due to physical or mental illness or
impairment, (2) a willful act by the Employee that constitutes gross
misconduct and that is injurious to the Corporation, (3) a willful
breach by the Employee of a material provision of this Agreement or
(4) a material and willful violation of a federal or state law or
regulation applicable to the business of the Corporation. No act, or
failure to act, by the Employee shall be considered "willful" unless
committed without good faith and without a reasonable belief that the
act or omission was in the Corporation's best interest.
(d) Termination for Disability. The Corporation may terminate the
Employee's employment for Disability by giving the Employee not less
than six months' advance notice in writing. For all purposes under
this Agreement, "Disability" shall mean that the Employee, at the
time notice is given, has been unable to perform the Employee's
duties under this Agreement for a period of not less than six
consecutive months as the result of the Employee's incapacity due to
physical or mental illness. In the event that the Employee resumes
the performance of substantially all of the Employee's duties under
this Agreement before the termination of the Employee's employment
under this Section becomes effective, the notice of termination shall
automatically be deemed to have been revoked.
(e) Notice. For all purposes under this Section 1, the employment
relationship shall terminate on the date specified in the notice of
termination. Any waiver of notice shall be valid only if it is made
in writing and expressly refers to the applicable notice requirement
of this Section 1. If the Corporation specifies a termination
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date that is earlier than the minimum advance notice date required
under Subsection (b), (c) or (d) (as applicable), then the Employee is
entitled to pay and benefits in lieu of the omitted period of advance
notice.
(f) Termination of Agreement. This Agreement shall expire when all
obligations of the parties hereunder have been satisfied. In
addition, either the Corporation or the Employee may terminate this
Agreement for any reason, and without affecting the Employee's status
as an employee, by giving the other party one year's advance notice
in writing. A termination of this Agreement pursuant to the
preceding sentence shall be effective for all purposes, except that
such termination shall not affect the payment or provision of
compensation or benefits under this Agreement on account of a
termination of employment occurring prior to the termination of this
Agreement.
SECTION 2: DUTIES AND SCOPE OF EMPLOYMENT
(a) Position. The Corporation agrees to employ the Employee for the term
of employment under this Agreement in the position of
___________________ (as such position was defined in terms of
responsibilities and compensation as of the effective date of this
Agreement) or in another position offering comparable compensation,
either with the Corporation, a Subsidiary, an Affiliate or a Joint
Venture. The Corporation, Subsidiary, Affiliate or Joint Venture
directly employing the Employee is referred to in this Agreement as
the "Employing Entity," and the Corporation, its Subsidiaries,
Affiliates and Joint Ventures are referred to, in the aggregate, in
this Agreement as the "AirTouch Group."
For all purposes under this Agreement, the terms "Affiliate,"
"Subsidiary" and "Joint Venture" shall mean the following:
(1) "Affiliate" shall mean any entity other than a Subsidiary, if
the Corporation and/or one or more Subsidiaries own(s) not
less than 50% of such entity.
(2) "Subsidiary" shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning
with the Corporation, if each of the corporations other than
the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such
chain.
(3) "Joint Venture" shall mean any entity (other than a Subsidiary
or Affiliate) in which the Corporation and/or one or more
Subsidiaries and/or one or more Affiliates has a direct or
indirect ownership interest.
(b) Obligations. During the term of employment under this Agreement, the
Employee shall devote the Employee's full business efforts and time
to the Employing Entity and the AirTouch Group. The foregoing shall
not preclude the Employee from engaging in appropriate civic,
charitable or religious activities or from devoting a reasonable
amount of time to private investments or from serving on the boards
of directors of other entities, as long as such activities and
service do not interfere or conflict with the Employee's
responsibilities to the Employing Entity and the AirTouch Group.
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SECTION 3: BASE COMPENSATION
During the term of employment under this Agreement, the Corporation agrees to
pay (itself or through the Employing Entity) the Employee as compensation for
services a base salary at the annual rate of $___,___, or at such higher rate as
the Corporation's Compensation and Personnel Committee of the Board of Directors
may determine from time to time. Such salary shall be payable in accordance with
the standard payroll procedures of the Employing Entity. Once the Corporation's
Compensation and Personnel Committee of the Board of Directors has increased
such salary, it thereafter shall not be reduced; provided, however, that if a
Change in Control has not occurred, such salary (including any increases) may be
reduced by the Corporation if (1) the Employee commits an act or omission that
meets the definition of Cause, as defined in Section 1(c), or (2) the Employee
and all other officers of the Corporation who are parties to written employment
agreements containing substantially the same provisions as this Agreement have
their salaries (including any increases) reduced by the same percentage amount
for the same time period. The annual compensation specified in this Section 3,
together with any increases in such compensation that the Compensation and
Personnel Committee of the Board of Directors of the Corporation may grant from
time to time, and together with any reductions made in accordance with this
Section 3, is referred to in this Agreement as "Base Compensation."
SECTION 4: EMPLOYEE BENEFITS
(a) In General. During the term of employment under this Agreement, the
Employee shall be eligible to participate in the employee benefit
plans and executive compensation programs maintained by the Employing
Entity, including (without limitation) pension plans, savings or
profit-sharing plans, deferred compensation plans, supplemental
retirement or excess-benefit plans, stock option, incentive or other
bonus plans, life, disability, health, accident and other insurance
programs, paid vacations, and similar plans or programs, subject in
each case to the generally applicable terms and conditions of the
plan or program in question and to the discretion and determinations
of any person, committee or entity administering such plan or program.
(b) Accelerated Vesting in Incentive Awards in Case of a Change in
Control of the Corporation. If, during the term of this Agreement, a
Change in Control (as defined in Section 12) occurs with respect to
the Corporation, then each of the incentive awards heretofore or
hereafter granted to the Employee by the members of the AirTouch
Group or their delegates shall become fully vested, fully exercisable
or fully payable, as the case may be, any contrary provisions of such
awards or the applicable plan notwithstanding. The term "incentive
award" shall include, without limitation, all awards under the
AirTouch Communications, Inc. 1993 Long-Term Stock Incentive Plan,
all other awards with respect to equity or derivative securities of
the AirTouch Group, and all cash incentive awards.
(c) Accelerated Vesting in Supplemental Pension Benefits in Case of a
Change in Control of the Corporation. If, during the term of this
Agreement, a Change in Control (as defined in Section 12) occurs with
respect to the Corporation, then all of the Employee's supplemental
pension benefits shall become fully vested, any contrary provisions
of the applicable plan notwithstanding. The term
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"supplemental pension benefit" shall include, without limitation, all
retirement benefits provided under a plan or program of the AirTouch
Group that is not intended to qualify under section 401(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
SECTION 5: BUSINESS EXPENSES AND TRAVEL
During the term of employment under this Agreement, the Employee shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with the Employee's duties hereunder. The
Employing Entity shall reimburse the Employee for such expenses upon
presentation of an itemized account and appropriate supporting documentation,
all in accordance with generally applicable policies.
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SECOND PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR CONSTRUCTIVE
TERMINATION NOT OCCURRING WITHIN THREE YEARS AFTER A CHANGE IN
CONTROL
SECTION 6: TERMINATIONS NOT RELATING TO A CHANGE IN CONTROL
This Second Part of the Agreement, consisting of Sections 6 through 8, describes
the benefits and compensation, if any, payable in case of termination of
employment that does not occur within three years after a Change in Control (as
defined in Section 12). The Third Part of the Agreement, consisting of Sections
9 through 12, describes benefits and compensation, if any, payable in case of
termination occurring within three years after a Change in Control. If benefits
and compensation are payable under this Second Part, then no benefits and
compensation are payable under the Third Part.
SECTION 7: INVOLUNTARY TERMINATION WITHOUT CAUSE OR DISABILITY
In the event that, during the term of this Agreement, the Corporation or
Employing Entity terminates the Employee's employment with the AirTouch Group
for any reason other than Cause or Disability, and such termination does not
occur within three years after a Change in Control, then, after executing the
release of claims described in Section 7(e), the Employee shall be entitled to
receive the following payments and benefits:
(a) Severance (1-1/2 x payment)(1). The Corporation shall pay to the
Employee in a lump sum, not less than 31 days nor more than 120 days
following the date of the employment termination, an amount equal to
the following:
(1) One and one-half times(1) the Employee's Base Compensation
in effect on the date of the employment termination; plus
(2) 150% of the target Team Award under the AirTouch
Communications Short-Term Incentive Plan, for the Employee's
position as of the date of the termination.
Any other provision of this Agreement or of the AirTouch Communications
Short-Term Incentive Plan notwithstanding, after the amount described
in this Subsection (a) has been paid to the Employee, the Employee
shall have no further interest in such
Short-Term Incentive Plan.
(b) Eighteen Months of Life Insurance and Health Plan Coverage. The
coverage described in this Subsection (b) shall be provided for a
"Continuation Period" beginning on the date when the employment
termination is effective and ending on the earlier of (1) the
18-month anniversary(2) of the date when the employment termination is
effective or (2) the date of the Employee's death. During the
Continuation Period, the Employee (and, where applicable, the
Employee's dependents) shall be entitled to continue participation in
the basic and supplemental group term life insurance plan and in the
health care plan for employees maintained by the Employing Entity as
if the Employee were still an
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(1) CEO agreement provides for two times (2X) relevant amount.
(2) CEO agreement provides for "24-month anniversary."
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employee of the Employing Entity, but only if the Employee does not
elect any continuation coverage under Part 6 of Title I of the Employee
Retirement Income Security Act of 1974, as amended. Where applicable,
the Employee's compensation for purposes of such plans shall be deemed
to be equal to the Employee's compensation (as defined in such plans)
in effect on the date of the employment termination. To the extent that
the Corporation finds it undesirable to cover the Employee under the
group life insurance and health plans of the AirTouch Group, the
Corporation shall provide the Employee (at its own expense) with the
same level of coverage under individual policies.
(c) Incentive Programs. The period (the "Extension Period") beginning on
the date when the termination of employment is effective and ending
on the earlier of (1) the one-year anniversary of the date when the
employment termination is effective or (2) the date of the Employee's
death shall be counted as employment with the Corporation for
purposes of vesting in each of the incentive awards heretofore or
hereafter granted to the Employee by the members of the AirTouch
Group or their delegates, any contrary provisions of such awards or
the applicable plan notwithstanding. The term "incentive award"
shall include, without limitation, all awards under the AirTouch
Communications, Inc. 1993 Long-Term Stock Incentive Plan, all other
awards with respect to equity or derivative securities of the
AirTouch Group, and all cash incentive awards. This Subsection shall
not be construed to require any member of the AirTouch Group to grant
any new awards to the Employee during the Extension Period. The
parties understand and agree that the Extension Period also counts as
employment with the Corporation for purposes of determining the
expiration date of any stock option granted by any member of the
AirTouch Group and held by the Employee when employment terminates.
(d) Financial Counseling. For a one-year period after termination of
employment, the Corporation shall provide the Employee with
professional financial counseling services comparable in scope and
value to the financial counseling services made available to the
Employee immediately prior to the Change in Control.
(e) Release of Claims. As a condition to the receipt of the payments and
benefits described in this Section 7, the Employee shall be required to
execute a release of all claims arising out of the Employee's
employment or the termination thereof including, but not limited to,
any claim of discrimination under state or federal law.
(f) No Mitigation. The Employee shall not be required to mitigate the
amount of any payment or benefit contemplated by this Section 7, nor
shall any such payment or benefit be reduced by any earnings or
benefits that the Employee may receive from any other source.
SECTION 8: OTHER TERMINATIONS UNDER THIS PART
If termination of employment, actual or constructive, occurs at a time that is
not within three years after a Change in Control, and the termination is not
described in Section 7, then the Employee is entitled only to the compensation,
benefits and reimbursements payable under the terms of Sections 3, 4 and 5 of
this Agreement for the period preceding the effective date of the termination.
The payments under this Agreement
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shall fully discharge all responsibilities of the AirTouch Group to the Employee
upon termination of the Employee's employment. This Section 8 applies, without
limitation, to any termination of employment initiated by the Employee,
termination of employment caused by the Employee's death or Disability,
termination of the Employee for Cause, and any constructive termination.
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THIRD PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR CONSTRUCTIVE
TERMINATION OCCURRING WITHIN THREE YEARS AFTER A CHANGE IN
CONTROL
SECTION 9: TERMINATIONS RELATING TO A CHANGE IN CONTROL
This Third Part of the Agreement, consisting of Sections 9 through 12, describes
the benefits and compensation, if any, payable in case of termination of
employment that occurs within three years after a Change in Control (as defined
in Section 12). The Second Part of the Agreement, consisting of Sections 6
through 8, describes benefits and compensation, if any, payable in case of
termination that does not occur within three years after a Change in Control. If
benefits and compensation are payable under this Third Part, then no benefits
and compensation are payable under the Second Part.
SECTION 10: INVOLUNTARY ACTUAL OR CONSTRUCTIVE TERMINATION WITHOUT CAUSE
In the event that, during the term of this Agreement and within three years
after a Change in Control, the Employee's employment terminates in a Qualifying
Termination, as defined in Subsection (a), the Employee shall be entitled to
receive the payments and benefits described in Subsections (b), (c), (d) and
(e).
(a) Qualifying Termination. A Qualifying Termination occurs if:
(1) The Corporation or Employing Entity terminates the Employee's
employment with the AirTouch Group for any reason including,
without limitation, Cause or Disability;
(2) The Employee separates from employment with the AirTouch Group
in response to a "Constructive Termination," which means a
material reduction in salary or benefits, a material change in
responsibilities, or a requirement to relocate, except for
office relocations that would not increase the Employee's
one-way commute distance by more than 40 miles; or
(3) During the term of this Agreement and during the 13th full
calendar month after the occurrence of a Change in Control,
the Employee voluntarily separates from employment with the
AirTouch Group for any reason.
(b) Severance (3x payment). The Corporation shall pay to the Employee in a
lump sum, not less than 31 days nor more than 120 days following the
date of the employment termination, an amount equal to the following:
(1) Three times the Employee's Base Compensation in effect on
the date of the employment termination; plus
(2) 300% of the target Team Award under the AirTouch
Communications Short-Term Incentive Plan, for the Employee's
position as of the date of the termination.
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Any other provision of this Agreement or of the AirTouch Communications
Short-Term Incentive Plan notwithstanding, after the amount described
in this Subsection (b) has been paid to the Employee, the Employee
shall have no further interest in such
Short-Term Incentive Plan.
(c) Three Years of Life Insurance and Health Plan Coverage. The coverage
described in this Subsection (c) shall be provided for a
"Continuation Period" beginning on the date when the employment
termination is effective and ending on the earlier of (1) the third
anniversary of the date when the employment termination is effective
or (2) the date of the Employee's death. During the Continuation
Period, the Employee (and, where applicable, the Employee's
dependents) shall be entitled to continue participation in the basic
and supplemental group term life insurance plan and in the health
care plan for employees maintained by the Employing Entity as if the
Employee were still an employee of the Employing Entity, but only if
the Employee does not elect any continuation coverage under Part 6 of
Title I of the Employee Retirement Income Security Act of 1974, as
amended. Where applicable, the Employee's compensation for purposes
of such plans shall be deemed to be equal to the Employee's
compensation (as defined in such plans) in effect on the date of the
employment termination. To the extent that the Corporation finds it
undesirable to cover the Employee under the group life insurance and
health plans of the AirTouch Group, the Corporation shall provide the
Employee (at its own expense) with the same level of coverage under
individual policies.
(d) Incentive Programs. The period (the "Extension Period") beginning on
the date when the termination of employment is effective and ending
on the earlier of (1) the one-year anniversary of the date when the
employment termination is effective or (2) the date of the Employee's
death shall be counted as employment with the Corporation for
purposes of vesting in each of the incentive awards heretofore or
hereafter granted to the Employee by the members of the AirTouch
Group or their delegates, any contrary provisions of such awards or
the applicable plan notwithstanding. The term "incentive award"
shall include, without limitation, all awards under the AirTouch
Communications, Inc. 1993 Long-Term Stock Incentive Plan, all other
awards with respect to equity or derivative securities of the
AirTouch Group, and all cash incentive awards. This Subsection shall
not be construed to require any member of the AirTouch Group to grant
any new awards to the Employee during the Extension Period. The
parties understand and agree that the Extension Period also counts as
employment with the Corporation for purposes of determining the
expiration date of any stock option granted by any member of the
AirTouch Group and held by the Employee when employment terminates.
(e) Financial Counseling. For a one-year period after termination of
employment, the Corporation shall provide the Employee with
professional financial counseling services comparable in scope and
value to the financial counseling services made available to the
Employee immediately prior to the Change in Control.
(f) Penalty for Late or Refused Payment. If the Corporation refuses or
fails to timely pay or provide the compensation and benefits
specified in this Section 10 upon demand as provided in Section
17(c), and if such refusal or failure is not corrected within 10
business days after the Employee provides written notice to
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the Corporation concerning the refusal or failure, then the Corporation
shall pay immediately to the Employee an additional amount equal to 50%
of the Employee's Base Compensation. This provision shall apply only
once.
(g) No Mitigation. The Employee shall not be required to mitigate the
amount of any payment or benefit contemplated by this Section 10, nor
shall any such payment or benefit be reduced by any earnings or
benefits that the Employee may receive from any other source.
SECTION 11: OTHER TERMINATIONS UNDER THIS PART
If termination of employment, actual or constructive, occurs at a time that is
within three years after a Change in Control, and the termination is not
described in Section 10, then the Employee is entitled only to the compensation,
benefits and reimbursements payable under the terms of Sections 3, 4 and 5 of
this Agreement for the period preceding the effective date of the termination.
The payments under this Agreement shall fully discharge all responsibilities of
the AirTouch Group to the Employee upon termination of the Employee's
employment. This Section 11 applies, without limitation, to any termination of
employment initiated by the Employee (except an Employee-initiated termination
that is described in Paragraph (2) or (3) of Section 10(a)), a termination of
employment caused by the Employee's death, or any constructive termination that
does not meet the requirements of a "Constructive Termination" defined in
Paragraph (2) of Section 10(a).
SECTION 12: DEFINITION OF CHANGE IN CONTROL
For all purposes under this Agreement, "Change in Control" shall mean a "Change
in Control" of the Corporation, as defined in the AirTouch Communications, Inc.
1993 Long-Term Stock Incentive Plan (or the successor to such plan).
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FOURTH PART: PARACHUTE PAYMENTS
SECTION 13: GROSS-UP PAYMENT.
In the event it is determined that any payment or distribution of any type to or
for the benefit of the Employee, pursuant to this Agreement or otherwise, by the
Corporation or any member of the AirTouch Group, any Person who acquires
ownership or effective control of the Corporation or any member of the AirTouch
Group, or ownership of a substantial portion of the assets of the Corporation or
any member of the AirTouch Group (within the meaning of section 280G of the Code
and the regulations thereunder) or any affiliate of such Person (the "Total
Payments") would be subject to the excise tax imposed by section 4999 of the
Code or any interest or penalties with respect to such excise tax (such excise
tax, together with any such interest and penalties, are collectively referred to
as the "Excise Tax"), then the Employee shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that, after payment
by the Employee of all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax, imposed upon the Gross-Up
Payment, the Employee retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Total Payments.
SECTION 14: DETERMINATION BY ACCOUNTANT
All mathematical determinations and determinations as to whether any of the
Total Payments are "parachute payments" (within the meaning of section 280G of
the Code), in each case which determinations are required to be made under this
Section 14, including whether a Gross-Up Payment is required, the amount of such
Gross-Up Payment, and amounts relevant to the last sentence of this Section 14,
shall be made by an independent accounting firm selected by the Employee from
amount the largest six accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide to the Corporation and to the Employee
its determination (the "Determination"), together with detailed supporting
calculations regarding the amount of any Gross-Up Payment and any other relevant
matter, within five days after termination of the Employee's employment, if
applicable, or at such earlier time as is requested by the Corporation or the
Employee (if the Employee reasonably believes that any of the Total Payments may
be subject to the Excise Tax). If the Accounting Firm determines that no Excise
Tax is payable by the Employee, it shall furnish the Employee with a written
statement that such Accounting Firm has concluded that no Excise Tax is payable
(including the reasons therefor) and that the Employee has substantial authority
not to report any Excise Tax on the Employee's federal income tax return. If a
Gross-Up Payment is determined to be payable, it shall be paid to the Employee
within five days after the Determination is delivered to the Corporation or the
Employee. Any determination by the Accounting Firm shall be binding upon the
Corporation and the Employee, absent manifest error.
As a result of uncertainty in the application of section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments not made by the Corporation and members of the
AirTouch Group should have been made ("Underpayment"), or that Gross-Up Payments
were made by the Corporation and members of the AirTouch Group that should not
have been made ("Overpayments"). In either such event, the Accounting Firm shall
determine the
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amount of the Underpayment or Overpayment that has occurred. In the case of an
Underpayment, the Corporation promptly shall pay, or cause to be paid, the
amount of such Underpayment to or for the benefit of the Employee. In the case
of an Overpayment, the Employee shall, at the direction and expense of the
Corporation, take such steps as are reasonably necessary (including the filing
of returns and claims for refund), follow reasonable instructions from, and
procedures established by, the Corporation, and otherwise reasonably cooperate
with the Corporation to correct such Overpayment; provided, however, that (1)
Employee shall not in any event be obligated to return to the Corporation an
amount greater than the net after-tax portion of the Overpayment that he has
retained or recovered as a refund from the applicable taxing authorities and (2)
this provision shall be interpreted in a manner consistent with the intent of
Section 13, which is to make the Employee whole, on an after-tax basis, from the
application of the Excise Tax, it being understood that the correction of an
Overpayment may result in the Employee repaying to the Corporation an amount
that is less than the Overpayment.
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FIFTH PART: TRADE SECRETS, SUCCESSORS, MISCELLANEOUS PROVISIONS,
SIGNATURE PAGE
SECTION 15: CONFIDENTIAL INFORMATION
(a) Acknowledgement. The Corporation and the Employee acknowledge that
the services to be performed by the Employee under this Agreement are
unique and extraordinary and that, as a result of the Employee's
employment, the Employee will be in a relationship of confidence and
trust with the Corporation and will come into possession of
"Confidential Information" (1) owned or controlled by the AirTouch
Group, (2) in the possession of the AirTouch Group and belonging to
third parties or (3) conceived, originated, discovered or developed,
in whole or in part, by the Employee. As used herein "Confidential
Information" includes trade secrets and other confidential or
proprietary business, technical, personnel or financial information,
whether or not the Employee's work product, in written, graphic, oral
or other tangible or intangible forms, including but not limited to
specifications, samples, records, data, computer programs, drawings,
diagrams, models, customer names, business or marketing plans,
studies, analyses, projections and reports, communications by or to
attorneys (including attorney-client privileged communications),
memos and other materials prepared by attorneys or under their
direction (including attorney work product), and software systems and
processes. Any information that is not readily available to the
public shall be considered to be a trade secret and confidential and
proprietary, even if it is not specifically marked as such, unless
the Corporation advises the Employee otherwise in writing.
(b) Nondisclosure. The Employee agrees that the Employee will not,
without the prior written consent of the Corporation, directly or
indirectly use or disclose Confidential Information to any person,
during or after the Employee's employment, except as may be necessary
in the ordinary course of performing the Employee's duties under this
Agreement. The Employee will keep the Confidential Information in
strictest confidence and trust. This Section 15 shall apply
indefinitely, both during and after the term of this Agreement.
(c) Surrender Upon Termination. The Employee agrees that in the event of
the termination of the Employee's employment for any reason, the
Employee will immediately deliver to the Corporation (and/or other
members of the AirTouch Group, as applicable) all property belonging
to the AirTouch Group, including all documents and materials of any
nature pertaining to the Employee's work with the AirTouch Group, and
will not take with the Employee any documents or materials of any
description, or any reproduction thereof of any description,
containing or pertaining to any Confidential Information. It is
understood that the Employee is free to use information that is in
the public domain (not as a result of a breach of this Agreement).
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SECTION 16: SUCCESSORS
(a) Corporation's Successors. The Corporation shall require any
successor (whether direct or indirect and whether by purchase, lease,
merger, consolidation, liquidation or otherwise) to all or
substantially all of the Corporation's business and/or assets, by an
agreement in substance and form satisfactory to the Employee, to
assume this Agreement and to agree expressly to perform this
Agreement in the same manner and to the same extent as the
Corporation would be required to perform it in the absence of a
succession. The Corporation's failure to obtain such agreement prior
to the effectiveness of a succession shall be a breach of this
Agreement and shall entitle the Employee to all of the compensation
and benefits to which the Employee would have been entitled hereunder
if the Corporation had involuntarily terminated the Employee's
employment without Cause or Disability, on the date when such
succession becomes effective. For all purposes under this Agreement,
the term "Corporation" shall include any successor to the
Corporation's business and/or assets that executes and delivers the
assumption agreement described in this Subsection (a) or that becomes
bound by this Agreement by operation of law.
(b) Employee's Successors. This Agreement and all rights of the Employee
hereunder shall inure to the benefit of, and be enforceable by, the
Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
SECTION 17: MISCELLANEOUS PROVISIONS
(a) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Employee and by an authorized officer of
the Corporation (other than the Employee). No waiver by either party
of any breach of, or of compliance with, any condition or provision
of this Agreement by the other party shall be considered a waiver of
any other condition or provision or of the same condition or
provision at another time.
(b) Whole Agreement. No agreements, representations or understandings
(whether oral or written and whether express or implied) that are not
expressly set forth in this Agreement have been made or entered into
by either party with respect to the subject matter hereof. In
addition, the Employee hereby acknowledges and agrees that this
Agreement supersedes in its entirety any employment agreement between
the Employee and the Corporation in effect immediately prior to the
effective date of this Agreement. As of the effective date of this
Agreement, such employment agreement shall terminate without any
further obligation by either party thereto, and the Employee hereby
relinquishes any further rights that the Employee may have had under
such prior employment agreement.
(c) Presumption. Subject to the provisions of Section 13, the
Corporation shall make or cause to be made a payment described in
this Agreement upon receiving written notice from the Employee
describing such payment, referring to the provision of this Agreement
under which such payment is claimed and certifying that all
conditions for such payment, as set forth in this Agreement,
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have been satisfied. The information so furnished to the Corporation by
the Employee shall be presumed to be correct, subject to rebuttal by
the Corporation after payment. After making the payment claimed by the
Employee, the Corporation may seek a refund of such payment in
accordance with Subsection (h) below. This Subsection (c) shall not be
used to cause a payment to be made at a time earlier than provided in
this Agreement.
(d) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid. In the
case of the Employee, mailed notices shall be addressed to the
Employee at the home address that the Employee most recently
communicated to the Corporation in writing. In the case of the
Corporation, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of
its Secretary.
(e) No Setoff. There shall be no right of setoff or counterclaim, with
respect to any claim, debt or obligation, against payments to the
Employee under this Agreement.
(f) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
State of California, irrespective of California's choice-of-law
principles.
(g) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in
full force and effect.
(h) Arbitration. Except as otherwise provided in Section 13, any dispute
or controversy arising out of the Employee's employment or the
termination thereof, including, but not limited to, any claim of
discrimination under state or federal law, shall be settled
exclusively by arbitration in San Francisco, California, in
accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction. The foregoing notwithstanding, a
dispute or controversy over whether Cause exists for the termination
of an Employee, whether such termination occurred within three years
after a Change in Control, or a dispute or controversy over whether a
Constructive Termination has occurred, shall be arbitrated by a
three-member panel of the outside directors of the Corporation, with
the selection of the panel to be made by the Chairman, as of one year
prior to the Change in Control, of the Corporation's Board of
Directors. If three such individuals are unwilling to serve as
arbitrators, the preceding sentence shall be inapplicable, and all
disputes and controversies shall be subject to arbitration in
accordance with the rules of the American Arbitration Association, as
provided above in this Subsection. For purposes of this Subsection,
"outside directors" shall mean members of the Board of Directors of
the Corporation, as such Board of Directors was constituted one year
prior to the Change in Control, who were not employees of the
Corporation or another member of the AirTouch Group one year prior to
the Change in Control.
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(i) No Assignment of Benefits. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by
operation of law, including (without limitation) bankruptcy,
garnishment, attachment or other creditor's process, and any action in
violation of this Subsection (i) shall be void.
(j) Employment at Will; Limitation of Remedies. The Corporation and the
Employee acknowledge that the Employee's employment is at will, as
defined under applicable law. If the Employee's employment terminates
for any reason, the Employee shall not be entitled to any payments,
benefits, damages, awards or compensation other than as provided by
this Agreement.
(k) Employment Taxes. All payments made pursuant to this Agreement shall
be subject to withholding of applicable taxes.
(l) Benefit Coverage Non-Additive. In the event that the Employee is
entitled to life insurance and health plan coverage under more than one
provision hereunder, only one provision shall apply, and neither the
periods of coverage nor the amounts of benefits shall be additive.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Corporation by its duly authorized officer, as of the day and year first
above written.
______________________________
Employee
AIRTOUCH COMMUNICATIONS, INC.
By____________________________
Its___________________________
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