EXHIBIT 10x
CONFIDENTIAL
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT between CELLCO PARTNERSHIP ("Cellco"), and
XXXXXX XXXXXX (the "Executive"), is made this 30th day of June, 1995.
WHEREAS, Cellco contemplates a closing (referred to herein as the
"Closing") of certain transactions involving contributions to Cellco of assets
and liabilities of the NYNEX Mobile and Xxxx Atlantic Mobile businesses; and
WHEREAS, the Executive is currently serving as President and Chief
Executive Officer of Xxxx Atlantic Mobile Systems, Inc. ("BAM") under the terms
of an Employment Agreement, dated September 30, 1994, between BAM and the
Executive (the "BAM Employment Agreement"); and the BAM Employment Agreement
contemplates the Closing and imposes no impediment to the Executive ceasing
employment with BAM and commencing employment with Cellco; and
WHEREAS, subject to the occurrence of the Closing, Cellco wishes to
employ the Executive as its Chief Executive Officer; and Cellco and the
Executive wish to state the terms and conditions of employment which shall apply
during the term of this Agreement;
NOW, THEREFORE, the parties hereto, acknowledging the mutual
consideration embodied in the terms and conditions of this Agreement and
intending to be legally bound, hereby agree as follows:
1. Employment: Term of Agreement. Subject to the terms of this Agreement,
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and subject to the occurrence of the Closing on June 30, 1995 or any
date in the third or fourth quarter of 1995, the Executive agrees to
commence employment with Cellco effective as of the Closing Date.
Moreover, the Executive agrees to serve as Chief Executive Officer of
Cellco, and Cellco agrees to employ the Executive as its Chief
Executive Officer, for the period from the date of Closing to the
second anniversary of that date (said two-year period is referred to
herein as the "Term" of this Agreement).
2. Compensation. During the Term of this Agreement, the compensation
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program for the Executive shall consist of the following components:
a) Salary: The Executive's base salary which shall initially be
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at an annual rate of $265,400, and such salary shall be
subject to review and adjustment from time to time, as
determined by the Managing General Partner of Cellco (the
"General Partner"), and shall not be reduced below that rate
during the Term of the Agreement; and
b) Short Term Incentive:
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I) The Executive shall participate in a short term
incentive plan for Cellco executives, in accordance
with a plan to be adopted by the Managing Partner on
or about the date of Closing, and which may be
amended from time to time. The Managing Partner shall
set a target incentive at the beginning of each year
(or, in 1995, as of the Closing), and shall determine
the award, subject to company and individual
performance results, after the end of each year.
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ii) On an annualized basis for 1995, the target incentive
shall be $149,300, subject to proration by twelfths
for the number of months from the Closing through the
end of 1995.
iii) In January 1996, Cellco shall also pay the Executive
a short term incentive for 1995 service at BAM prior
to the Closing, based on an annualized target
incentive of $98,200, subject to proration by
twelfths for the number of months from the beginning
of 1995 to the Closing.
c) Long Term Incentive:
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i) The Executive shall participate in a long term
incentive plan for Cellco executives, in accordance
with a plan to be adopted by the Managing Partner
within 90 days after the Closing and which may be
amended from time to time. The Managing Partner shall
grant a long term incentive at the beginning of each
year (or, in 1995, as of the Closing).
ii) For 1995, the value on an annualized basis (before
any applicable proration) of the Cellco long term
incentive shall be $273,000, less the value of any
1995 long-term incentive granted by Xxxx Atlantic
which remains outstanding.
iii) With respect to the treatment of stock options
granted by Xxxx Atlantic for 1995, vis a vis the
Cellco long term incentive grant for 1995, the
Executive shall have the same rights and elections as
other former BAM executives who received such Xxxx
Atlantic stock options and are eligible for a Cellco
1995 long term incentive.
d) Benefits: The Executive shall be eligible to participate in
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all employee benefit plans which are offered to similarly
situated employees of Cellco, in accordance with the terms of
the plans adopted by the Managing Partner, as those plans may
be amended from time to time.
3. Non-Compete and Proprietary Information Agreement: As consideration for
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the offer of employment by Cellco as its Chief Executive Officer and
the promotional increase in compensation associated with that
appointment, the Executive agrees that, on the date he commences
employment with Cellco, he will execute and deliver to Cellco the
Non-Compete and Proprietary Information Agreement (the "Non-Compete
Agreement") attached to this Agreement.
4. Employment Duties. The Executive will, during the Term of this
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Agreement:
a) faithfully and diligently perform all acts and duties required
of a Chief Executive Officer, and furnish such services as the
Managing Partner of Cellco shall direct, and shall perform all
acts in the ordinary course of Cellco's business necessary and
conducive to Cellco's best interest; and
b) devote his full time, energy, and skill to the business of
Cellco and to the promotion of Cellco's best interests, except
for vacations and absences allowed under company policies; and
c) abide by high standards of business ethics and fair
competition, comply with federal, state, and local laws and
any applicable foreign laws known to the Executive in
consultation with Cellco legal counsel, and abide by the
policies of Cellco which are applicable to its employees and
officers, when carrying out his obligations under this
Agreement and conducting Cellco's business.
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5. Obligations of Cellco: Subject to Section 6 of this Agreement, for the
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Term of the Executive's employment with Cellco:
a) Cellco shall retain the Executive in the position of Chief
Executive Officer, with authority and responsibilities
commensurate with that position;
b) Cellco shall not reduce the base salary of the Executive below
$265,400 per annum; and
c) except for short-term travel obligations in the ordinary
course of business, Cellco shall not assign the Executive to a
principal place of work outside the United States.
6. Termination.
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a) The Executive's employment with Cellco may be terminated by
Cellco, without any obligation to pay liquidated damages
(including, without limitation, "Liquidated Damages" as
defined in Section 7(a)) or other severance benefits, either
by reason of his death, by reason of his continuing disability
on the date on which his short-term disability benefits
expire, or for Cause.
b) For purposes of this Agreement, "Cause" means any of the
following: a breach by the Executive of any of his covenants
or obligations under this Agreement or under the Non-Compete
Agreement; insubordination or failure to perform job
responsibilities with full-time and good-faith efforts;
violation of law (other than a traffic citation or minor
misdemeanor); material violation of any policy or code of
conduct adopted by Cellco, including, by way of example, a
knowing violation of the employer's voucher or expense
reimbursement rules; or engaging in some form of misconduct
which, if it were known by the public, could harm the
reputation of Cellco.
c) If there is "Good Reason" (as defined in paragraph (d) below),
and if the Executive gives Cellco 90 days notice of his intent
to resign for Good Reason, the Executive shall be eligible,
subject to the terms and conditions of this Agreement, to
receive Liquidated Damages (as defined in Section 7(a) of the
Agreement) upon such a resignation.
d) A termination for "Good Reason" means a resignation by the
Executive under circumstances in which the Executive is not in
breach of this Agreement or the Non-Compete Agreement, no
event has occurred which would permit Cellco to terminate his
employment pursuant to paragraph (a) of this Section, and in
which Cellco has breached any of its obligations under Section
1, 2 or 5 of this Agreement.
e) Cellco may terminate the Executive's employment at any time
for any reason other than as stated in paragraph (a) of this
Section, providing, that, in such a case the Executive shall
be eligible to receive Liquidated Damages, as defined in, and
subject to the terms of, Section 7 of this Agreement.
7. Liquidated Damages.
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a) Subject to paragraphs (b) through (d) of this Section, in the
event that, during the Term of this Agreement, Cellco
terminates the Executive's employment other than pursuant to
Section 6(a), or in the event that the Executive resigns for
Good Reason, Cellco shall pay "Liquidated Damages" to the
Executive in the nature of severance benefits as follows, and
such amounts shall be the sole and exclusive severance
benefits or damages that Cellco shall be required to
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pay to the Executive in the event of any such termination
(other than any savings, retirement, deferred compensation,
disability or death benefits which may be applicable under any
benefit plans in which the Executive participates):
i) One Year's Salary: Cellco shall pay the Executive 12
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monthly installments of cash at a rate equal to the
Executive's base salary at the time of termination of
employment, less applicable withholding taxes.
ii) Most Recent Short Term Award: Cellco shall pay the
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Executive, within 30 days of the termination of
employment, an amount equal to the gross amount of
the annual short term award which was most recently
paid to the Executive, less applicable withholding
taxes.
iii) Pay in Lieu of Vacation: Cellco shall pay the
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Executive cash in lieu of any accrued but unused
vacation days, at a daily rate equal to 1/260th of
his base salary rate, less applicable withholding
taxes.
b) No Liquidated Damages shall be payable under this Agreement if
the Executive is in breach of this Agreement at the time of
his termination of employment. The Executive shall forfeit any
right to receive any further payments of Liquidated Damages if
and when he breaches any of his covenants or continuing
obligations under the Non-Compete Agreement.
c) A condition to the Executive's right to receive any Liquidated
Damages hereunder shall be his signing, on or about the date
of his termination of employment, a release in the form shown
at Exhibit A of this Agreement (the "Release").
d) In the event that the Executive's employment terminates under
circumstances which make him eligible (subject to the signing
of a Release) to receive Liquidated Damages, the Executive
hereby acknowledges that any such Damages are in lieu of any
right he may otherwise have had to receive benefits under any
severance or separation pay plan, program or practice which
may otherwise have been applicable to him, and, under such
circumstances, the Executive hereby waives any right to
receive any such severance benefit under any such plan,
program or practice.
e) If and when the Executive resigns or retires, or his
employment terminates for any reason, he shall, prior to the
last day of active employment and without charge, return to
Cellco all company property, including, without limitation,
credit cards; building passes and identification cards;
computer hardware and software; communications and office
equipment; and records, files and documents (whether in paper
or machine-readable form).
8. Intellectual Property. The Executive shall disclose promptly to Cellco
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or its nominee(s) any and all inventions, discoveries, improvements,
works of authorship, and computer or other apparatus programs
(collectively "Innovations") whether or not patentable or susceptible
to copyright or other forms of protection, conceived of or made by him
in the course of his employment. The Executive assigns and agrees to
assign all interest in any such Innovations to Cellco or its
nominee(s). An Innovation will be deemed to have been made in the
course of employment unless the Innovation (1) was developed on the
Executive's own time, (2) was developed outside the Executive's regular
or assigned duties for Cellco, and (3) no Employer equipment, facility,
or proprietary information was used. The Executive further agrees,
without charge to Cellco, to execute as and when determined appropriate
by Cellco, a specific assignment to Cellco or its nominee(s) of all
rights, title, and interest to any such Innovations, and the
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Executive agrees to execute all applications or other forms of
protection for such Innovations in the United States and in other
countries.
9. Confidentiality. The Executive agrees not to disclose or discuss, other
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than with his legal counsel, personal tax or financial advisors, or
spouse, either the existence of or any details of this Agreement. The
Executive will use his best efforts to ensure that any such legal
counsel, personal tax or financial advisor, or spouse will not disclose
or discuss the existence or any details of this Agreement with any
other person.
10. Duty to Disclose Acceptance of Offers of Employment by a Competitor.
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The Executive acknowledges that Cellco has an ongoing interest in being
in a position to determine whether any of its employees or former
employees who have, or had, access to proprietary information intend to
provide services as an employee, consultant or in any other capacity to
a company which Cellco considers to be a competitor or potential
competitor. Accordingly, during the period of the Executive's
employment by Cellco, the Executive shall give written notice to Cellco
not later than the earliest date on which he gives his preliminary or
final written or oral acceptance of an offer of employment, or offer of
compensation in exchange for advice, information or consulting
services. Said notice shall state the name of the offering company, the
role or position accepted, and a brief summary of the responsibilities
and the geographic location or scope of that role or position.
11. Miscellaneous Provisions.
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a) Assignment by Cellco. Cellco may assign this Agreement to any
company that acquires all or substantially all of the assets
of Cellco, or into which or with which Cellco is merged or
consolidated. If and when the Executive transfers from Cellco
to any affiliate of Cellco, this Agreement shall be deemed to
be assigned to the transferee company. This Agreement may not
be assigned by the Executive.
b) Waiver. The waiver by Cellco of a breach by the Executive of
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any provision of this Agreement shall not be construed as a
waiver of any prior or subsequent breach.
c) Severability. If any clause, phrase or provision of this
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Agreement or the Non-Compete Agreement or Release, or the
application thereof to any person or circumstance, shall be
invalid or unenforceable under any applicable law, such event
shall not affect or render invalid or unenforceable the
remainder of this Agreement, Non-Compete Agreement or Release.
d) Governing Law. This Agreement shall be construed and enforced
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in accordance with the laws of the State of New Jersey.
e) Notices. Whenever this Agreement requires or permits notice to
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be given to Cellco, the notice should be given in writing to
the Chairman of the Board of the Managing Partner.
f) Entire Agreement: Supersedes Employment Agreement. Except
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for the terms and conditions of the Non-Compete Agreement and
the compensation and benefit plans applicable to the Executive
(as such plans may be amended by Cellco from time to time),
this Agreement sets forth the entire understanding of the
parties and supersedes all prior agreements, arrangements, and
communications, whether oral or written, pertaining to the
subject matter hereof, including without limitation the BAM
Employment Agreement; provided,
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however, that the BAM Employment Agreement shall remain in
effect unless and until the date of Closing, at which time the
parties contemplate that the Signing Bonus shall be payable to
the Executive by BAM under the terms of the BAM Employment
Agreement, and the BAM Employment Agreement shall thereupon be
rescinded and superseded by this Agreement and the Non-Compete
Agreement. This Agreement shall not be modified or amended
except by written agreement of Cellco and the Executive.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby execute this Agreement.
CELLCO PARTNERSHIP
Date: 6/16 /95 By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
Chairman of the Board,
Cellco Management Corporation, as
Managing General Partner of
Cellco Partnership
THE EXECUTIVE
Date: 6/30/95 By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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AMENDMENT AND EXTENSION OF TERM OF
EMPLOYMENT AGREEMENT
This AMENDMENT AND EXTENSION OF TERM OF EMPLOYMENT AGREEMENT is made between
CELLCO PARTNERSHIP ("Cellco") and XXXXXX X. XXXXXX (the "Executive") is made
this 10th of June, 1996.
WHEREAS, Cellco and the Executive are parties to that certain
EMPLOYMENT AGREEMENT made the 30th day of June, 1995, including the Exhibits and
attachments thereto including that certain NON-COMPETE AND PROPRIETARY
INFORMATION AGREEMENT attached thereto and executed by the parties in connection
therewith (collectively, the "Employment Agreement"); and
WHEREAS, Cellco and the Executive wish to extend the term of
the Employment Agreement, subject to certain changes set forth in this AMENDMENT
AND EXTENSION OF TERM OF EMPLOYMENT AGREEMENT ("Amendment to Employment
Agreement"); and
WHEREAS, the Closing of the Cellco Partnership contemplated by
the Employment Agreement has occurred; and
WHEREAS, Xxxx Atlantic Corporation and NYNEX Corporation
contemplate a merger of the two companies during the extended term of the
Employment Agreement (the "Merger"), and Cellco and the Executive wish to
address the Merger in connection with the Employment Agreement;
WHEREAS, Cellco and the Executive wish to make other changes
in the terms and conditions of the Employment Agreement as set forth herein and
to extend and reaffirm all other terms and conditions of the Employment
Agreement (including without limitation the terms and conditions of the
NON-COMPETE AND PROPRIETARY INFORMATION AGREEMENT), except as specifically
changed in this Amendment to Employment Agreement;
NOW THEREFORE, the parties hereto, acknowledging the mutual
consideration embodied in the terms and conditions of this Amendment to
Employment Agreement and intending to be legally bound, hereby agree as follows:
1. The Employment Agreement is incorporated herein by
reference, and all of the terms and conditions of the Employment Agreement,
except to the extent amended by this Amendment to Employment Agreement, remain
in full force and effect according to their terms. The defined terms of the
Employment Agreement shall have the same meaning in this Amendment to Employment
Agreement as in the Employment Agreement, unless otherwise defined herein. Any
provisions of this Amendment to Employment Agreement which are inconsistent with
or conflict with the Employment Agreement shall control. (The Employment
Agreement and the Amendment to Employment Agreement may be collectively referred
to as the "Amended Employment Agreement.")
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2. The "Term" of the Employment Agreement is hereby extended
to the fourth anniversary of the signing of this Amendment to Employment
Agreement.
3. The Executive's annual base salary beginning with execution
of this Amendment to Employment Agreement is hereby increased to be $400,000.
The base salary increase shall be retroactive to January 1, 1996, and Cellco
shall promptly pay Executive the retroactive amount of increase.
4. The Executive's base salary shall be increased by a minimum
of $50,000 annually, effective January 1 of each year of the Term of the Amended
Employment Agreement.
5. The Executive's short term incentive target described in
Section 2 (b)(i) of the Employment Agreement is hereby set as follows: for 1996,
$250,000; for 1997, $285,000; for 1998, $320,000; for 1999, $350,000.
6. In view of the Merger, and in addition to other
compensation provided for in the Employment Agreement and this Amendment to
Employment Agreement, Executive shall receive and Cellco shall pay to Executive
a "Merger Stay Bonus" as follows:
(a) If the Merger closes during the Term of the
Amended Employment Agreement, the Merger Stay Bonus shall be
one times the Executive's then current base salary plus the
Executive's then applicable short term incentive target,
payable at the date of the closing of the Merger. (Example: If
the Merger closes on December 31, 1996, Executive's base
salary is $400,000, Executive's 1996 target bonus is $250,000,
hence the Merger Stay Bonus is $650,000.)
(b) If Merger fails to close during the Term of the
Amended Employment Agreement, or is canceled by Xxxx Atlantic
Corporation and/or NYNEX Corporation, the Merger Stay Bonus
shall be 25% of the Executive's then current base salary plus
25% of the Executive's then applicable short term incentive
target, payable at the earlier of the date upon which the
Merger is canceled, or at the end of the Term. (Example: If
the Merger is canceled on December 31, 1996, Executive's base
salary is $400,000, Executive's 1996 target bonus is $250,000,
hence the Merger Stay Bonus is 25% of $650,000, namely
$162,500.)
7. Executive shall be eligible to participate in the current
executive retirement, savings, and life insurance plans during the Term of the
Amended Employment Agreement, in accordance with the terms of the plans adopted
by the Managing Partner, as those plans may be amended from time to time.
8. At the expiration of the Term, Cellco shall pay the
Executive (in addition to other compensation then due to Executive) an
"Expiration Bonus" in an amount equal to
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Executive's then current base salary and short term incentive target, but only
if the following conditions are then true: (i) the Amended Employment Agreement
has not been terminated, (ii) the Executive remains employed as President and
Chief Executive Officer and has not resigned or been terminated for any reason,
including for Cause or Good Reason, and (iii) Executive has not received
Liquidated Damages. (Example: The Term expires at the fourth anniversary of the
signing of this Amendment to Employment Agreement; Executive then remains
employed as President and Chief Executive Officer of Cellco at a base salary of
$550,000 and a short term incentive target of $350,000; the Expiration Bonus is
payable at the amount of $900,000.)
9. Notwithstanding Section 6(a) of the Employment Agreement,
Cellco shall be obligated to pay Liquidated Damages if Executive's employment
with Cellco is terminated by Cellco by reason of Executive's death or by reason
of his continuing disability (to be established by reference to the provisions
of Cellco's long term disability plan) after the date on which his short-term
disability benefits expire. In the event of such death or continuing disability,
the entire applicable amount of the Liquidated Damages shall be payable by
Cellco in a lump sum within six months of such death or the establishment of
such continuing disability, notwithstanding any other provisions of the Amended
Employment Agreement.
10. Section 6(d) of the Employment Agreement is amended as
follows (new material underlined):
"d) A termination for "Good Reason" means a resignation by the
Executive under circumstances in which the Executive is not in
breach of this Agreement or the Non-Compete Agreement, no event has
occurred which would permit Cellco to terminate his employment
pursuant to paragraph (a) of this Section, and in which Cellco has
either (i) breached any of its obligations under Section 1, 2, or S
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of this Agreement, or (ii) approved a voluntary termination by
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action of the Board of its Managing Partner."
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11. Section 7 of the Employment Agreement ("Liquidated
Damages") is amended by striking paragraphs 7(a)(i) ("One Year's Salary") and
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7(a)(ii) ("Most Recent Short Term Award") and replacing them with the following:
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"i) Two Years' Salary: Cellco shall pay the Executive
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24 monthly installments of cash at a rate equal to the Executive's
base salary at the time of termination of employment, less
applicable withholding taxes.
ii) Two Times Most Recent Short Term Award: Cellco
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shall pay the Executive, within 30 days of the termination of
employment, an amount equal to the gross amount of the annual short
term award which was most recently paid to the Executive, less
applicable withholding taxes. Twelve months thereafter, Cellco
shall pay Executive a further amount equal to the amount payable
under the preceding sentence, less applicable withholding taxes."
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby execute this Amendment to Employment Agreement.
CELLCO PARTNERSHIP
Date: 6-10-96 By:
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Xxxx Atlantic NYNEX Mobile, Inc., as
Managing General Partner of
Cellco Partnership
Date: 6-10-96 By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Amendment of Employment Agreement effective 8th of September, 1998.
. Terms and conditions of page 2, section 5.
-- The Executive's short term incentive target described in Section 2 (b)(i)
of the Employment Agreement is hereby set as follows: for the 1996
performance year with payout in 1997, S250,000; for the 1997 performance
year with payout in 1998, $285,000; for the 1998 performance year with
payout in 1999, $320,000; for the 1999 performance year with payout in
2000, $350,000; for the 2000 performance year with payout in 2001,
$400,000.
. Terms and conditions of pages 2 and 3, section 8.
-- At the expiration of the Term, Cellco shall pay the Executive (in addition
to other compensation then due to the Executive) an "Expiration Bonus" in
an amount equal to Executive's then current base salary and short term
incentive target, but only if the following conditions are then true:
(i) the Amended Employment Agreement has not been terminated, (ii) the
Executive remains employed as President and Chief Executive Officer of
Xxxx Atlantic Global Wireless and has not resigned or been terminated for
any reason, including for Cause or Good Reason, and (iii) Executive has
not received Liquidated Damages. (Example: The Term expires at the fourth
anniversary of the signing of this Amendment to Employment Agreement;
Executive then remains employed as President and Chief Executive Officer
of Xxxx Atlantic Global Wireless at a base salary of $600,000 and a short
term incentive target of $400,000, the Expiration Bonus is payable at the
amount of $1,000,000).
All other terms and conditions remain intact as agreed to on June 10, 1996.
Cellco Partnership
Date: 9-15-98 By: [ILLEGIBLE SIGNATURE]
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Xxxx Atlantic Mobile Inc.,
as Managing General Partner of
Cellco Partnership
Date: Sept 8, 1998 By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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