Exhibit 10hhh
AGREEMENT
THIS AGREEMENT is made and entered into this 29th day of July, 2005, by
and between BellSouth Corporation, a Georgia corporation ("Company"), and
Xxxxxxx X. Xxxxxxxx ("Executive"):
Reasons for this Agreement. Company has identified Executive as an
individual with significant skills and experience critical to the business of
Company. In view of the significant and growing demand for executive talent and
the potential impact on Company's executives of the transformational changes
occurring within our industry and company, Company desires to provide Executive
through this Agreement with certain incentives to remain in Company's
employment. This Agreement is also designed to address potential long-term
employment concerns of Executive and to impose certain reasonable restrictions
on Executive's activities designed to protect Company's interests should
Executive's employment terminate.
Executive has been employed by Company and its Affiliated Companies
since 1981 and during his tenure, has served in a variety of senior capacities.
Since January 1, 2005, Executive has served as Vice-Chairman Planning and
Administration, with responsibility for corporate planning, development,
compliance, public relations, human resources and diversity initiatives. From
January 1, 2000 until December 31, 2004, Executive served as Company's
President-Customer Markets, reporting to Company's Chairman, and having
responsibility for all sales, marketing and customer care activities across the
Company's domestic retail and carrier customer markets for voice, advanced data,
Internet and video services. From January 1, 1998 until January 1, 2000,
Executive served as Company's Group President-Complex Business Services and was
responsible for coordinating and marketing Company's large business efforts.
Prior to January 1, 1998, Executive served as Vice President-Marketing,
responsible for multi-product offerings, Company's competitive local exchange
carrier (CLEC), and its managed network solutions business operations.
Executive acknowledges that Company and Affiliated Companies have
disclosed or made available and in the future will disclose and make available
Confidential Information to Executive which could be used by Executive to
Company's or Affiliated Companies' detriment. In addition, in connection with
his employment, Executive has developed and in the future will develop important
relationships and contacts with employees and customers valuable to Company and
Affiliated Companies.
Executive further acknowledges that the covenant not to compete and
other restrictive covenants in this Agreement are fair and reasonable, that
enforcement of the provisions of this Agreement will not cause him undue
hardship, and that the provisions of this Agreement are reasonably necessary and
commensurate with the need to protect Company and Affiliated Companies and their
business interests and property from irreparable harm.
Executive and Company have previously entered into an agreement dated
October 18, 2000 (the "Prior Agreement"). Executive and Company now desire to
amend the Prior Agreement as provided herein and to restate the Prior Agreement
in its entirety.
Agreement. In consideration of the mutual promises contained in this
Agreement including, among other things, substantial additional compensation and
benefits to Executive, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Executive and Company agree as
follows:
1. Prior Agreement. Executive and Company agree and acknowledge that
upon execution of this Agreement, this Agreement amends, supersedes and replaces
the Prior Agreement in its entirety, effective as of the date first above
written (the "Effective Date").
2. Minimum SERP Benefits. In determining the amount of benefits payable
with respect to Executive under SERP, upon completion by Executive of at least
ten (10) additional years of "Net Credited Service" (as such term is defined in
SERP) after October 18, 2000 (the date of the Prior Agreement), Executive shall
be entitled to benefits equal to the greater of:
(i) an aggregate annual benefit based on (A) sixty percent (60%)
of "Included Earnings" (as such term is defined in SERP),
increased by two (2) percentage points for each such
additional year of "Net Credited Service" (as such term is
defined in SERP) in excess of ten (10) (such percentage not
to exceed, however, in the aggregate seventy percent (70%) of
Included Earnings), instead of the formula described in
section 4.4(a)(i)(A) of SERP, and (B) an early retirement
discount of one-quarter percent (0.25%) for each calendar
month by which Executive's "Pension Commencement Date" (as
such term is defined in SERP) precedes his sixty-second
(62nd) birthday, instead of the otherwise applicable early
retirement discount described in section 4.4(c) of SERP; and
(ii) the benefit provided to Executive under SERP without regard
to this Section 2.
Except as otherwise provided in this Section 2, all other terms and conditions
of SERP (including without limitation all benefit options and administrative
provisions) shall govern Executive's entitlement to benefits thereunder. In the
event SERP shall be amended or restated or redesigned, benefits payable with
respect to Executive under such amended, restated or redesigned plan shall
include a benefit enhancement designed to approximate as nearly as reasonably
possible the SERP benefit enhancement described in this Section 2.
3. Termination Allowance Upon Involuntary Separation. In the event
Executive's employment is terminated under circumstances described below in this
Section 3, Company shall pay to Executive a termination allowance. The
termination allowance shall be an amount equal to the sum of (i) two hundred
percent (200%) of Executive's Base Salary in effect
on the date of Executive's termination of employment, plus (ii) two hundred
percent (200%) of the standard award amount applicable to Executive under the
short-term incentive plan under which Executive is eligible for an annual cash
bonus for the year in which his date of termination occurs, less all applicable
withholdings, payable in a single lump sum payment. Payment of the termination
allowance shall be made as soon as practicable following Executive's termination
of employment under circumstances entitling him to such payment, and
satisfaction of all conditions described in this Agreement on Executive's
entitlement to such payment.
Executive's employment shall be deemed to have been terminated under
circumstances described in this Section 3 only if all of the following
conditions are satisfied:
(a) Executive's employment is terminated either (1) by Company, other
than for Cause, or (2) by Executive for Good Reason; and
(b) Executive executes a release satisfying the terms of Section 7(b)
of this Agreement; and
(c) Executive is not transferred to or reemployed by an Affiliated
Company.
4. SERP Benefit Upon Involuntary Separation. In the event Executive's
employment is terminated under circumstances described in Section 3 of this
Agreement, Executive shall be entitled to benefits under SERP determined by
using an early retirement discount of one-quarter percent (0.25%) for each
calendar month by which Executive's "Pension Commencement Date" (as such term is
defined in SERP) precedes his sixty-second (62nd) birthday, instead of the
otherwise applicable early retirement discount described in section 4.4(c) of
SERP. Moreover, if any such termination shall occur after the occurrence of a
"Change in Control" (as such term is defined in the CIC Agreement), for purposes
of this Section 4, in determining whether the conditions described in Section 3
of this Agreement have been satisfied, "Cause" and "Good Reason" shall have the
meanings ascribed to such terms in the CIC Agreement instead of the definitions
of such terms reflected in this Agreement. In the event SERP shall be amended or
restated or redesigned, benefits payable with respect to Executive under such
amended, restated or redesigned plan shall include a benefit enhancement
designed to approximate as nearly as reasonably possible the SERP benefit
enhancement described in this Section 4.
5. Vesting of Executive Benefits Upon Involuntary Separation. In the
event Executive's employment is terminated under circumstances described in
Section 3 of this Agreement, all benefits of Executive under the BellSouth
Corporation Nonqualified Deferred Compensation Plan, the BellSouth Nonqualified
Deferred Income Plan, the BellSouth Split-Dollar Life Insurance Plan, the
BellSouth Supplemental Life Insurance Plan and the SERP shall be determined as
if Executive, upon his termination of employment, had been eligible for a
service pension under the terms and conditions of the BellSouth Personal
Retirement Account Pension Plan. This provision shall be disregarded in
determining benefits of (or with respect to) Executive under any other
Company-sponsored compensation or benefit plan or program, including without
limitation the Stock Plan and the Stock and Incentive Compensation Plan.
6. Non-Vested Stock Options Upon Involuntary Separation. In the event
Executive's employment is terminated under circumstances described in Section 3
of this Agreement, Company shall pay to Executive an amount with respect to all
Options (as such term is defined in the Stock Plan and the Stock and Incentive
Compensation Plan) to acquire Company stock under the terms of the Stock Plan or
the Stock and Incentive Compensation Plan which are forfeited by virtue of
having not been vested and exercisable at the time of such termination of
employment, determined:
(a) by multiplying the number of Options in each such grant by the
amount, if any, by which the Fair Market Value of Company's common stock subject
to the Option exceeds the exercise price of those Options; and
(b) by then multiplying the amount determined in (a) above with
respect to each such Option grant by a fraction, the numerator of which is the
number of whole calendar months which shall have elapsed from the grant date of
such Option through the date of Executive's employment termination date, and the
denominator of which is the number of calendar months in the full vesting period
applicable to such grant.
Payment of the amount so determined, less all applicable withholdings,
shall be made in a single lump sum payment as soon as practicable following
Executive's termination of employment under circumstances entitling him to such
payment, and satisfaction of all conditions described in this Agreement on
Executive's entitlement to such payment.
For purposes of this Agreement, "Fair Market Value" shall mean the
average of the high and low sales prices of one share of Company stock subject
to the Option on the New York Stock Exchange for the last business day (on which
the New York Stock Exchange operates and is open to the public for trading) of
each of the three (3) months preceding the month in which Executive's
termination of employment occurs.
7. Discharge and Waiver.
(a) Executive fully releases and forever discharges Company and
Affiliated Companies, and any employee, officer, director, representative,
agent, successor or assign of Company and Affiliated Companies (both in their
personal and official capacities), and all persons acting by, through and under
or in concert with any of them, from any and all claims, demands, actions,
causes of action, remedies, suits, obligations, damages, losses, costs and
expenses of whatever kind or nature, whether under the common law, state law,
federal law (including but not limited to the Age Discrimination in Employment
Act of 1967) or otherwise, through the date of this Agreement, including those
arising from or in connection with the terms and conditions of employment with
Company (and Affiliated Companies). This paragraph is not intended to and shall
not affect benefits to which Executive may be entitled under any pension,
savings, health, welfare, or other benefit plan in which Executive is a
participant.
(b) Furthermore, Company's obligations under this Agreement upon
termination of Executive's employment, and Executive's entitlement to any such
benefits, are expressly conditioned upon execution by Executive, upon
termination of his employment, of a release
agreement substantially in the form of the release agreement attached to this
Agreement as Exhibit A, which is incorporated herein by this reference.
8. Covenant Not to Xxx. Executive covenants and agrees not to make or
file any claim, demand or cause of action or seek any remedy of whatever nature,
whether under the common law, state law, federal law or otherwise, arising from
or in connection with the matters discharged and waived in Section 7 above.
Notwithstanding the foregoing, in the event Executive files a charge or lawsuit
under the Age Discrimination in Employment Act of 1967 ("ADEA") and thereby
challenges the validity of the release described in Section 7, such charge or
lawsuit will not be considered a breach of this Section 8.
9. Confidential Information. Executive agrees to protect Confidential
Information from misuse or unauthorized disclosure. In addition to complying
with all applicable laws governing trade secret and confidential information
disclosure, Executive will not (i) use, except in connection with work for
Company or Affiliated Companies, or threaten to use, or (ii) disclose,
communicate or give others access to (orally, in writing, electronically or
digitally) or threaten to disclose, communicate or give other access to any
Confidential Information. For purposes of this Agreement, "Confidential
Information" shall mean information, whether generated internally or externally,
whether in written, oral, digital, electronic or any other form or format,
relating to Company's or Affiliated Companies' businesses that derives economic
value, actual or potential, from not being generally known to other Persons and
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy or confidentiality, including, but not limited to, studies
and analyses, technical or nontechnical data, programs, patterns, compilations,
devices, methods, models (including cost and/or pricing models and operating
models), techniques, drawings, processes, employee compensation data, and
financial data (including marketing information and strategies and personnel
data). After the period of three (3) years following termination of Executive's
employment with Company, for purposes of this Agreement, Confidential
Information shall be defined only as information meeting the criteria set forth
above that remains a trade secret under applicable law. Executive acknowledges
that any use of, reliance upon, disclosure or other misappropriation of
Confidential Information inconsistent with the terms of this Agreement
(including without limitation acceptance by Executive of a position in which the
inevitability of such use, reliance, disclosure or misappropriation is
reasonably anticipated) would result in material and irreparable damage and
injury to Company or Affiliated Companies.
10. Limitation on Competition. In consideration of the additional
payments, benefits and other rights that are being provided to Executive under
this Agreement, while employed by Company or an Affiliated Company, and during
the eighteen (18) months after any termination of his employment, Executive
agrees not to provide any "Services" (as defined in the third paragraph of this
Section 10) to any Person that competes directly with Company or any Affiliated
Companies, whether Executive provides the Services as an employee, consultant,
independent contractor, advisor or director. After the termination of
Executive's employment, the foregoing covenant shall restrict Executive's
actions only with respect to competition in the Territory.
For purposes of this Agreement, the term "Territory" shall mean the
geographical territory consisting of those counties and parishes in the states
of Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina,
South Carolina, and Tennessee, listed on Exhibit B attached hereto and
incorporated by reference herein, which the Parties acknowledge represents
geographical territories in which Executive, as of the Effective Date, has
responsibility for providing Services to Company or Affiliated Companies. The
Parties also acknowledge that the entire Territory consists of geographical
territories in which Company and Affiliated Companies, directly or indirectly,
are conducting business on the Effective Date. In an effort to impose reasonable
limitations on the scope of the Territory, Company has not required that
Executive comply with the covenant in this Section 10 in all geographical areas
where Company and Affiliated Companies are licensed to conduct business and are
conducting business, even though the Parties acknowledge that Executive is
performing Services throughout that entire area. Executive agrees that because
of the widespread nature of Company's business and the fact that, as one of the
most senior executives in the Company Executive's employment responsibilities
extend to all areas where Company and Affiliated Companies operate, Executive's
engaging in competitive activity anywhere in the Territory would irreparably
injure Company or Affiliated Companies and that, therefore, a more limited
geographic restriction is neither feasible nor appropriate.
For purposes of this Agreement, the term "Services" shall mean services
which Executive as of the Effective Date is responsible for providing to Company
and Affiliated Companies, which Executive acknowledges consists of providing
management, administrative and advisory services related to business planning
and operations with respect to the communications services business, consisting
of wireline (local exchange, exchange access and intraLATA toll)
telecommunications services, systems and products, wireless (cellular, personal
communications service and mobile data) communications services, systems and
products, electronic commerce or communications (internet and web based
applications), data transmission and networking, entertainment services, systems
and products, paging services, systems and products, and telecommunications
directory advertising and publishing (print and internet based).
Executive represents and warrants that Executive's education, training
and experience are such that this Section 10 will not jeopardize or
significantly interfere with Executive's ability to secure other gainful
employment.
11. Limitation on Solicitation of Company Personnel. In consideration
of the additional payments, benefits and other rights that are being provided to
Executive under this Agreement, while employed by Company or an Affiliated
Company and during a period of eighteen (18) months after any termination of his
employment, Executive will not, directly or indirectly, induce or solicit any
employee or other personnel, director, advisor or independent contractor of
Company or any Affiliated Company to sever his or its relationship with Company
or the Affiliated Company, or recruit or attempt to recruit such parties to
enter into a substantially similar relationship with another business; provided,
however, that after termination of Executive's employment this restriction shall
apply only to parties with whom Executive had material contact within eighteen
(18) months prior to the termination of his employment. However, Executive may
hire or otherwise engage on behalf of himself or on behalf of any
company or entity any party who terminated his or its relationship with the
Company or an Affiliated Company without any inducement or attempted inducement
or solicitation by Executive.
12. Limitation on Solicitation of Customers. In consideration of the
additional payments, benefits and other rights that are being provided to
Executive under this Agreement, during the period of eighteen (18) months after
any termination of his employment, Executive will not solicit or induce,
directly or indirectly, any Customers for the purpose of providing products or
services within the Territory that Company or Affiliated Companies provide. For
purposes of this Agreement, "Customers" shall mean actual (or actively and
directly sought prospective) customers, suppliers, and retailers of Company or
Affiliated Companies in the Territory (1) with whom Executive dealt, directly or
indirectly, on behalf of Company or Affiliated Companies, or (2) whose dealings
with Company or Affiliated Companies were coordinated or supervised by
Executive.
13. Interpretation; Severability of Invalid Provisions. Executive
acknowledges and agrees that the limitations described in this Agreement,
including specifically the limitations upon his activities, are reasonable in
scope, are necessary for the protection of Company's and Affiliated Companies'
business, and form an essential part of the consideration for which this
Agreement has been entered into. It is the intention of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
applicable laws and public policies. Nonetheless, the rights and restrictions
contained in this Agreement may be exercised and shall be applicable and binding
only to the extent they do not violate any applicable laws and are intended to
be limited to the extent necessary so that they will not render this Agreement
illegal, invalid or unenforceable. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable by a court of competent
jurisdiction, the remaining provisions shall remain in full force and effect.
The provisions of this Agreement do not in any way limit or abridge Company's or
Affiliated Companies' rights under the laws of unfair competition, trade secret,
copyright, patent, trademark or any other applicable law(s), all of which are in
addition to and cumulative of Company's or Affiliated Companies' rights under
this Agreement. Executive agrees that the existence of any claim by Executive
against Company or any Affiliated Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to enforcement by Company or any
Affiliated Company of any or all of such provisions or covenants.
14. Relief.
(a) The parties acknowledge that a breach or threatened breach by
Executive of any of the terms of this Agreement would result in material and
irreparable damage and injury to Company or Affiliated Companies, and that it
would be difficult or impossible to establish the full monetary value of such
damage. Therefore, Company and Affiliated Companies shall be entitled to
injunctive relief in the event of Executive's breach or threatened breach of any
of the terms contained in this Agreement. In the event of any breach of this
Agreement by Executive, if Company or any Affiliated Company should employ
attorneys or incur other expenses for the enforcement of any obligation or
agreement of Executive contained herein, Executive agrees that, on demand and to
the extent permitted by law, Executive shall reimburse Company or the
Affiliated Company for its reasonable attorneys' fees and such other reasonable
expenses so incurred.
(b) In the event that Executive fails to comply with the terms of
Section 9, Section 10, Section 11 or Section 12 of this Agreement, then, in
addition to all other rights and remedies available to Company and Affiliated
Companies under this Agreement, or at law or in equity:
(i) all amounts otherwise payable by Company or an Affiliated
Company to (or on behalf of) Executive pursuant to the
terms of this Agreement for periods subsequent to the date
of such failure shall be forfeited and Company and
Affiliated Companies shall cease to be under any further
obligation to Executive with respect to the compensation
and benefits described in this Agreement; and
(ii) Executive shall refund to Company promptly any and all
amounts previously paid to or on behalf of Executive
pursuant to the terms of this Agreement for periods
subsequent to the occurrence of such failure.
15. Arbitration. Except for the right to seek temporary restraint or
interim injunctive relief from a court of competent jurisdiction (as provided in
Section 14), any dispute, controversy or claim arising out of or relating to
this Agreement, or the breach, termination or invalidity of any provision hereof
(collectively, a "Claim") shall be settled by arbitration pursuant to the
National Rules for the Resolution of Commercial Disputes of the American
Arbitration Association. Any such arbitration shall be conducted by one
arbitrator, with experience in the matters covered by this Agreement, mutually
acceptable to the Parties. If the Parties are unable to agree on the arbitrator
within thirty (30) days of one party giving the other party written notice of
intent to arbitrate a Claim, the American Arbitration Association shall appoint
an arbitrator with such qualifications to conduct such arbitration. The decision
of the arbitrator in any such arbitration shall be conclusive and binding on the
Parties. Any such arbitration shall be conducted in Atlanta, Georgia.
The Parties indicate their acceptance of the foregoing arbitration
requirement by initialing below:
_/s/ RDS_____________ ___/s/ RAA_____________
Company Executive
16. Agreement Binding. This Agreement shall be binding upon and inure
to the benefit of Company and Affiliated Companies, and their successors,
assignees, and designees, and Executive and Executive's heirs, executors,
administrators, personal representatives and assigns.
17. Entire Agreement; Previous Agreement. This Agreement and all
exhibits to this Agreement (which are incorporated into the Agreement by
reference) contain the entire
agreement between the Parties and no statements, promises or inducements made by
either Party, or agent of either Party, which are not contained in this
Agreement shall be valid or binding; provided, however, that the matters dealt
with herein supersede the terms of Company benefit plans and agreements between
the Parties entered into pursuant to such plans only to the extent the
provisions of such plans and related agreements are inconsistent with this
Agreement and other provisions of such plans and related agreements not
inconsistent with this Agreement are not affected. This Agreement may not be
enlarged, modified or altered except in writing signed by the Parties.
18. Nonwaiver. The failure of Company or any Affiliated Companies to
insist upon strict performance of the terms of this Agreement, or to exercise
any option herein, shall not be construed as a waiver or a relinquishment for
the future of such term or option, but rather the same shall continue in full
force and effect.
19. Notices. All notices, requests, demands and other communications
required or permitted by this Agreement or by any statute relating to this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered or mailed, first-class, certified mail, postage prepaid, addressed to
Company or Executive at the address reflected on Exhibit C attached hereto and
incorporated herein by this reference.
20. Nonduplication. Notwithstanding any other provisions of this
Agreement, if Executive becomes entitled to severance benefits under the CIC
Agreement, (i) Executive shall be entitled to either the severance benefits
described in the CIC Agreement or the termination allowance described in Section
3 of this Agreement, whichever provides the greater benefit to Executive, but
not both; (ii) Executive shall be entitled to vesting of executive benefits as
described in the CIC Agreement or vesting of executive benefits as described in
Section 5 of this Agreement, whichever provides the greater benefit to
Executive, but not both; and (iii) any provision of the CIC Agreement providing
for immediate vesting of Options applicable to any Options described in this
Agreement shall apply in lieu of the provisions of Section 6 of this Agreement
with respect to such Options. Except as otherwise specifically provided in this
Section 20, both this Agreement and the CIC Agreement shall continue in full
force and effect, and any provisions regarding non-duplication of the CIC
Agreement shall be interpreted consistently herewith.
21. Nondisclosure. Executive shall not disclose the existence or terms
of this Agreement to any third party (excluding Executive's spouse and
children), except to receive advice of legal counsel, financial advisors or tax
advisors (who shall also be required to maintain its confidentiality) or to
comply with any statutory or common law duty; provided that these restrictions
on disclosure shall not apply to the extent that the existence of this Agreement
are disclosed by Company or any Affiliated Company as part of its periodic
public filings and disclosures or otherwise.
22. Employment Rights. Company and Executive mutually acknowledge and
agree that this Agreement is not intended to and shall not bind either party to
an employment relationship of any fixed or minimum duration such that, in the
absence of an express written
agreement to the contrary, Executive's employment is "at will" and either party
shall have the right to terminate the employment relationship for any reason and
at any time. Furthermore, Executive shall be subject to the same general terms
and conditions of employment as other Company employees.
23. Effect on Internal Revenue Code Section 409A. Notwithstanding any
provision of this Agreement to the contrary, if (i) Executive is a "specified
employee" for purposes of Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations thereunder and (ii) Section 409A of
the Code and the regulations thereunder require that any payment be deferred in
order to avoid application of the excise tax provided by Section 409A(a)(1)(B)
of the Code, then any such payment shall be deferred for six (6) months from the
date of termination (or such later date to avoid such excise tax).
24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
25. Governing Law; Consultation with Counsel. This Agreement shall be
construed under and governed by the laws of the State of Georgia. Executive has
been advised to consult with an attorney, acknowledges having had ample
opportunity to do so and fully understands the binding effect of this Agreement.
In this regard, Executive acknowledges that a copy of this Agreement was
provided to Executive for review and consideration for up to twenty-two (22)
days. Further, Executive understands that this Agreement may be revoked by
Executive within seven (7) days from the date of execution of this Agreement.
Executive further acknowledges that he is a sophisticated businessperson and
that given his opportunity to review, negotiate and reject this Agreement, has
bargaining power equal to that of Company. Therefore, the provisions of this
Agreement shall not be construed against Company.
26. Definitions. For purposes of this Agreement, the following terms
shall have the meaning specified below:
(a) "Affiliated Companies" - shall mean those subsidiaries and
affiliates of Company listed on Exhibit D attached hereto and incorporated
herein by this reference and any direct successors to those companies through
acquisition or merger or by way of name change.
(b) "Base Salary" - shall mean the gross annual base salary payable
to Executive including (i) the amounts of any before-tax contributions made by
Executive from such salary to the BellSouth Retirement Savings Plan, or any
other tax-qualified cash or deferred arrangement sponsored by Company, and (ii)
the amount of any other deferrals of such salary under any nonqualified deferred
compensation plan(s) maintained by Company.
(c) "Cause" - shall mean Executive's (i) engaging in an act (or acts)
of willful dishonesty involving Company or Affiliated Companies or their
business(es) that is demonstrably injurious to Company or Affiliated Companies;
(ii) refusal or failure to follow
reasonable instructions of Company's Chief Executive Officer or Board of
Directors; or (iii) conviction of a crime classified as a felony.
(d) "CIC Agreement" - shall mean the Executive Severance Agreement
entered into by and between Executive and Company, as amended and/or superseded
from time to time, providing certain benefits in the event of a change in
corporate control of Company.
(e) "Confidential Information" - shall have the meaning ascribed to
such term in Section 9 of this Agreement.
(f) "Customers" - shall have the meaning ascribed to such term in
Section 12 of this Agreement.
(g) "Effective Date" - shall have the meaning ascribed to such term
in Section 1 of this Agreement.
(h) "Fair Market Value" - shall have the meaning ascribed to such
term in Section 6 of this Agreement.
(i) "Good Reason" - shall mean, without Executive's express written
consent a reduction in Executive's Base Salary, or his compensation band, as in
effect immediately prior to such reduction, or the failure to pay a bonus award
to which Executive is otherwise entitled under any of the short term or long
term incentive plans in which Executive participates (or any successor incentive
compensation plans) at the time such awards are usually paid.
(j) "Person" - shall mean any individual, corporation, bank,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, governmental or other legal or business entity.
(k) "SERP" - shall mean the BellSouth Corporation Supplemental
Executive Retirement Plan, as amended from time to time.
(l) "Stock and Incentive Compensation Plan" - shall mean the
BellSouth Corporation Stock and Incentive Compensation Plan, and related award
agreements, as amended from time to time.
(m) "Stock Plan" - the BellSouth Corporation Stock Plan and related
award agreements, as amended from time to time.
(n) "Territory" - shall have the meaning ascribed to such term in
Section 10 of this Agreement.
IN WITNESS WHEREOF, Company has caused this Agreement to be executed by
its duly authorized representative, and Executive has executed this Agreement,
as of the date written above.
EXECUTIVE: BELLSOUTH CORPORATION:
_/s/ Xxxxxxx X. Anderson_________ By: __/s/ Xxxxxxx X. Sibbernsen_
XXXXXXX X. XXXXXXXX Title: Vice President-Human Resources
EXHIBIT A
RELEASE AGREEMENT
For and in consideration of the mutual promises contained in the
Agreement entered into on the ______ day of __________, 2005, between Xxxxxxx X.
Xxxxxxxx ("Executive") and BellSouth Corporation ("Company"), Executive does
hereby, for himself, his heirs, executors, administrators, and assigns, release
and forever discharge Company, its subsidiary, affiliated and associated
companies, and any employee, officer, director, representative, agent, successor
or assign of any such entity, and all persons acting by, through and under or in
concert with any of them (both in their personal and official capacities), from
any and all claims, demands, actions, causes of action, remedies, suits,
obligations, damages, losses, costs and expenses, of whatever kind or nature,
whether under common law, state law, federal law or otherwise, including without
limitation the Age Discrimination in Employment Act of 1967, as amended, through
the date of this Release Agreement, including without limitation those arising
from or in connection with the terms and conditions of Executive's employment
with Company and any subsidiary, affiliated and associated companies, or the
termination of Executive's employment. This Release is not intended to affect
benefits to which Executive may be entitled under any pension, savings, health,
welfare or other benefit plan in which Executive is a participant.
Executive covenants and agrees not to make or file any claim, demand or
cause of action or seek any remedy of whatever nature, whether under common law,
state law, federal law or otherwise arising from or in connection with the
matters discharged and waived above. Notwithstanding the foregoing, in the event
Executive files a charge or lawsuit under the Age Discrimination in Employment
Act of 1967 ("ADEA") and thereby challenges the validity of the release
described herein, such charge or lawsuit will not be considered a breach of this
provision.
Executive has been advised to consult with an attorney, acknowledges
having had ample opportunity to do so, and fully understands the binding effect
of this Release Agreement. Executive acknowledges that a copy of this Release
Agreement was provided to him on _____________, 20__, for review and
consideration for up to twenty-two (22) days. Executive understands that this
Release may be revoked by him within seven (7) days from the date of execution
of this Release Agreement.
Executive agrees that this Agreement shall be construed under and
governed by the laws of the State of Georgia.
Executive now states that the only consideration for his signing this
Release Agreement is the mutual promises and payment of the sum described above;
that no other promises or agreements of any kind or nature have been made to, or
with, him by Company or its agents to cause him to sign this Release Agreement,
and that Executive fully understands the meaning and intent of this instrument.
WITNESS my hand and seal this ____ day of __________, 20__.
------------------------------------
Xxxxxxx X. Xxxxxxxx
EXHIBIT B
GEOGRAPHIC TERRITORY
Alabama: Jefferson and Shelby Counties (Birmingham)
Mobile County (Mobile)
Florida: Broward and Dade Counties (Miami-Ft. Lauderdale)
Palm Beach County (West Palm Beach)
Georgia: Xxxxxx, DeKalb, Xxxx and Gwinnett Counties (Atlanta)
Kentucky: Jefferson County (Louisville)
Louisiana: Jefferson and Orleans Parishes (New Orleans)
East Baton Rouge, Ascension and Xxxxxxxxxx Parishes
(Baton Rouge)
Mississippi: Xxxxx, Madison and Xxxxxx Counties (Xxxxxxx)
North Carolina: Mecklenburg County (Charlotte)
Wake County (Raleigh)
South Carolina: Xxxxxxxx, Greenville and Spartanburg Counties (Greenville)
Richland and Lexington Counties (Columbia)
Tennessee: Davidson County (Nashville)
Shelby County (Memphis)
EXHIBIT C
NOTICES
To Company: Xxxx Xxxx
General Counsel
BellSouth Corporation
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
To Executive: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
(or at such other address as Employee provides to
Company from time to time)
EXHIBIT D
BellSouth Telecommunications, Inc.
BellSouth Enterprises, Inc.
Cingular Wireless LLC
BellSouth Long Distance, Inc.
BellSouth Advertising & Publishing Corporation
X. X. Xxxxx and Company (d/b/a The Xxxxx Company)
