Exhibit 10.12(b)
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
PHANTOM STOCK ACCOUNT— ______ BONUS YEAR
THIS AGREEMENT, entered into this day of __________, 20___, by and between (hereinafter referred to as the “Executive”) and United States Cellular Corporation (hereinafter referred to as the “Company”), a Delaware corporation, located at 8410 West Bryn Mawr Avenue, Suite 700, Chicago, IL 60631-3486.
W I T N E S S E T H:
WHEREAS, the Executive is now and will in the future be rendering valuable services to the Company, and the Company desires to ensure the continued loyalty, service and counsel of the Executive; and
WHEREAS, the Executive desires to defer a portion of his or her annual bonus for services to be performed in calendar year _____ (the "Bonus Year") until separation from service, permanent disability, death, a specified date in [BONUS YEAR PLUS FOUR] or later or unforeseeable emergency.
NOW, THEREFORE, in consideration of the covenants and agreements herein set forth, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto covenant and agree as follows:
1.Deferred Compensation Account. The Company agrees to establish and maintain a book reserve (the “Deferred Compensation Account”) for the purpose of measuring the amount of deferred compensation payable to the Executive under this Agreement. Credits shall be made to the Deferred Compensation Account as follows:
(a)Annual Bonus Deferral. On each issuance of a check in full or partial payment of the Executive’s annual bonus, if any, for services to be performed in the Bonus Year, there shall be deducted an amount equivalent to the percent indicated of the gross bonus payment which will be credited to the Deferred Compensation Account as of the date on which such check is to be issued.
The bonus deferral selected in this paragraph 1(a) shall be irrevocable except in the event that, prior to the date that the bonus is to be paid, the Executive receives a withdrawal due to the Executive’s unforeseeable emergency (as defined in paragraph 3(g)) from a nonqualified deferred compensation arrangement maintained by the Company or any affiliate thereof. In such event, the bonus deferral shall be cancelled in its entirety.
Bonus % ______
(b)Company Match. As of each date on which an amount is credited to the Deferred Compensation Account pursuant to paragraph 1(a), there also shall be credited to the Deferred Compensation Account a Company Match amount equal to 33 1/3% of such amount credited to the Deferred Compensation Account.
(c)Deemed Investment of Deferred Compensation Account. An amount credited to the Deferred Compensation Account pursuant to paragraph 1(a) or 1(b) shall be deemed to be invested in whole and fractional shares of common stock of the Company at the closing sale price on the principal national stock exchange on which such stock is traded on the date as of which the amount is credited to the Deferred Compensation Account or, if there is no reported sale for such date, on the next preceding date for which a sale was reported.
2.Vesting of Deferred Compensation.
(a)Annual Bonus Deferral. The bonus deferral amount credited to the Deferred Compensation Account pursuant to paragraph 1(a) (as adjusted for deemed investment returns) shall be 100% vested at all times.
(b)Company Match. One-third of the Company Match amount credited to the Executive's Deferred Compensation Account pursuant to paragraph 1(b) (as adjusted for deemed investment returns) shall become vested on each of the first three annual anniversary dates of December 31, [BONUS YEAR], provided that the Executive remains continuously employed by the Company or an affiliate thereof until such date and the related amount credited to the Deferred Compensation Account pursuant to paragraph 1(a) has not been withdrawn or distributed before such date. Any Company Match amount (as adjusted for deemed investment returns) that is not vested as of the date that the related bonus amount credited to the Deferred Compensation Account is withdrawn or distributed shall be forfeited as of the date of such withdrawal or distribution. Notwithstanding the foregoing, the Company Match amount (as adjusted for deemed investment returns), to the extent not forfeited previously, shall become 100% vested upon (i) the Executive’s separation from service by reason of the Executive’s retirement or death or (ii) the Executive suffering a permanent disability prior to the Executive’s separation from service.
For all purposes of this Agreement, “separation from service” shall have the meaning set forth in the United States Cellular Corporation 2013 Long-Term Incentive Plan, as it may be amended from time to time (or any successor thereto) (the “LTIP”). “Retirement” shall mean the Executive’s separation from service on or after his or her Early or Normal Retirement Date (as defined in the Telephone and Data Systems, Inc. Pension Plan). “Permanent disability” shall mean (i) the Executive’s inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) the Executive’s receipt, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, of income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Executive’s employer.
(c)Competition, Misappropriation, Solicitation, Disparagement or Separation due to Negligence or Willful Misconduct. Notwithstanding the provisions of paragraph 2(b), if the Executive engages in (i) Competition, (ii) Misappropriation, (iii) Solicitation or (iv) Disparagement, or if the Executive separates from service on account of the Executive’s negligence or willful misconduct, in each case as determined by the Company in its sole discretion, then the Company Match amount credited to the Executive’s Deferred Compensation Account pursuant to paragraph 1(b) (as adjusted for deemed investment returns) immediately shall be forfeited, irrespective of whether such amount otherwise was considered vested.
For this purpose, “Competition” shall mean that the Executive, directly or indirectly, individually or in conjunction with any Person, during the Executive’s employment with the Company and its affiliates and for the twelve (12) months after the termination of that employment for any reason, other than on the Company’s or an affiliate’s behalf (i) has contact with any customer of the Company or any affiliate or with any prospective customer which has been contacted or solicited by or on behalf of the Company or any affiliate for the purpose of soliciting or selling to such customer or prospective customer the same or a similar (such that it could substitute for) product or service provided by the Company or an affiliate during the Executive’s employment with the Company and its affiliates or (ii) becomes employed in the business or engages in the business of providing wireless products or services in any county or county contiguous to a county in which the Company or an affiliate provided such products or services during the Executive’s employment with the Company and its affiliates or had plans to do so within the twelve (12) month period immediately following the Executive’s termination of employment.
For this purpose, “Misappropriation” shall mean that the Executive (i) uses confidential information (as defined below) for the benefit of anyone other than the Company or an affiliate, as the case may be, or discloses the confidential information to anyone not authorized by the Company or an affiliate, as the case may be, to receive such information, (ii) upon termination of employment, makes any summaries of, takes any notes with respect to or memorizes any confidential information or takes any confidential information or reproductions thereof from the facilities of the Company or an affiliate or (iii) upon termination of employment or upon the request of the Company or an affiliate, fails to return all confidential information then in the Executive’s possession. For the avoidance of doubt, “Misappropriation” does not include disclosure of Confidential Information to a governmental regulatory agency, such as the U.S. Securities and Exchange Commission, provided that the Executive informs the agency that the Company and its affiliates deem the information to be confidential. “Confidential Information” shall mean any confidential and proprietary drawings, reports, sales and training manuals, customer lists, computer programs and other material embodying trade secrets or confidential technical, business or financial information of the Company or an affiliate thereof.
For this purpose, “Solicitation” shall mean that the Executive, directly or indirectly, individually or in conjunction with any Person, during the Executive’s employment with the Company and its affiliates and for the twelve (12) months after the termination of that employment for any reason, other than on the Company’s or an affiliate’s behalf, solicits, induces or encourages (or attempts to solicit, induce or encourage) any individual away from the Company’s or an affiliate’s employ or from the faithful discharge of such individual’s contractual and fiduciary obligations to serve the Company’s and its affiliate’s interests with undivided loyalty.
For this purpose, “Disparagement” shall mean that the Executive has made a statement (whether oral, written, or electronic) to any Person other than to an officer of the Company or an affiliate that disparages or demeans the Company or an affiliate or any of their respective owners, directors, officers, employees, products or services. For the avoidance of doubt, “Disparagement” does not include making truthful statements to any governmental regulatory agency or to testimony in any legal proceeding.
3.Payment of Deferred Compensation.
(a)Medium of Payment. All payments of deferred compensation hereunder shall be made in whole shares of common stock of the Company and cash equal to the fair market value of any fractional share.
(b)Election of Payment Date. The Executive must elect in this paragraph 3(b) the date on which his or her vested Deferred Compensation Account for the Bonus Year (the “Distributable Balance”) becomes payable. The Executive may elect payment either upon his or her separation from service, or in January of a specified year in [BONUS YEAR PLUS FOUR] or later (a “Specified Date”) (choose one option); provided, however, if the Executive elects a Specified Date for payment and separates from service prior to such date, the Executive’s Distributable Balance shall be distributed (or commence to be distributed, in the case of installments) to the Executive upon such separation from service. The election under this paragraph 3(b) must be made at the time of execution of this Agreement, will apply to the entire Distributable Balance and is irrevocable.
Check one below:
| ☐ | Election to Receive upon Separation from Service | |||||||||||||
| ☐ | Election to Receive at a Specified Date | January of | ||||||||||||
| (must be [BONUS YEAR PLUS FOUR] or later) | ||||||||||||||
If the Executive fails to make a valid election regarding the date on which his or her Distributable Balance becomes payable, the Executive shall be deemed to have elected payment upon his or her separation from service.
(c)Election of Form of Payment. The Executive must elect in this paragraph 3(c) the form of payment for receiving his or her Distributable Balance. The Executive may elect payment either in a lump sum or in an indicated number of annual installments. The election under this paragraph 3(c) must be made at the time of execution of this Agreement, will apply to the entire Distributable Balance and is irrevocable.
Check one below:
| ☐ | Lump Sum Distribution | |||||||||||||
| ☐ | Annual Installments | (insert number of years up to a maximum of 5; to be paid annually in January) | ||||||||||||
If the Executive fails to make a valid election regarding the form of payment of his or her Distributable Balance, the Executive shall be deemed to have elected a lump sum distribution.
(d)Distribution Upon Permanent Disability. If the Executive becomes permanently disabled prior to the commencement of the payment of his or her Distributable Balance, the Executive’s Distributable Balance immediately shall become payable to the Executive (irrespective of the payment date elected by the Executive in paragraph 3(b)). Payment shall be made in a lump sum (irrespective of the form of payment elected by the Executive in paragraph 3(c)) at the time determined by the Company within sixty (60) days following the Executive’s disability. If the Executive is a specified employee who incurs a permanent disability after he or she has separated from service, payment of the Distributable Balance shall be subject to any delay required by paragraph 3(b).
(e)Distribution at Death. If the Executive dies prior to the total distribution of his or her Distributable Balance, the Executive’s unpaid Distributable Balance immediately shall become payable in full to the Executive’s Designated Beneficiary (as determined under paragraph 4) (irrespective of the payment date elected by the Executive in paragraph 3(b)). Payment shall be made in a lump sum (irrespective of the form of payment elected by the Executive in paragraph 3(c)) at the time determined by the Company within sixty (60) days following the Executive’s death.
(f)Timing of Distribution Upon Occurrence of Distribution Event. If the Executive elected distribution of his or her Distributable Balance in the form of a lump sum, the Distributable Balance shall be paid at the time determined by the Company within sixty (60) days after the occurrence of the event causing such balance to be payable (the payment date described in paragraph 3(b) or the Executive’s permanent disability, as applicable). If the Executive elected distribution of his or her Distributable Balance in the form of installments, the Distributable Balance shall be paid annually, commencing in January of the calendar year following the calendar year of the occurrence of the event causing such balance to be payable. Annual installments then will be paid in January of each succeeding calendar year until the entire Distributable Balance has been paid. For purposes of section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the entitlement to a series of installment payments under this Agreement shall be treated as the entitlement to a single payment as of the date the first installment is scheduled to be paid.
Notwithstanding the foregoing or any other provision within this Agreement, if the Executive is a specified employee (as determined under the Section 409A Specified Employee Policy of Telephone and Data Systems, Inc. and its Affiliates) as of the date of his or her separation from service and is entitled to payment hereunder by reason of such separation from service, no payment (including on account of the Executive’s permanent disability or unforeseeable emergency) shall be made from the Deferred Compensation Account before the date which is six (6) months after the date of the Executive’s separation from service (or, if earlier than the end of such six (6) month period, the date of the Executive’s death). Any payment delayed pursuant to the immediately preceding sentence shall be paid in a lump sum during the seventh (7th) calendar month following the calendar month during which the Executive separates from service.
(g)Withdrawals for an Unforeseeable Emergency. In the event that the Executive experiences an unforeseeable emergency and as a result thereof requests in writing payment of all or a portion of his or her Distributable Balance, the Long-Term Incentive Compensation Committee of the Company (the “Committee”) may direct such payment to the Executive. An unforeseeable emergency means a severe financial hardship to the Executive resulting from (i) an illness or accident of the Executive, the Executive’s spouse, the Executive’s Designated Beneficiary or the Executive’s dependent, (ii) the loss of the Executive’s property due to casualty or (iii) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Executive. The circumstances that will constitute an unforeseeable emergency will depend upon the facts of each case, but, in any case, payment may not exceed an amount reasonably necessary to satisfy such unforeseeable emergency plus amounts necessary to pay taxes and penalties reasonably anticipated as a result of such payment after taking into account the extent to which such unforeseeable emergency is or may be relieved (a) through reimbursement or compensation by insurance or otherwise, (b) by liquidation of the Executive’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship or (c) by cessation of deferrals hereunder or under any other nonqualified deferred compensation plan maintained by the Company or its affiliates. Examples of what may be considered to be unforeseeable emergencies include (i) the imminent foreclosure of or eviction from the Executive’s primary residence, (ii) the need to pay for medical expenses, including non-refundable deductibles and the cost of prescription drug medication and (iii) the need to pay for funeral expenses of the Executive’s spouse, Designated Beneficiary or dependent.
In the event that the Committee approves a withdrawal due to an unforeseeable emergency, such payment shall be made to the Executive in a lump sum as soon as practicable following such approval, but in no event later than sixty (60) days after the occurrence of the unforeseeable emergency. If the Executive is a specified employee and has separated from service, the Executive’s request for an unforeseeable emergency withdrawal shall be subject to any payment delay required by paragraph 3(b).
4.Designation of Beneficiaries.
(a)In General. The Executive may designate one or more beneficiaries to receive any amount payable pursuant to paragraph 3(e) (a “Designated Beneficiary”) by executing and filing with the Company during his or her lifetime, a beneficiary designation in the form attached hereto. The Executive may change or revoke any such designation by executing and filing with the Company during his or her lifetime a new beneficiary designation in such form as prescribed by the Company. If the Executive is married and names someone other than his or her spouse (e.g., a child) as a primary beneficiary, the designation is invalid unless the spouse consents by signing the designated area of the beneficiary designation form in the presence of a Notary Public.
(b)No Designated Beneficiary. If all Designated Beneficiaries predecease the Executive, or, in the case of corporations, partnerships, trusts or other entities which are Designated Beneficiaries, are terminated, dissolved, become insolvent or are adjudicated bankrupt prior to the date of the Executive’s death, or if the Executive fails to designate a beneficiary (including by failure to return such form to the appropriate Company representative during the Executive’s lifetime), then the following persons in the order set forth below shall be the Executive’s beneficiary or beneficiaries:
i)Executive’s spouse, if living; or if none
ii)Executive’s then living descendants, per stirpes; or if none
iii)Executive’s estate.
5.Miscellaneous.
(a)Clawback. To the maximum extent permitted under applicable law, the Executive’s Deferred Compensation Account and any shares of common stock of the Company distributed to the Executive or his/her Designated Beneficiary attributable to such account are subject to forfeiture, recovery by the Company or other action pursuant to any clawback or recoupment policy which the Company may adopt from time to time, including without limitation any such policy which the Company may be required to adopt under the Dodd-Frank Wall Street Reform and Consumer Protection Act and implementing rules and regulations thereunder, or as otherwise required by law.
(b)Assignment. Except as provided in paragraph 4, the right of the Executive or any other person to any payment of benefits under this Agreement may not be assigned, transferred, pledged or encumbered.
(c)Distributions to Minors and Incapacitated Individuals. If a payment hereunder is to be made to a minor or to an individual who, in the opinion of the Company, is unable to manage his or her affairs by reason of illness, accident or mental incompetency, such payment may be made to or for the benefit of such individual in such of the following ways as the legal representative of such individual shall direct: (i) directly to any such minor individual, if in the opinion of such legal representative, such individual is able to manage his or her affairs, (ii) to such legal representative, (iii) to a custodian under a Uniform Gifts to Minors Act for any such minor individual, or (iv) to some near relative of any such individual to be used for the latter’s benefit. The Company shall not be required to see to the application by any third party other than the legal representative of an individual of any payment made to or for the benefit of such individual pursuant to this paragraph. Any such payment shall be a complete discharge of the liability of the Company under this Agreement for such payment.
(d)Inability to Locate Executive or Designated Beneficiary. If, as of the Latest Payment Date, the Company is unable to make payment of all or a portion of the Executive’s Distributable Balance to the Executive or his or her Designated Beneficiary because the whereabouts of such person cannot be ascertained (notwithstanding the mailing of notice to any last known address or addresses and the exercise by the Company of other reasonable diligence), then the Executive’s Distributable Balance, or portion thereof, as applicable, shall be forfeited. For this purpose, the “Latest Payment Date” shall be the latest date on which the Executive’s Distributable Balance, or portion thereof, as applicable, may be paid to the Executive or the Executive’s Designated Beneficiary without the imposition of taxes and other penalties under section 409A of the Code.
(e)Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware (without giving effect to principles of conflicts of laws) to the extent that the latter are not preempted by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or other federal law.
(f)Source of Payment. Amounts payable under this Agreement shall be paid from the general funds of the Company, and the Executive shall be no more than an unsecured general creditor of the Company with no right to any specific assets of the Company (whose claim may be subordinated to those of other creditors of the Company). Nothing contained in this Agreement shall be deemed to create a trust of any kind for the benefit of the Executive, or create any fiduciary relationship between the Company and the Executive with respect to any assets of the Company.
(g)Withholding. Appropriate amounts shall be withheld from any payment made hereunder or from an Executive’s compensation as may be required for purposes of complying with Federal, state, local or other tax withholding requirements applicable to the benefits provided hereunder.
(h)Agreement Subject to LTIP. This Agreement is subject to the provisions of the LTIP, and shall be interpreted in accordance therewith. In the event of any inconsistency between the terms of this Agreement and the terms of the LTIP, the terms of the LTIP shall govern. This Agreement and the LTIP contain the entire understanding of the Company and the Executive with respect to the subject matter hereof.
(i)Claims Procedure. If the Executive or the Executive’s Designated Beneficiary believes he or she is entitled to benefits under this Agreement in an amount greater than those which he or she received, or will receive, the Executive or the Executive’s Designated Beneficiary (or his or her duly authorized representative) may file a claim with the Company in accordance with the Claims Procedure set forth in Section 6.2 of the United States Cellular Corporation 2021 Executive Deferred Compensation Interest Account Plan, as amended from time to time, with references to Plan Administrator and Top Human Resources Officer therein replaced with references to the Committee.
(j)Decisions of Committee. The Committee shall have the right to resolve all questions which may arise in connection with this Agreement. Any interpretation, determination or other action made or taken by the Committee regarding this Agreement or the LTIP shall be final, binding and conclusive. Amounts will be paid hereunder only if the Committee decides, in its sole discretion, that the Executive, Designated Beneficiary or other person is entitled to them.
(k)Severability. In the event any provision of this Agreement is held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included herein.
(l)Compliance with Section 409A of the Code. This Agreement is intended to comply with section 409A of the Code and the regulations promulgated thereunder and shall be interpreted and construed accordingly. The Executive and the Company agree that the Company shall have sole discretion and authority to amend this Agreement, unilaterally, at any time in the future to satisfy any requirements of section 409A of the Code. Notwithstanding the foregoing, under no circumstance shall the Company be responsible for any taxes, penalties, interest or other losses or expenses incurred by the Executive or any other person due to any failure to comply with section 409A of the Code.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| UNITED STATES CELLULAR CORPORATION | ||||||||
| By: | ||||||||
| Executive: | ||||||||
| Date: | ||||||||
| USCC Services, LLC | ||||||||
| By: | ||||||||
| Title: | ||||||||
| Date: | ||||||||