AGREEMENT
THIS AGREEMENT is made this 27th day of October, 1999, by and between
BellSouth Corporation (the "Company") and Xxxx X. Xxxxxxxx (the "Executive");
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company, or a subsidiary or
affiliate of the Company (each, a "BellSouth Company");
WHEREAS, the Executive and the Company entered into a retirement
agreement on January 6, 1995 (the "Prior Agreement") which requires the
Executive's retirement during the calendar year in which the Executive's
sixtieth (60th) birthday occurs;
WHEREAS, the Executive and the Company now desire to amend and restate
the Prior Agreement in its entirety to, among other things, extend the date of
the Executive's retirement; and
WHEREAS, the Executive now elects to retire under the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Retirement Date. The Executive shall terminate employment and resign
from each position the Executive holds with the Company and any BellSouth
Company on a date (the "Retirement Date") on or before December 31, 2001. The
Retirement Date shall be such date as is mutually agreed to between the
Executive and the Company; provided, however, that either the Executive or the
Company may unilaterally select the Retirement Date by providing at least thirty
(30), but no more than sixty (60), days' advance notice to the other party of
the Retirement Date so selected.
2. Separation Allowance. As soon as is reasonably practicable after the
Executive's Retirement Date, the Company shall pay to the Executive as a
separation allowance a single lump-sum cash payment equal to the sum of (1)
twice the Executive's Base Salary in effect on the Retirement Date plus (2) the
standard award amount applicable to the Executive under the BellSouth
Corporation Officer Short Term Incentive Award Plan ("STIAP") for the year in
which his Retirement Date occurs, less withholdings, or so much of such sum as
shall not be the subject of a deferral agreement between the parties hereto. For
purposes of this Agreement, "Base Salary" shall refer to the gross annual base
salary payable to the Executive including the amount of any before-tax
contributions made by the Executive from such salary to the BellSouth Retirement
Savings Plan, any other qualified cash or deferred arrangement sponsored by the
Company or a BellSouth Company, or a successor to any such plan, as the case may
be, and the amount of any other deferrals of such salary under any nonqualified
deferred compensation plans maintained by the Company or a BellSouth Company.
3. Short Term Incentive Award. The Executive shall be entitled to an
award under the STIAP based on performance results for the year in which the
Executive's Retirement Date occurs, prorated to the Executive's Retirement Date.
The payment described in this Section 3 shall be subject to all other terms and
conditions of STIAP.
4. Supplemental Executive Retirement Plan. The Executive shall be
entitled to benefits under the BellSouth Corporation Supplemental Executive
Retirement Plan ("SERP") equal to the greater of (a) the benefits to which the
Executive would be entitled under SERP without regard to this Agreement, and (b)
the benefits to which the Executive would be entitled under SERP with the
following adjustments:
(i) the aggregate annual benefit being based on seventy
percent (70%) of Included Earnings (as such term is
defined in SERP) instead of the formula described in
section 4.4(a)(i) of SERP; and
(ii) the benefit so determined being reduced by the
retirement benefit (unreduced for survivor annuity)
payable to the Executive under any tax-qualified
defined benefit pension plan maintained by any prior
employer of the Executive, in addition to the
reductions described in section 4.4(a)(i) of SERP.
5. Stock Options. The Executive shall be entitled to a grant of
non-qualified stock options to purchase shares of Company stock under the
BellSouth Corporation Stock Plan, or its successor (the "Stock Plan"), as of the
day preceding Executive's Retirement Date, equal to the number of such options
granted to the Executive as part of the regular grant most recently preceding
his Retirement Date. The grant described in this Section 5 shall be subject to
all other terms and conditions of the Stock Plan.
6. Financial Counseling. The Executive shall be entitled to benefits
described in the BellSouth Corporation Financial Counseling Plan through his
sixty-seventh (67th) birthday, such benefits to be provided by the Company as if
eligibility therefor extended to such date under the terms of such plan.
Benefits described in this Section 6 shall be subject to all other terms and
conditions of the Financial Counseling Plan.
7. Company Automobile. The Executive may, at his election, purchase
from the Company (or BellSouth Company) any Company-owned automobile provided to
him for its wholesale price determined by the Company as of his Retirement Date,
if the Executive notifies the Company of his intention to do so within thirty
(30) days of his Retirement Date.
8. Death of Executive. If the Executive should die at any time prior to
retirement, the Company shall pay to the Executive's estate in a single lump sum
cash payment, less withholdings, the sum of:
(i) an amount equal to the separation allowance described in
Section 2 of this Agreement (substituting in Section 2 the date of the
Executive's death for the Retirement Date);
(ii) an amount equal to the STIAP award described in Section 3
of this Agreement (to the extent such amount is not otherwise payable
under STIAP); and
(iii) an amount equal to the value of the non-qualified stock
options to purchase shares of Company stock under the Stock Plan
granted to the Executive as part of the regular grant most recently
preceding his date of death. The parties to this Agreement agree that
such value shall be deemed to be the value ascribed to such options by
the Company in determining the amount of such regular option grant to
executives and other managers.
In addition, if the Executive should die at any time prior to
actually retiring on the Retirement Date, the Executive's surviving spouse, if
any, shall be entitled to a survivor annuity under the SERP based on the
enhanced SERP formula described in Section 4 of this Agreement.
9. Discharge and Waiver. Company's obligations under this Agreement,
and Executive's entitlement to the compensation and benefits described herein
(other than amounts payable in the event of the Executive's death as described
in Section 8), are expressly conditioned upon execution by Executive of a waiver
and release and agreement not to xxx, in form and substance reasonably
acceptable to Company, pursuant to which 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, causes of action, remedies, obligations, costs and expenses of
whatever 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 Retirement Date, including those arising from or in
connection with the terms and conditions of employment with the Company and any
BellSouth Company or the termination of that employment. This paragraph is not
intended to affect benefits to which Executive may be entitled under the
Consolidated Omnibus Budget Reconciliation Act (COBRA) or any pension or benefit
plan in which Executive is a participant.
10. Nondisparagement. Executive agrees that now and in the future he
will protect and preserve the Company's and Affiliated Companies' goodwill and
reputation in the industry and in the community, with customers and the public,
and will refrain from public or private comments or actions which are derogatory
or which may tend to disparage Company's or Affiliated Companies' reputations or
otherwise tend to injure Company or Affiliated Companies in their business or
public affairs.
11. Employment Rights. The Company and the Executive understand that
this Agreement constitutes a binding commitment to provide the benefits set
forth herein upon the Executive's retirement or death. The Agreement does not
constitute, and should not be construed as an employment contract. The Executive
acknowledges that he is and shall remain an employee at will who may be
terminated by the Company or a BellSouth Company for any reason and at any time
prior to the Retirement Date. Similarly, the Company acknowledges that the
Executive may resign for any reason at any time prior to his Retirement Date.
The Executive understands that he, like any other employee, has been and will be
subject to the Company's performance standards as well as its disciplinary
rules.
12. Severability. In the event one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, the same shall not affect any other provisions of this
Agreement, but this Agreement shall be construed as if such invalid or illegal
or unenforceable provisions had never been contained herein.
13. Entire Agreement. This Agreement embodies the entire agreement of
the parties hereto relating to the subject matter hereof. No amendment or
modification of this Agreement shall be valid or binding upon the parties unless
made in writing and signed by the parties hereto.
14. Responsibility; Binding Effect. The Company shall be responsible
for all payments and benefits described in this Agreement; provided that, if at
the Executive's Retirement Date, the Executive is not employed by the Company
but is employed by a BellSouth Company, such BellSouth Company shall be
responsible for all payments and benefits described in this Agreement and
thereafter all references in this Agreement to the "Company" shall be deemed to
be references to such BellSouth Company. This Agreement shall be binding upon
the parties hereto and their respective heirs, representatives, successors,
transferees and assigns.
15. 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 WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
EXECUTIVE: COMPANY:
/s/ Xxxx X. Xxxxxxxx By: /s/ X.X. Xxxxxxxx
Signature Signature
Chairman of the Board, President
Xxxx X. Xxxxxxxx and Chief Executive Officer
Name Title
