EMPLOYMENT AND GENERAL RELEASE AGREEMENT
Exhibit 10.1
EMPLOYMENT AND GENERAL RELEASE AGREEMENT
This Employment and General Release Agreement (“Agreement”) is entered into by and between United States Cellular Corporation (“U.S. Cellular”) and its subsidiaries, partnerships, affiliates, business units and related entities (collectively, “the Company”) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“▇▇. ▇▇▇▇▇”).
WHEREAS, U.S. Cellular is in the business of providing cellular telephone, personal communication, internet and other communication and data services to its customers;
WHEREAS, ▇▇. ▇▇▇▇▇ is an employee of U.S. Cellular and holds the position of Executive Vice President, Sales and Customer Service;
WHEREAS, ▇▇. ▇▇▇▇▇ and U.S. Cellular desire to continue their employment relationship until December 31, 2013;
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and for other good and valuable consideration, the adequacy and receipt of which the parties expressly acknowledge, ▇▇. ▇▇▇▇▇ and the Company agree as follows:
1. Employment Period and Responsibilities. U.S. Cellular will continue to employ ▇▇. ▇▇▇▇▇ until the end of the day on December 31, 2013 (the “Separation Date”). ▇▇. ▇▇▇▇▇ last day in the office was October 31, 2013 and he need not report to the office thereafter unless specifically requested by the Company to do so.
2. Performance Standards. Through the Separation Date, ▇▇. ▇▇▇▇▇ agrees to transition his responsibilities and make himself available for any assignments consistent with his prior role and duties that senior leadership of the Company reasonably requests.
3. Base Salary. The Company will continue to pay ▇▇. ▇▇▇▇▇ his current annual base salary in accordance with the Company’s regular payroll practices through the Separation Date.
4. Employment Benefits. Except as otherwise provided herein, the Company will maintain all of ▇▇. ▇▇▇▇▇’▇ Company employment benefits until the Separation Date when they will cease in accordance with the terms of the respective benefit plans. ▇▇. ▇▇▇▇▇ will be provided an opportunity to continue coverage for himself and qualifying dependents, if any, under the Company's group health plans in accordance with the Consolidated Omnibus Budget Reconciliation Act ("COBRA"). As soon as administratively practicable following the Separation Date, ▇▇. ▇▇▇▇▇ will be paid for unused but accrued vacation days, if any. Other than as detailed specifically in this document, or as provided under the terms of any pension, benefit, stock or option plan, ▇▇. ▇▇▇▇▇ will not be eligible for any other compensation, benefits, or payments from the Company.
5. Discretionary Pay. Provided that ▇▇. ▇▇▇▇▇ has satisfactorily performed his job up to and including the Separation Date, has executed and not revoked the general release and covenant not to ▇▇▇ described in Paragraphs 13, 14, 15 and 16 below, and complied with the other obligations set forth in this Agreement including those set forth in Paragraph 12, the Company will pay him, as discretionary pay, the gross amount of $658,014 (the “Discretionary Pay Amount”), less applicable deductions. The Discretionary Pay Amount is based on the aggregate of (i) a severance payment in the amount of $458,654; (ii) the approximate cost to ▇▇. ▇▇▇▇▇ of twelve (12) months of healthcare coverage under the Company’s group health plan under COBRA; and (iii) 65% of ▇▇. ▇▇▇▇▇’▇ target incentive pay under the Company’s 2013 Executive Officer Annual Incentive Plan. The Discretionary Pay Amount less applicable deductions will be paid to ▇▇. ▇▇▇▇▇ in accordance with the following schedule: (i) one-half on January 8, 2014; and (ii) one-half on July 14, 2014.
6. Outplacement. The Company will pay the cost of outplacement services to be provided to ▇▇. ▇▇▇▇▇ by a mutually agreed upon firm during the period ending December 31, 2014; provided that at such earlier date as ▇▇. ▇▇▇▇▇ becomes a full time employee of another employer, this benefit shall cease and not be subject to any revival. Should ▇▇. ▇▇▇▇▇ decide not to use an outplacement service, or to use an outplacement service for a period less than the maximum period set forth herein, he will not be entitled to cash compensation in lieu thereof.
7. Return of Company Property. ▇▇. ▇▇▇▇▇ agrees to return on or before December 31, 2013 to the Company all of the Company’s information and property in his possession. ▇▇. ▇▇▇▇▇ hereby represents to the Company that, to his knowledge, after making a diligent search, he maintains no Company information or property on his home personal computer, personal laptop (if any), personal email accounts or otherwise. This information and property includes, but is not limited to, the Company’s mailing lists, reports, files, memoranda, records, computer hardware, software, credit cards, door and file keys, computer access codes or disks and instructional manuals, and other physical or personal property which he received or prepared or helped prepare in connection with his employment with the Company. ▇▇. ▇▇▇▇▇ further agrees that he will not retain any copies, duplicates, reproductions or excerpts of this information or property and that if he later discovers any of the foregoing, he will promptly notify the Company and destroy same.
8. Resignation From Offices and Committees. ▇▇. ▇▇▇▇▇ hereby confirms that, effective as of the end of the day on October 28, 2013, ▇▇. ▇▇▇▇▇ has resigned from any and all offices, committee memberships and other positions he held with the Company.
9. Cooperation. ▇▇. ▇▇▇▇▇ agrees to cooperate with the Company regarding any pending or subsequently filed litigation, proceeding, claim or other disputed item involving the Company that relates to the matters within his knowledge or responsibility during his employment. Without limiting the foregoing, he agrees (i) to meet with the Company’s representatives, its counsel or other designees at mutually convenient times and places, including via phone, with respect to any items within the scope of this paragraph; (ii) to provide truthful testimony before any court, agency or other legal authority; and (iii) to notify the Company when permitted to do so by law within three (3) business days if he is contacted by any adverse party or legal authority or by any representative of an adverse party or legal authority. Should it become necessary to meet with the Company’s representatives, its counsel or other designees, ▇▇. ▇▇▇▇▇ will receive reimbursement for actual lost wages and actual expenses that are reasonable and customary under the Company’s expense policies and its by-laws relating to indemnification. Such reimbursement shall occur as soon as administratively practicable following the date such expenses or lost wages are incurred (subject to his request for reimbursement in accordance with the Company’s expense policies). In no event, however, shall such reimbursement occur later than the last day of the calendar year following the calendar year during which the expenses or lost wages are incurred. The reimbursement of expenses or lost wages in one calendar year shall not affect the amounts eligible for reimbursement in any other calendar year.
10. Non-Disclosure and Use of Confidential Information. The Company’s employment of ▇▇. ▇▇▇▇▇ has resulted in his exposure and access to confidential and proprietary information including, but not limited to, the Company’s business strategies, designs, ideas, management, administration and financial systems, computer software, client lists, financial information, technology, and personal information about the Company’s owners, members, directors, officers, employees and agents (collectively “non-public business information”) which ▇▇. ▇▇▇▇▇ did not have access to prior to his employment with the Company and which information is of great value to the Company and their owners, members, directors, officers, and employees. ▇▇. ▇▇▇▇▇ agrees that he will continue to hold any and all non-public business information in strict confidence and shall not, other than on the Company’s behalf, make available, divulge, disclose, or communicate in any manner whatsoever to anyone including, but not limited to, any person, firm, corporation, member of the media, or entity, any such non-public business information, or use any non-public business information for any purpose, unless such information has become publicly available other than by reason of a breach by ▇▇. ▇▇▇▇▇ of this paragraph or of another individual’s or entity’s violation of an obligation not to disclose such information. For the avoidance of doubt, non-public business information does not include ▇▇. ▇▇▇▇▇’▇ general knowledge, skill, and experience in the industry. ▇▇. ▇▇▇▇▇ further agrees not to discuss this Agreement or any of its terms with anyone, or to comment upon this Agreement or any of its terms to anyone, or to provide a copy of the Agreement to anyone, other than his attorneys, accountants, tax advisors, financial advisors, recruiters, outplacement consultant, prospective employers and domestic partner, unless called on by a court order or subpoena to do so or required by law; and if so called on will give immediate notice of such order or subpoena to the Company to the attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, United States Cellular Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Notwithstanding the foregoing, ▇▇. ▇▇▇▇▇ may disclose to anyone the existence of the Agreement and the fact that it has been filed with the Securities and Exchange Commission. ▇▇. ▇▇▇▇▇ acknowledges and agrees that the Company is required to disclose his separation and the terms of this Agreement, including the filing of a copy of this Agreement, pursuant to requirements of the Securities and Exchange Commission, the New York Stock Exchange and/or other laws, rules or regulations. ▇▇. ▇▇▇▇▇ agrees that any violation of this paragraph shall constitute a material breach of this Agreement. Nothing herein shall restrict in any way any disclosure by the Company or ▇▇. ▇▇▇▇▇ pursuant to any laws, rules or regulations.
11. Communications. ▇▇. ▇▇▇▇▇ agrees that he has not and will not directly or indirectly make any disparaging communication, or release any information or encourage others to make any communication or release any information, that is intended to embarrass or disparage the Company or the Company’s policies or practices to any person, including the Company’s investors, customers, vendors, competitors, associates or employees, former associates or employees, potential associates or employees or the press or other media in any country, provided, that it will not be a violation of this paragraph for him to make truthful statements when required by legal process to do so by a court of law, by any governmental agency having supervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with the jurisdiction to order ▇▇. ▇▇▇▇▇ or his agents to divulge, disclose or make accessible such information. Further, the Company agrees that it will respond to reference requests about ▇▇. ▇▇▇▇▇ by providing only a mutually agreed upon reference letter from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ attached as Exhibit A. All persons seeking such references must be directed to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, United States Cellular Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company further agrees that it will not release any press
release or other statement to the press or media or to the Securities and Exchange Commission that is intended to embarrass or disparage ▇▇. ▇▇▇▇▇. ▇▇. ▇▇▇▇▇ will not engage in any contact with any media with respect to any Released Party, the Company’s policies or practices or facts and circumstances giving rise to this Agreement without the prior written consent of the Company. However, so long as ▇▇. ▇▇▇▇▇ does not disparage the Company, nothing in this Agreement precludes ▇▇. ▇▇▇▇▇ from discussing his prior experience, his accomplishments and his future plans with any person, including the media. ▇▇. ▇▇▇▇▇ and the Company agree that any violation of this paragraph shall constitute a material breach of this Agreement.
12. Covenants.
(a) General. ▇▇. ▇▇▇▇▇ and the Company understand and agree that the purpose of the provisions of this Paragraph 12 is to protect legitimate business interests of the Company, as more fully described below, and is not intended to impair or infringe upon ▇▇. ▇▇▇▇▇’▇ right to work, earn a living, or acquire and possess property from the fruits of his labor. ▇▇. ▇▇▇▇▇ hereby acknowledges that the post-employment restrictions set forth in this Paragraph 12 are reasonable and that they do not, and will not, unduly impair his ability to earn a living after the termination of his employment with the Company. Therefore, subject to the limitations of reasonableness imposed by law upon restrictions set forth herein, ▇▇. ▇▇▇▇▇ shall be subject to the restrictions set forth in this Paragraph 12.
(b) Non-Competition. ▇▇. ▇▇▇▇▇ shall not work, directly or indirectly, for any entity which is a wireless service carrier that operated, as of the Separation Date, in any market within the continental United States in which the Company operated as of the Separation Date, through the period ending December 31, 2014. For purposes of the foregoing, "wireless service carrier" includes any wireless carrier holding a license granted by the Federal Communications Commission, as well as any reseller or MVNO, but excludes Iridium, Sirius or any satellite based provider of wireless communication services. “Work for” includes, whether paid or unpaid, as an employee, officer, director, consultant or advisor.
(c) Non-solicitation of Protected Employees. ▇▇. ▇▇▇▇▇ agrees that during the two-year period ending December 31, 2015, he shall not directly or indirectly on his own behalf, or on behalf of someone else, solicit any associate or employee of the Company, TDS or a direct or indirect subsidiary of the Company or TDS, at or above the manager level, to terminate his/her employment with the Company, TDS or such subsidiary.
(d) Payment for Obligations. Consideration for these obligations is set forth in Paragraph 5 of this Agreement.
(e) Breach of Agreement. Any failure by ▇▇. ▇▇▇▇▇ to cooperate as required by Paragraph 9, any violation by ▇▇. ▇▇▇▇▇ of the noncompetition, confidentiality or nonsolicitation provisions specified in Paragraphs 10 and 12, any failure by ▇▇. ▇▇▇▇▇ to comply with the communications requirements of Paragraph 11 or any failure by ▇▇. ▇▇▇▇▇ to comply with the covenants not to ▇▇▇ and other covenants in Paragraphs 13 and 14 shall be deemed a material breach of the Agreement and the Company shall be entitled to cease providing ▇▇. ▇▇▇▇▇ with the payments specified in Paragraph 5 and the outplacement services specified in Paragraph 6, and seek recovery of some or all of such amounts paid under Paragraphs 5 and 6 prior to such breach.
(f) Acknowledgements and Authorizations. ▇▇. ▇▇▇▇▇ acknowledges that the covenants in Paragraph 12 have a unique, very substantial and immeasurable value to the Company. ▇▇. ▇▇▇▇▇ recognizes, acknowledges and agrees that the business of the Company is, and is expected to be, conducted throughout the United States and that the geographical limitations in the non-competition covenant set forth in Paragraph 12(b) are therefore appropriate. ▇▇. ▇▇▇▇▇ further acknowledges and agrees that the covenant not to compete set forth in Paragraph 12(b) and its geographic coverage and duration of time are reasonable in scope. ▇▇. ▇▇▇▇▇ hereby authorizes the Company to notify his actual or prospective future employers of the terms of this Paragraph 12 and his responsibilities hereunder.
(g) Injunctive Relief. Without limiting the rights of the Company to pursue and obtain any other legal and/or equitable remedy available to it for any breach by ▇▇. ▇▇▇▇▇ of the covenants contained in Paragraphs 10, 11 or 12, ▇▇. ▇▇▇▇▇ further acknowledges that a breach of those covenants would cause a loss to the Company which could not reasonably or adequately be compensated in damages in an action at law, that remedies other than injunctive relief could not fully compensate the Company for a breach of those covenants and that, accordingly, the Company shall be entitled to injunctive relief to prevent or stop any breach or continuing breaches of ▇▇. ▇▇▇▇▇’▇ covenants set forth in Paragraphs 10, 11 or 12. ▇▇. ▇▇▇▇▇ and the Company intend that if, in any action before any Court empowered to enforce those covenants, the Court finds any term, restriction, covenant or promise to be unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the minimum extent necessary to make it enforceable by such Court.
13. General Release and Covenant Not to ▇▇▇.
(a) In consideration of the payments and benefits provided and actions taken by the Company as set forth in this Agreement, ▇▇. ▇▇▇▇▇ knowingly and voluntarily agrees not to ▇▇▇, waives and releases forever whatever claims he may have against the Company as of the date of this Agreement, including its or their respective officers, directors, partners, shareholders, employees, associates, agents, attorneys and representatives (collectively referred to as the “Released Parties”), including but not limited to:
claims based upon or relating to his hire by the Company; any aspect of the work he performed; any aspect of his employment relationship with the Company, including his compensation; any oral or written agreements regarding his employment relationship with the Company; or the separation of his employment or the facts relating to or surrounding any aspect of that separation, except for any claims that he may have under the Agreement. This release and waiver includes, without limitation, any claims he may have, whether known or unknown, in connection with any rights under federal, state or local law, including, but not limited to, claims of breach of contract, wrongful termination, unjust dismissal, defamation, libel or slander, or under any federal, state or local law dealing with discrimination based on age, race, sex, national origin, handicap, religion, disability or sexual preference. This release of claims includes, but is not limited to, all claims arising under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Family and Medical Leave Act, Employee Retirement Income Security Act of 1974, state fair employment, human rights and/or civil rights laws, and all other federal, state and local labor and anti-discrimination laws, the common law and any other purported restriction on an employer’s right to terminate the employment of employees, but shall exclude ▇▇. ▇▇▇▇▇’▇ rights to enforce this Agreement, his rights to vested benefits, if any, to which he is legally entitled, or his rights to be indemnified by the Company with respect to his activity prior to the Separation Date.
(b) ▇▇. ▇▇▇▇▇’▇ signature below constitutes his representation and warranty that he has not suffered an on the job or occupational injury or incurred any wage or overtime claims, including without limitation, any claims pursuant to the Fair Labor Standards Act, that could be asserted against any Released Party. Moreover, ▇▇. ▇▇▇▇▇ expressly waives his right to recovery of any type, including damages, reinstatement or attorneys’ fees, in any administrative or court action, whether federal, state, local or whether brought by him or on his behalf, related to any of the matters actually released herein. He also waives and releases any right to become, and promises not to consent to become, a member of any class or collective action in a case in which claims are asserted against any Released Party. If ▇▇. ▇▇▇▇▇ is made a member of a class or collective action in any proceeding without his prior knowledge or consent, he agrees to opt out of the class or collective action at the first opportunity.
(c) ▇▇. ▇▇▇▇▇ acknowledges and agrees that the payments and benefits set forth in this Agreement shall be in lieu of any other severance benefits that may be payable to him upon his termination of employment with the Company. In consideration for such payments and benefits, ▇▇. ▇▇▇▇▇ hereby waives any severance benefits to which he otherwise might be entitled.
(d) ▇▇. ▇▇▇▇▇ acknowledges and agrees to sign the General Release and Covenant Not to ▇▇▇ on December 31, 2013 attached hereto as Exhibit B.
14. Resolution of All Claims. ▇▇. ▇▇▇▇▇ covenants and agrees that, except as may be compelled by law, he will not raise or in any way pursue any claims which are being released and discharged in this Agreement in any forum of any kind, including, without limitation, the federal, state or local courts, or federal, state or local agencies or offices of any kind, be they administrative, regulatory, judicial, quasi-judicial, or otherwise.
15. Acknowledgment of Sufficient Time to Consider this Agreement and to Consult With a Lawyer. ▇▇. ▇▇▇▇▇ expressly acknowledges that he has been informed that he may consult with a lawyer of his choice, that he has consulted with his lawyer and that he has had sufficient time to consult with his lawyer prior to executing this Agreement. ▇▇. ▇▇▇▇▇ acknowledges that pursuant to this Agreement he is not waiving rights or claims that may arise after the date this Agreement is executed (although such rights or claims may be waived in connection with ▇▇. ▇▇▇▇▇’▇ execution on December 31, 2013 of the General Release and Covenant Not to ▇▇▇, as described in Paragraph 13(d)). ▇▇. ▇▇▇▇▇ further acknowledges that he has been informed that he is entitled to a period of at least twenty-one (21) days within which to consider this Agreement, but that he may execute this Agreement at any time prior to the expiration of the 21-day period. ▇▇. ▇▇▇▇▇ further acknowledges that if he does not execute this Agreement on or before December 18, 2013, this Agreement shall be null and of no effect.
16. Revocation Right and Effective Date. Within seven (7) days following the date of ▇▇. ▇▇▇▇▇’▇ execution of this Agreement, ▇▇. ▇▇▇▇▇ shall have the right to revoke this Agreement by serving within such 7-day period written notice of his revocation upon ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, United States Cellular Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. If ▇▇. ▇▇▇▇▇ does not revoke this Agreement during this seven (7) day period, this Agreement shall become effective on the eighth day after the date of ▇▇. ▇▇▇▇▇’▇ execution of this Agreement and ▇▇. ▇▇▇▇▇ shall have no further right to revoke this Agreement.
17. Knowing and Voluntary Release. ▇▇. ▇▇▇▇▇ acknowledges that in releasing and waiving any claims and rights that he has or may have against the Released Parties, including those under the Age Discrimination in Employment Act, he does so knowingly and voluntarily, after the opportunity to consult with legal counsel, in exchange for consideration in addition to anything of value to which he already is entitled.
18. Notices. All notices and other communications required or permitted under this Agreement shall be deemed to have been duly given and made if in writing and if served personally on the party for whom intended or by being deposited, postage prepaid, certified or registered mail, return receipt requested, in the United States mail bearing the address shown below for each such party or such other address as that party may designate in writing hereafter
(a) If to the Company: (b) If to ▇▇. ▇▇▇▇▇:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
United States Cellular Corporation [Address]
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy which shall not With a copy which shall not
constitute notice to: constitute notice to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Sidley Austin LLP Levenfeld ▇▇▇▇▇▇▇▇▇▇, LLC
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19. Non-admission. Nothing herein shall be deemed to constitute an admission of wrongdoing by ▇▇. ▇▇▇▇▇, the Company or any of the other Released Parties. Neither this Agreement nor any of its terms shall be used as an admission or introduced as evidence as to any issue of law or fact in any proceeding, suit or action, other than an action to enforce this Agreement.
20. Waiver. The Company’s future waiver of a breach by ▇▇. ▇▇▇▇▇ of any provision of this Agreement or failure to enforce any such provision with respect to him shall not operate or be construed as a waiver of any subsequent breach by ▇▇. ▇▇▇▇▇ of any such provision or of the Company’s right to enforce any such provision with respect to ▇▇. ▇▇▇▇▇. No act or omission of the Company shall constitute a waiver of any of its rights hereunder except for a written waiver signed by the Company’s President and Chief Executive Officer.
21. Section 409A of the Internal Revenue Code. All payments and benefits under this Agreement are intended to be exempt from the requirements of Section 409A of the Internal Revenue Code (“Section 409A”) to the maximum extent possible. To the extent such a payment or benefit is subject to the requirements of Section 409A, such payment or benefit is intended to comply with such requirements to the maximum extent possible. This Agreement shall be interpreted and construed in accordance with such intent. Each payment or benefit provided for under this Agreement shall constitute a “separately identified” amount within the meaning of Treasury Regulation §1.409A-2(b)(2). Notwithstanding the foregoing, no particular tax result with respect to any income recognized in connection with the Agreement is guaranteed, and ▇▇. ▇▇▇▇▇ solely shall be responsible for any taxes, penalties or interest imposed on ▇▇. ▇▇▇▇▇ in connection with this Agreement (including under Section 409A).
22. Entire Agreement/Ratification. The terms contained in this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior negotiations, representations or agreements relating thereto whether written or oral, with the exception of any other agreements concerning confidentiality, trade secrets, non-solicitation or non-competition, all of which shall remain in full force and effect, and are hereby confirmed and ratified. ▇▇. ▇▇▇▇▇ represents that in executing this Agreement, he has not relied upon any representation or statement not set forth herein. No amendment or modification of this Agreement shall be valid or binding upon the parties unless in writing and signed by both parties.
23. Governing Law.
(a) This Agreement shall be construed in accordance with, and governed by, the internal Laws of the State of Illinois without giving effect to principles of conflicts of law. Each party agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, whether in tort or contract or at law or in equity, exclusively in the United States District Court for the Northern District of Illinois or the courts of the State of Illinois (the “Chosen Courts”) and (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts for purposes of any such action or proceeding, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice, including the original or a copy of such process, is given and receipt thereof evidenced in accordance with Paragraph 18.
(b) The parties hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.
▇▇. ▇▇▇▇▇ AND THE COMPANY EXPRESSLY STATE THAT THEY HAVE READ THIS EMPLOYMENT AND GENERAL RELEASE AGREEMENT, THAT THEY UNDERSTAND EACH OF ITS TERMS, AND THAT THEY HAVE ENTERED INTO IT VOLUNTARILY AND INTEND TO BE BOUND THEREBY.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ UNITED STATES CELLULAR
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated: December 16, 2013 Dated: December 17, 2013
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EXHIBIT A
U.S. Cellular
84▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
773-399-8900p
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
December 16, 2013
Dear Sir or Madam:
▇▇▇▇▇▇ ▇▇▇▇▇ joined US Cellular on April 15, 2011 in a newly created role of Executive Vice President of Sales and Customer Service and led or Sales and Customer Service teams and their support organizations until his resignation effective December 31, 2013.
US Cellular is an award winning customer focused organization and ▇▇▇▇▇▇ was a devoted leader with a passion for our customers and the associates who served them. Carter’s dedicated leadership was very valuable to the Sales and Customer Service organizations. His leadership style influenced many and resonated with associates and agents across the organization.
▇▇▇▇▇▇ transformed our approach to reaching and serving customers. He formed a strategic vision for Sales and Customer Service and actively led his organizations through the changes needed to reach those visions. His vision inspired a multi-channel focus and increased the company’s focus on optimizing each channel. Our approach to managing our distribution footprints, store investment, our business-to-business channel and our relationships with our agents all changed under his leadership. ▇▇▇▇▇▇ led the Wal-Mart integration which was a major driver of incremental growth and won our parent company’s highest honor, a TOPS Award for 2012.
We appreciate his many contributions and are confident that his leadership will have a positive influence on the organization he is a part of.
Sincerely
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Director of Human Resources
U.S. Cellular
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GENERAL RELEASE AND COVENANT NOT TO ▇▇▇
This General Release and Covenant Not to ▇▇▇ (the "Release”) confirms the following understanding and agreements between United States Cellular Corporation on behalf of itself and its subsidiaries, partnerships, affiliates, business units and related entities (“the Company”) and ▇▇▇▇▇▇ ▇▇▇▇▇ (“▇▇. ▇▇▇▇▇”).
1. General Release and Covenant Not to ▇▇▇.
(a) In consideration of the payments and benefits provided and actions taken by the Company as set forth in the Employment and General Release Agreement dated ______________________, 2013 (the "Agreement”), ▇▇. ▇▇▇▇▇ knowingly and voluntarily agrees not to ▇▇▇, waives and releases forever whatever claims he may have against the Company as of the date of this Agreement, including its or their respective officers, directors, partners, shareholders, employees, associates, agents, and representatives (collectively referred to as the “Released Parties”), including but not limited to: claims based upon or relating to his hire by the Company; any aspect of the work he performed; any aspect of his employment relationship with the Company, including his compensation; any oral or written agreements regarding his employment relationship with the Company; or the separation of his employment or the facts relating to or surrounding any aspect of that separation, except for any claims that he may have under the Agreement. This release and waiver includes, without limitation, any claims he may have, whether known or unknown, in connection with any rights under federal, state or local law, including, but not limited to, claims of breach of contract, wrongful termination, unjust dismissal, defamation, libel or slander, or under any federal, state or local law dealing with discrimination based on age, race, sex, national origin, handicap, religion, disability or sexual preference. This release of claims includes, but is not limited to, all claims arising under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Family and Medical Leave Act, state fair employment, human rights and/or civil rights laws, and all other federal, state and local labor and anti-discrimination laws, the common law and any other purported restriction on an employer’s right to terminate the employment of employees, but shall exclude ▇▇. ▇▇▇▇▇'▇ rights to enforce the Agreement and this Release, his rights to vested benefits, if any, to which he is legally entitled, or his right to be indemnified by the Company with respect to his activity prior to his separation from the Company.
(b) ▇▇. ▇▇▇▇▇'▇ signature below constitutes his representation and warranty that he has not suffered an on the job or occupational injury or incurred any wage or overtime claims, including without limitation, any claims pursuant to the Fair Labor Standards Act, that could be asserted against any Released Party. Moreover, ▇▇. ▇▇▇▇▇ expressly waives his right to recovery of any type, including damages, reinstatement or attorneys’ fees, in any administrative or court action, whether federal, state, local or whether brought by him or on his behalf, related to any of the matters actually released herein. He also waives and releases any right to become, and promises not to consent to become, a member of any class or collective action in a case in which claims are asserted against any Released Party. If ▇▇. ▇▇▇▇▇ is made a member of a class or collective action in any proceeding without his prior knowledge or consent, he agrees to opt out of the class or collective action at the first opportunity.
(c) ▇▇. ▇▇▇▇▇ acknowledges and agrees that the payments and benefits referred to in this Release shall be in lieu of any other severance benefits that may be payable to him upon his termination of employment with the Company. In consideration for such payments and benefits, ▇▇. ▇▇▇▇▇ hereby waives any severance benefits to which he otherwise might be entitled.
2. Acknowledgment of Sufficient Time to Consider this Agreement and to Consult With a Lawyer. ▇▇. ▇▇▇▇▇ expressly acknowledges that he has been informed that he may consult with a lawyer of his choice, that he has consulted with his lawyer and that he has had sufficient time to consult with his lawyer prior to executing this Release. ▇▇. ▇▇▇▇▇ acknowledges that he is not waiving rights or claims that may arise after the date this Release is executed. ▇▇. ▇▇▇▇▇ further acknowledges that he has been informed that he is entitled to a period of at least twenty-one (21) days within which to consider this Release, but that he may execute this Release at any time prior to the expiration of the 21-day period.
3. Revocation Right. Within seven (7) days following the date of ▇▇. ▇▇▇▇▇’▇ execution of this Release, ▇▇. ▇▇▇▇▇ shall have the right to revoke this Release by serving within such seven (7) day period written notice of his revocation upon ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 8410 West Bryn Mawr Avenue, Chicago, Illinois 60631. If ▇▇. ▇▇▇▇▇ does not revoke this Release during this seven (7) day period, this Release shall become effective on the eighth day after the date of ▇▇. ▇▇▇▇▇’▇ execution of this Release and ▇▇. ▇▇▇▇▇ shall have no further right to revoke this Release, provided, however that any subsequent revocation of the Agreement in accordance with its terms also shall constitute a revocation of this Release.
4. Knowing and Voluntary Release. ▇▇. ▇▇▇▇▇ acknowledges that in releasing and waiving any claims and rights that he has or may have against the Released Parties, including those under the Age Discrimination in Employment Act, he does so knowingly and voluntarily, after the opportunity to consult with legal counsel, in exchange for consideration in addition to anything of value to which he already is entitled.
5. Notices. All notices and other communications required or permitted under this Agreement shall be deemed to have been duly given and made if in writing and if served personally on the party for whom intended or by being deposited, postage prepaid, certified or registered mail, return receipt requested, in the United States mail bearing the address shown below for each such party or such other address as that party may designate in writing hereafter
(a) If to the Company: (b) If to ▇▇. ▇▇▇▇▇:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
United States Cellular Corporation [ADDRESS]
84▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy which shall not with a copy which shall not
constitute notice to: constitute notice to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sidley Austin LLP
1 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. Non-admission. Nothing herein shall be deemed to constitute an admission of wrongdoing by ▇▇. ▇▇▇▇▇, the Company or any of the other Released Parties. Neither this Release nor any of its terms shall be used as an admission or introduced as evidence as to any issue of law or fact in any proceeding, suit or action, other than an action to enforce this Release.
7. Waiver. The Company’s future waiver of a breach by ▇▇. ▇▇▇▇▇ of any provision of this Release or failure to enforce any such provision with respect to him shall not operate or be construed as a waiver of any subsequent breach by ▇▇. ▇▇▇▇▇ of any such provision or of the Company’s right to enforce any such provision with respect to ▇▇. ▇▇▇▇▇. No act or omission of the Company shall constitute a waiver of any of its rights hereunder except for a written waiver signed by the Company’s President and Chief Executive Officer,
8. Reaffirmation. The terms contained in this Release supplement the Employment and General Release Agreement dated _______________________, 2013. All terms of that Agreement remain in effect and are hereby reaffirmed. ▇▇. ▇▇▇▇▇ represents that in executing this Release, he has not relied upon any representation or statement not set forth herein. No amendment or modification of this Release shall be valid or binding upon the parties unless in writing and signed by both parties.
9. Governing Law.
(a) This Release shall be construed in accordance with, and governed by, the internal Laws of the State of Illinois without giving effect to principles of conflicts of law. Each party agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Release, whether in tort or contract or at law or in equity, exclusively in the United States District Court for the Northern District of Illinois or the courts of the State of Illinois (the “Chosen Courts”) and (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts for purposes of any such action or proceeding, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice, including the original or a copy of such process, is given and receipt thereof evidenced in accordance with Paragraph 5.
(b) The parties hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or related to this Release.
▇▇. ▇▇▇▇▇ AND THE COMPANY EXPRESSLY STATE THAT THEY HAVE READ THIS RELEASE AND COVENANT NOT TO ▇▇▇, THAT THEY UNDERSTAND EACH OF ITS TERMS, AND THAT THEY HAVE ENTERED INTO IT VOLUNTARILY AND INTEND TO BE BOUND THEREBY.
▇▇▇▇▇▇ ▇▇▇▇▇ UNITED STATES CELLULAR
CORPORATION
By: By:
▇▇▇▇▇▇ ▇▇▇▇▇
Dated: _______________________, 2013 Dated: _______________________, 2013