EXHIBIT 10.27
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (herein the "Agreement") is entered into between
Cellco Partnership and S. ▇▇▇▇ ▇▇▇▇▇▇ (herein the "Executive"), effective as of
the later of April 3, 2000 or the date of the Stage I closing of the wireless
joint venture between ▇▇▇▇ Atlantic Corporation ("BAC") and Vodafone AirTouch
Plc. References to the "Company" herein shall include Cellco Partnership, any
company controlled by or under common control with Cellco Partnership, any
company which subsequent to the effective date of this Agreement carries on all
or substantially all of the business of Cellco Partnership and affiliates of
Cellco Partnership.
WHEREAS, the Company desires to hire Executive and Executive desires to
accept employment by the Company; and
WHEREAS, the services to be rendered by Executive are, and for the term of
this Agreement will continue to be, of a unique character and of incalculable
value to the Company; and
WHEREAS, one of the purposes of the Company is, through contracts and other
business relationships, to operate a national, unified, wireless communications
business, including without limitation, cellular, PCS, paging and other CMRS
businesses; and
WHEREAS, if Executive were to engage in "competitive activities," as
defined below, during the term of this Agreement or in violation of the
restrictions set forth in this Agreement, the Company would suffer irreparable
injury; and
WHEREAS, the success of the Company depends in substantial part on the
competitive advantages afforded by the management and technical skills provided
by Executive; and
WHEREAS, Executive desires to participate in a certain long-term incentive
plan to be designed by the Company;
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. Term. Executive agrees to serve the Company, and the Company agrees to
employ Executive, for a term of three years from the effective date of this
Agreement, subject to the termination provisions set forth in Sections 4 and 5
(herein the "Term"). If at the expiration of the Term the parties have not
entered into a new agreement, then this Agreement shall be extended on a month-
to-month basis, except as expressly modified by the parties in writing.
2. Duties. During the Term, including any month-to-month extensions
pursuant to Section 1, Executive shall:
CONFIDENTIAL
(a) faithfully and diligently perform all such acts and duties and furnish
such services as the Company, its Board of Representatives, its Chief Executive
Officer, its Chief Operating Officer, or his or their designees shall direct,
and perform all acts in the ordinary course of the Company's business reasonably
necessary to the advancement of the Company's best interests;
(b) devote his full time, energy and skill to the business of the Company
and to the promotion of the Company's best interests, except during vacations
and other authorized absences; and
(c) comply with all federal, state and local laws and any applicable
foreign laws, and abide by the Company's code of business conduct and other
policies of the Company while discharging his obligations under this Agreement
or otherwise engaging in conduct, whether personal or business-related, which
may impact the Company's business.
3. Compensation.
(a) The Company shall compensate Executive as set forth below for all
services performed by him, subject to review from time to time in accordance
with the Company's practices for similarly situated executives:
(i) Base salary at the annualized rate of $320,000, payable in
periodic installments in accordance with the Company's regular payroll
practices;
(ii) Short Term Incentive at a target rate of 60% of base salary, in
accordance with Company's Short Term Incentive Plan;
(iii) Reimbursement for all reasonable expenses incurred in the
performance of Executive's duties hereunder, including but not limited to
travel, accommodation, entertainment, and other similar expenses, in accordance
with the Company's policies and directives from Executive's superiors;
(iv) Participation, if otherwise eligible, in all individual or group
life insurance, health insurance, accident insurance, disability insurance,
vacation and other welfare benefit plans maintained by the Company and provided
generally to similarly situated executives;
(v) An annual automobile allowance of $9,000.00, paid periodically;
and
(vi) Such other additional or special compensation, benefits and
perquisites as the Company may generally provide from time to time to similarly
situated executives.
(b) During the first year of the Term, the Company shall provide Executive
with a long-term incentive grant equal in value to 350% of Executive's base
salary in 2000. In the second and third years of the Term, the Company shall
provide Executive with additional long-term incentive grants comparable in value
to the value of such grants provided to similarly situated executives based on
market conditions and in
-2-
CONFIDENTIAL
accordance with the Company's long-term incentive plan, subject to Board
approval. Such grants will be issued not as compensation for services rendered,
but rather as an inducement to Executive to accept employment with the Company
and to enter into this Agreement.
4. Termination of Executive's Employment by the Company.
(a) Death or Disability. The Executive's employment with the Company will
terminate automatically upon Executive's death, or upon Executive's continuing
disability on the date on which his short-term disability benefits expire if at
that time he remains unable, even with reasonable accommodation, to perform the
essential duties and responsibilities he was performing prior to the
commencement of eligibility for such benefits. Termination of employment due to
disability shall not constitute a bar to Executive's eligibility for long-term
disability benefits if Executive would have qualified for such benefits in the
absence of the termination of his employment.
(b) For Cause, The Company may terminate Executive's employment for Cause,
in writing and without prior notice, upon any of the following reasons:
(i) breach by Executive of any of the covenants he makes or material
obligations he assumes under this Agreement; or
(ii) insubordination or failure to perform job responsibilities with
full-time and good-faith efforts; or
(iii) conviction of, or plea of nolo contendere to, criminal charges
(other than a traffic citation or minor misdemeanor), or conduct which would, if
prosecuted, warrant conviction on such charges under a "beyond a reasonable
doubt" standard of proof; or
(iv) material violation of the Company's Employee Code of Conduct or
other policies of the Company, including, by way of example, a violation of the
employer's voucher or expense reimbursement rules; or
(v) conduct which, if it were known by the public, would harm the
reputation of the Company.
(c) Without Cause. The Company may terminate the Executive's employment at
any time for any reason other than those set forth in Sections 4(a), 4(b), or
4(d) in writing and without prior notice. In such case, Executive shall be
eligible to receive liquidated damages as set forth in Section 6(b). In any
proceeding conducted to determine whether Executive's employment was terminated
for Cause, if the finder of fact determines that Executive's employment was
terminated other than for Cause, then his employment shall be deemed to have
been terminated Without Reason and the remedy shall be limited to liquidated
damages as provided in Section 6(b).
(d) Nonrenewal. The Company may terminate Executive's employment by
providing written notice of its intent not to renew this Agreement for an
additional term of one or more years, in which event Executive's employment
shall terminate as of the last
-3-
CONFIDENTIAL
day of the Term (including any month-to-month extensions pursuant to Section 1),
and Executive shall be entitled to liquidated damages as provided in Section
6(c) hereof.
5. Termination by Executive.
(a) Without Reason. Executive may terminate his employment at any time
Without Reason. Without limiting the meaning of the term "Without Reason," it
shall constitute termination of employment Without Reason if, at the expiration
of the Term (including any month-to-month extensions pursuant to Section 1),
Executive refuses to sign a renewal or extension of this Agreement or a
successor agreement for an addition term of one or more years, provided that
such renewal, extension or successor agreement does not reduce Executive's then
current base salary or short- or long-term incentive targets.
(b) For Good Reason. Executive may terminate his employment for Good
Reason, but only on 60 days' written notice of intent to resign for Good Reason.
In such case, Executive shall be eligible to receive liquidated damages on the
terms set forth in Section 6(b). Executive shall be deemed to have Good Reason
to terminate his employment if no event has occurred which would constitute
Cause for the Company to terminate his employment, and if any of the following
events has occurred within six months prior to the effective date of the
termination of his employment:
(i) assignment, without written consent of the Executive, to a
position which involves more than a change in reporting structure, but also
results in materially less authority and responsibility than immediately before
such assignment; or
(ii) reduction in Executive's base salary; or
(iii) reduction in Executive's short- or long-term incentive targets
below the targets of similarly situated executives; or
(iv) "Change in Control," which shall mean (1) a sale or transfer of
more than 50% of the Company's assets to an entity other than ▇▇▇▇ Atlantic
Corporation or any affiliate or subsidiary or successor thereof (collectively
"BA Corp."), (2) a sale of partnership interests such that BA Corp. owns less
than 50% of the partnership interests in the Company or (3) a sale of equity
interests in the Company following which BA Corp. owns less than 50% of the
common stock of the Company; provided that as a result of (1), (2) or (3) BA
Corp. ceases to have actual management control of the Company; and provided
further, that neither (1), nor (2) nor (3) shall constitute a "Change in
Control" if the transaction at issue is an initial public offering. "Actual
management control" shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management of the Company as it may be
constituted following the event described in (1), (2) or (3) above (including,
without limitation, the power to appoint a majority of the Board of
Representatives or other comparable governing body of such entity), whether
through the beneficial ownership of voting securities or other ownership
interest, by contract or otherwise, whether the loss of actual management
control is voluntary or involuntary or the result of any merger, tender offer,
stock purchase, other stock acquisition, merger, consolidation,
recapitalization, reverse split, or sale or transfer of assets.
-4-
CONFIDENTIAL
(c) Upon Expiration of This Agreement. The Executive may terminate his
employment if within 90 days after the expiration of the Term, the Company (i)
does not offer a renewal, extension or successor agreement for an additional
term of one or more years, or (ii) offers a renewal, extension or successor
agreement which reduces Executive's then-current base salary or short- or long-
term incentive targets. In such case, Executive shall be eligible to receive
liquidated damages on the terms set forth in Section 6(c).
6. Post-Termination Liquidated Damages Payable by the Company.
(a) If the Company terminates Executive's employment for Cause or by reason
of disability or death, or if Executive terminates his employment Without
Reason, then the Company shall have no further obligations to Executive beyond
the date of termination of employment, other than to provide compensation owed
for services previously rendered pursuant to Section 3(a); provided, however,
that if the termination of Executive's employment is by reason of disability or
death, then Executive (in the case of disability) or Executive's executor or
administrator (in the case of death) may exercise Executive's vested long term
incentive grants pursuant to the terms of the long-term incentive plan, in
accordance with the following formula: number of options per grant multiplied by
the number of months Executive was employed between the date of the grant and
the date of Executive's last day of employment, divided by 36.
(b) If the Company terminates Executive's employment Without Cause, or if
Executive terminates his employment with Good Reason on proper notice, the
Company shall provide to Executive, as liquidated damages, (i) an amount equal
to 150% of Executive's annualized base salary and short-term incentive target at
the time of termination, payable in 18 equal monthly installments, subject to
required payroll deductions, and (ii) continued participation in the Company's
medical and dental insurance plans for 18 months, at the Company's expense but
subject to any employee contribution requirements applicable as of Executive's
last day of active employment (as such requirements may thereafter be revised
generally from time to time). Payment of such liquidated damages shall not be
deemed compensation for prior services rendered, but rather shall be deemed a
settlement of the parties' obligations to each other, as provided below. In
addition, Executive's unvested long-term incentive grants shall vest in
accordance with the following formula: number of options per grant multiplied by
the number of months Executive was employed between the date of the grant and
the date of Executive's last day of employment, divided by 36. The time when
options so vested may be exercised shall be determined by reference to the terms
of the long-term incentive plan. Company also shall pay Executive cash in lieu
of accrued but unused vacation days, at a daily rate equal to 1/260th of
Executive's annualized base salary rate.
(c) If Executive's employment is terminated by the Company pursuant to
Subsection 4(d) or by Executive pursuant to Subsection 5(c), the Company shall
provide to Executive, as liquidated damages, an amount equal to (i) 100% of
Executive's annualized base salary and short-term incentive target at the time
of termination, payable in 12 equal monthly installments, subject to required
payroll deductions, and (ii) continued participation in the Company's medical
and dental insurance plans for 12 months, at the Company's expense but subject
to any employee
-5-
CONFIDENTIAL
contribution requirements applicable as of Executive's last day of active
employment (as such requirements may thereafter be revised generally from time
to time). Payment of such liquidated damages shall not be deemed compensation
for prior services rendered, but rather shall be deemed a settlement of the
parties' obligations to each other, as provided below. In addition, Executive's
unvested long-term incentive grants shall vest in accordance with the terms of
the long-term incentive plan. Company also shall pay Executive cash in lieu of
accrued but unused vacation days, at a daily rate equal to 1/260th of
Executive's annualized base salary rate.
(d) (i) Liquidated damages under Sections 6(b) or 6(c) shall not be
payable if the Executive is in breach of this Agreement at the time of the
termination of his employment.
(ii) Upon Executive's breach of any of his covenants or continuing
obligations under Sections 7 through 10 of this Agreement, Executive's right, if
any, to payment of liquidated damages after the date of such breach shall be
forfeited.
(e) Executive's right to liquidated damages hereunder shall be conditioned
on his agreeing to and executing, within the time specified by the Company, a
release in such form as reasonably may be required by the Company. The Company
shall have no obligation to pay liquidated damages unless and until such release
is signed. The validity and enforceability of such release shall not be impaired
if, after signing it, Executive's right to continued payment of liquidated
damages is forfeited pursuant to Section 6(d)(ii).
(f) Liquidated damages hereunder shall be in lieu of any right Executive
otherwise may have to receive benefits under any severance or separation pay
plan, program or practice which may otherwise be applicable to him, and he
hereby waives any right to receive any such severance benefits.
7. Prohibition Against Competitive Activities.
(a) Covenant Not to Engage in Competitive Activities. Executive
acknowledges that by virtue of his employment with the Company, he will obtain
knowledge, training, experience and access to the Company's proprietary and
confidential information to such an extent that if he were to work for or
otherwise provide services to a competitor of the Company, that competitor
inevitably would gain an unfair competitive advantage by means of its access to
Executive's knowledge, training, experience and familiarity with the Company.
Therefore, in consideration for (i) the offer of this Agreement for a specific
term, (ii) the right to post-termination liquidated damages on the terms
provided in Section 6, and (iii) the opportunity to participate in the Company's
long-term incentive plan, Executive covenants to the fullest extent permitted by
law that he will not engage in Competitive Activities (as that term is defined
in Section 7(b)) while he remains employed by the Company and until one year
after the date of termination of his employment for any reason (and, in the case
of activities described in Section 7(b)(iii), until two years after the date of
termination of his employment for any reason).
-6-
CONFIDENTIAL
(b) Competitive Activities Defined. For purposes of this Agreement,
"Competitive Activities" means business activities in the wireless
communications industry within or adjacent to the Company's geographic footprint
relating to products or services of the same or similar type as those of the
Company (including products or services the Company planned to offer in
accordance with any Business Plan approved by the Board of Representatives prior
to the termination of Executive's employment); provided, however, that it shall
not be considered Competitive Activity for Executive to accept employment by any
entity which is contributing assets to the Company or any affiliate of such
entity. Restricted activities include, but are not limited to:
(i) personally working for, owning, managing, operating,
controlling or participating in the ownership, management, operation or control
of, or providing consulting or advisory services to, any business engaged in
Competitive Activities; provided, however, that Executive's purchase or holding
of securities of a publicly-traded company, for investment purposes, shall not
be prohibited so long as Executive's equity interest in any such company is less
than one percent;
(ii) maintaining any appreciable financial interest in any business
engaged in Competitive Activities;
(iii) soliciting, inducing or influencing employees of the Company or
former employees who have worked for the Company within the preceding six months
to engage in Competitive Activities;
(iv) interfering with the relationship of the Employer with any of
its customers, agents, representatives, suppliers or vendors under contract; and
(v) engaging in or planning to engage in Competitive Activities
while still employed by the Company.
(c) Forfeiture of Benefits. Executive acknowledges that any violation of
any of the covenants of this Section 7 may result in the forfeiture of rights to
benefits or compensation under one or more benefit or compensation plans of the
Company which contain such forfeiture provisions, and will result in his
obligation to pay liquidated damages as provided in Section 11.
8. Prohibition Against Disclosure of Proprietary Information: Intellectual
Property Rights.
(a) Duty to Preserve Confidentiality. Executive acknowledges that he will
be privy to strategic and sensitive business information, and that he will have
access to confidential and proprietary information of the Company. Therefore,
during the course of Executive's employment and after such employment ends for
any reason, (i) Executive will treat with utmost confidentiality all such
strategic and sensitive business information and all such confidential and
proprietary information (including, without limitation, "Proprietary
Information" as that term is defined in Section 8(b) below), and (ii) except as
required to conduct the business of the Company or as authorized in writing by
the Company, Executive will not publish, disclose or use such information or
authorize anyone else to publish, disclose or use it. Executive acknowledges
that, in
-7-
CONFIDENTIAL
addition to his duties under this Agreement, he has common law and statutory
duties as an employee to preserve the confidentiality of the Company's trade
secrets, and will continue to have such duties after his employment terminates
for any reason.
(b) Definition of Proprietary Information. "Proprietary information"
includes, but is not limited to, information in the possession or control of the
Company that has not been fully disclosed in a writing which has been generally
circulated to the public at large, and which gives the Company an opportunity to
obtain or maintain advantages over its current and potential competitions.
"Proprietary information" includes, without limitation,
(i) marketing plans, strategic or tactical business plans, product
plans and designs, undisclosed financial data, agreements with third parties,
technical information, computer software or other apparatus programs, databases,
budgets and projections, whether in draft or final form:
(ii) ideas, processes, methods, techniques, systems, patented or
copyrighted information, models, devices, programs, computer software or related
information and documentation;
(iii) documents relating to regulatory matters and correspondence
with governmental entities, including classified National Security information;
(iv) pricing and cost data;
(v) reports and analyses of business prospects;
(vi) business transactions which are contemplated or planned;
(vii) research data;
(viii) employee information and data, including knowledge of skills,
abilities, performance and compensation;
(ix) information relating to specific users and purchasers of the
Company's products or services or to such users and purchasers generally, such
as customer names, customer contacts, terms of customer contracts, customer
proposals, types, locations, and quantities of service, calling patterns and
billing information; and
(x) other confidential matters pertaining to or known by the
Company, including information that is proprietary to others which the Company
is bound to protect, such as vendor or customer proprietary information or
information provided in conjunction with non-disclosure or confidentiality
agreements with third parties.
(c) Obligation to Return Company Property. Upon the termination of
Executive's employment for any reason, and prior to his last day of active
employment, he shall return to the Company all property of the Company in his
possession, custody and control, including without limitation, the originals and
all copies of all records, papers, programs, computer software, documents and
other materials which contain
-8-
CONFIDENTIAL
Proprietary Information, as defined in Section 8(b), and all computer and other
equipment of the Company.
(d) Intellectual Property.
(i) Executive will promptly disclose to the Company, in confidence,
all inventions, discoveries, designs, improvements, technical information,
ideas, databases, computer software or other apparatus programs, related
documentation, and other works of original authorship, whether or not
patentable, copyrightable or susceptible to other forms of protection, which he
makes, creates, develops, writes or conceives during the course of his
employment by the Company (hereinafter, "Innovations").
(ii) Executive hereby assigns and grants to the Company all rights,
title and interest in and to all Innovations. On request by the Company,
Executive will execute a specific assignment to the Company of all rights, title
and interest to any particular Innovation or group of Innovations, and will
execute all applications for patent, copyright or other forms of protection for
such Innovations in the United States and in other countries.
(iii) An Innovation will be deemed not to have been made in the
course of Executive's employment by the Company if it (1) was developed on his
own time and (2) no equipment, supplies, facilities or trade secret information
of the Company were used in developing it. However, even if an Innovation was
developed entirely on Executive's own time, and even if no equipment, supplies,
facilities or trade secret information of the Company were used in developing
it, an Innovation shall be deemed to have been made in the course of Executive's
employment if at the time of its conception or reduction to practice it related
to the Company's business or to the Company's actual or demonstrably anticipated
research or development, or if it resulted from any work that Executive
performed for the Company.
(iv) During the course of Executive's employment and after such
employment ends for any reason, (1) Executive will treat with utmost
confidentiality all Innovations and all private, trade secret and proprietary
information concerning them, and (2) except as required by the conduct of the
business of the Company or as authorized in writing by the Company, Executive
will not publish, disclose or use such information or authorize anyone else to
publish, disclose or use it. When Executive's employment terminates, he will
relinquish all documents, equipment and records containing such information to
the Company, regardless of its form.
(e) Forfeiture of Benefits. Executive acknowledges that violation of any of
the prohibitions or covenants of this Section 8 may result in the forfeiture of
rights to benefits or compensation under one or more benefit or compensation
plans of the Company which contain such forfeiture provisions, and will result
in his obligation to pay liquidated damages as provided in Section 11.
9. Confidentiality. Executive agrees not to disclose or discuss, other than with
his legal counsel, personal tax or financial advisors, or spouse, either the
existence or any
-9-
CONFIDENTIAL
details of this Agreement. 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. This Agreement shall not prohibit the Executive from disclosing to
any person that he has agreed not to compete with the Company and that he has
legal duties not to disclose the Company's proprietary information. Executive is
hereby authorized to reveal to a prospective employer or prospective client or
business associate the precise terms of Sections 7, 8(a) and (b), 11(b) and 12
hereof, but in so doing, Executive shall not reveal any other parts of this
Agreement.
10. Duty to Disclose Acceptance of Offers of Employment by Other Employers.
Executive acknowledges that the Company has an ongoing interest in knowing
whether any of its employees or former employees who have, or had, access to
proprietary or confidential information intend to provide services as an
employee, consultant or in any other capacity to an entity which the Company
considers to be a competitor or potential competitor. Accordingly, during the
period of Executive's employment by the Company, Executive shall give written
notice to the Company of his intention to accept employment with any employer
other than the Company, not later than the date on which he gives his written or
oral acceptance of an offer of employment, or offer of compensation in exchange
for advice, information or consulting services. That notice shall state the name
of the offering entity, the role or position accepted and a brief summary of the
responsibilities, the geographic location and scope of that role or position.
11. The Company's Remedies for Breach of Agreement.
(a) Liquidated Damages Payable by Executive upon Resignation. Executive
recognizes that his services to the Company are of the highest value to the
Company, that his services cannot be easily replaced in the event he terminates
his employment prior to the end of the Term, and that the loss of Executive's
services would cause damages to the Company's operations which are substantial
but not readily calculable. Therefore, Executive warrants that if he terminates
his employment before expiration of the Term other than for Good Reason, he
shall pay the Company as liquidated damages an amount equal to 100% of the
Executive's pre-tax gain from the exercise of any long-term incentive grants
issued in 2000 to Executive by the Company. Such sum shall be payable in a
single lump amount which shall be immediately due and payable on demand
following the termination of Executive's employment. In addition, Executive's
right to exercise any long-term incentive grants issued in 2000 to Executive by
the Company which have not yet been exercised shall be extinguished as of the
last day of his active employment.
(b) Liquidated Damages for Breach of Covenants Under Sections 7 or 8.
Executive acknowledges that his breach any of his covenants under Sections 7 or
8 of this Agreement would cause substantial damages to the Company that are not
readily calculable. Accordingly, in the event of such a breach, Executive agrees
to pay to the Company as liquidated damages an amount equal to the sum of his
annualized base salary and short-term incentive target in effect at the time of
the breach. In addition, (i) as provided in Section 6(d), Executive's right to
any payments under Sections 6(b) or 6(c) which have not yet been made shall be
extinguished and no further such payments
-10-
CONFIDENTIAL
shall be due, (ii) he shall return to the Company all payments under Sections
6(b) or 6(c) which theretofore shall have been provided to him (except that
Executive shall retain $100 of such sum as consideration or the release executed
pursuant to Section 6(e)), (iii) all of his grants under any long-term incentive
plan which have not yet vested or which have vested but not yet been exercised
shall be extinguished immediately, and (iv) Executive shall owe to the Company
all pre-tax gain derived from the exercise of any long-term incentive grants
during the six months preceding the breach. Executive promptly shall pay to the
Company the sum of all amounts to be paid pursuant to this Section 11(b), in a
single lump amount which shall be due immediately and payable on demand
following the breach.
(c) Injunctive Relief. Executive acknowledges that if he breaches his
covenants under Sections 7 and 8 of this Agreement, competitors of the Company
will gain the value of the Executive's services to the detriment of the Company,
and that the Company thereby will suffer irreparable injury. In the event of a
breach of any of his covenants under Sections 7 or 8, whether or not Executive
is still employed by the Company at the time of such breach, to the extent
permitted by law Company shall be entitled, in addition to causing the Executive
to forfeit benefits as described in Sections 7(c) and 8(e), and in addition to
liquidated damages payable under Section 11(b) and any other remedies available
at law, to injunctive relief to restrain further breach of such commitments by
the Executive or by any person acting for or with him in any capacity
whatsoever.
12. Arbitration. In the event that (a) Executive believes that the Company has
breached any provision of this Agreement or otherwise has violated his rights in
connection with his employment by the Company, the manner in which he was
treated while so employed or the termination of his employment, or if he
believes that the Company violated his rights under any common law theory of
liability or any applicable federal, state or local law, statute, regulation or
ordinance (including without limitation 42 U.S.C. Section 1981, Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act and any other
state or federal statute that pertains to employee rights or discrimination in
employment), or (b) the Company believes that Executive has breached any
provision of this Agreement or otherwise has violated its rights in connection
with his employment by the Company, the dispute may be submitted to the American
Arbitration Association in New York or any other state mutually agreeable to all
parties, for arbitration pursuant to its rules and procedures for resolution of
employment disputes. The arbitrator shall not have the power to declare or treat
any provision of this Agreement as void or unenforceable. The arbitrator shall
include in the award the prevailing party's costs and expenses (including
reasonable attorneys' fees and expert witness fees) incurred in connection with
the proceedings. The decision of the arbitrator shall be final and binding.
Executive understands and agrees that this provision constitutes a waiver of his
right to initiate a proceeding before an administrative tribunal seeking relief
for himself and to ▇▇▇ in any court of law or equity, and that the sole forum
available to him for resolution of disputes between himself and the Company is
arbitration as provided herein. The parties intend that the arbitration
procedure to which they hereby agree shall be the exclusive means for resolving
all disputes between them, and their agreement in this regard shall be
interpreted as broadly and inclusively as reason permits to realize that intent;
provided, however, that
-11-
CONFIDENTIAL
nothing herein shall be considered a waiver of either party's right to seek a
temporary restraining order or injunction from a court for purposes of
preserving the status quo or preventing irreparable harm pending decision by an
arbitrator.
13. Miscellaneous Provisions.
(a) Assignment by the Company. The Company expressly reserves the right to
assign this Agreement. If and when the Executive transfers from the Company to
another employer pursuant to such assignment, this Agreement shall be deemed to
be assigned to the transferee employer in lieu of the Company. This Agreement
may not be assigned by the Executive.
(b) Waiver. The waiver by any Company of a breach by the Executive of any
provision of this Agreement shall not be construed as a waiver of any subsequent
breach by him.
(c) Executive's Warranty. Executive warrants and represents that his
acceptance of employment by the Company on the terms offered will not breach any
contractual or other obligation he has to any third party, and that he will
neither bring to the Company confidential or proprietary information or
documents of any third party (other than a third party contributing assets to
the Company), including any former employer, nor use or disclose any
confidential or proprietary information of any third party without such third
party's written authorization.
(d) Severability. If any clause, phrase or provision of this Agreement
(including, without limitation, Section 12), or the application thereof to any
person or circumstance, shall be deemed invalid or unenforceable by any court of
competent jurisdiction, such event shall not affect or render invalid or
unenforceable the remainder of this Agreement and shall not allocate the
application of any clause, phrase or provision hereof to other persons or
circumstances. Further, if an arbitrator or court of competent jurisdiction
determines that the geographic scope, duration or any other features of the
covenants and commitments set forth in Sections 7 and 8 are not enforceable as
drafted, this Agreement shall hereby be deemed to be amended automatically to
provide the maximum enforcement thereof permitted by law.
(e) Gender. All pronouns used in this Agreement are in the masculine gender
solely for purposes of grammatical convenience, and it is the parties' intent
that all pronouns used herein are intended to comprehend both genders as
warranted by context or by the gender of the Executive.
(f) Governing Law. The parties acknowledge that the services to be
performed by Executive pursuant to this Agreement will be rendered in a number
of different states, and that the Company has a special interest in having its
agreements with employees in different places construed according to the same
law because it conducts operations throughout the entire United States.
Accordingly, the parties have chosen the State where the Company's headquarters
are located as a reasonable jurisdiction for choice of law, and therefore agree
that this Agreement shall be construed and enforced in accordance with the laws
of the State of New York, without regard to choice of law principles.
-12-
CONFIDENTIAL
(g) Notices. Whenever this Agreement requires or permits notice to be given
to the Company, the notice should be given in writing to the Chief Executive
Officer of the Company, or to such other person as the Company may subsequently
identify in writing to Executive.
(h) Entire Agreement. Except for the terms and conditions of the
compensation and benefit plans applicable to Executive (as such plans may be
amended by the Company from time to time), this Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements, arrangements,
and communications, whether written or oral, pertaining to the subject matter
hereof, including without limitation any employment agreement previously entered
into between Executive and the Company. This Agreement shall not negate (i) any
retention agreement relating to the proposed merger between BAC and GTE; (ii)
any benefits previously earned or rights granted under any long-term inventive
plan; (iii) any other benefits maintained by any other entity that are not
duplicative in nature of any benefits provided under this Agreement; or (iv) any
obligations that the Executive may have under any non-compete, proprietary
information or intellectual property agreement with any entity that is
contributing assets to the Company or any affiliate of such entity. Any such
rights, benefits, or obligations shall be determined in accordance with the
terms of such agreements or plans. This Agreement shall not be modified or
amended except by written agreement of the Company, the Executive, and the
Company which then employs him.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby execute this Agreement.
Cellco Partnership
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ------------------------------
Date Chief Executive Officer
4/13/00 /s/ S. ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ---------------------------------
Date Executive
-13-