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Exhibit 10(f)
STAY INCENTIVE AGREEMENT
THIS STAY INCENTIVE AGREEMENT is made this ______ day of __________, 1996,
by and among Bell Atlantic Corporation, its successors and assigns ("Bell
Atlantic"), and ________________________________, a Senior Manager and employee
of a Bell Atlantic Company (the "Key Employee"). In this Agreement, "Bell
Atlantic Company" means any or all of the following: Bell Atlantic, a corporate
subsidiary or other company affiliated with Bell Atlantic, or a company in which
Bell Atlantic directly or indirectly owns a substantial equity interest, their
successors and assigns, and, subsequent to any merger of Bell Atlantic with or
into any other entity, any company which is an affiliate of the successors and
assigns of Bell Atlantic subsequent to such merger.
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger, dated
April ___, 1996, between Bell Atlantic, NYNEX Corporation and Newco Corporation
(the "Definitive Agreement"), Bell Atlantic contemplates a merger of the Bell
Atlantic and NYNEX businesses on a date which is yet to be decided (the "Closing
Date"), and Bell Atlantic contemplates that the achieving of the closing of the
transactions contemplated by the Definitive Agreement (a "Closing"), and a
successful combination of the two businesses, will depend on achieving numerous
approvals by third parties, completing other conditions of closing, and
developing of business integration plans, in addition to the continuation of
efforts to manage and grow the existing lines of Bell Atlantic's business; and
WHEREAS, Bell Atlantic considers the Key Employee to be a Senior Manager
whose continuing services, leadership and support are and will be valuable,
especially during the period which, it is hoped, will culminate in a successful
Closing; and
WHEREAS, subject to the terms of this Agreement, Bell Atlantic wishes to
incent the Key Employee to remain an employee in good standing, especially
during the period from the date of this Agreement through the Closing Date; and
WHEREAS, Bell Atlantic and the Key Employee wish to set forth their
agreement as to the terms and conditions upon which the Key Employee's
employment will continue.
NOW, THEREFORE, for good and valuable consideration, the Key Employee and
Bell Atlantic hereby agree as follows:
1. STAY INCENTIVE.
(a) STAY BONUS AT CLOSING: Subject to the terms and conditions of this
Agreement:
(1) if there is a Closing of the transactions contemplated in the
Definitive Agreement, and
(2) if the Key Employee has remained an employee "in good standing"
(as hereinafter defined) of a Bell Atlantic Company, or of a succession of
two or more Bell Atlantic Companies, from the date of this Agreement to
the Closing Date;
then, not later than 30 calendar days following the Closing Date, Bell Atlantic
will cause the Bell Atlantic Company which then employs the Key Employee to pay
the Key Employee a special bonus consisting of a single cash payment (a "Stay
Bonus") in an amount equal (before withholding of taxes) to ________ percent of
the Key Employee's annual rate of base salary as of the Closing Date.
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(b) STAY BONUS IF MERGER PLAN IS TERMINATED: Subject to the terms and
conditions of this Agreement, if:
(1) the Definitive Agreement is terminated, thereby canceling the
plan of merger of the Bell Atlantic and NYNEX businesses, and
(2) the Key Employee has remained an employee "in good standing" (as
hereinafter defined) of a Bell Atlantic Company, or of a succession of two
or more Bell Atlantic Companies, from the date of this Agreement to the
date the Definitive Agreement is terminated;
then, not later than 30 calendar days following the date of termination of the
Definitive Agreement, Bell Atlantic will cause the Bell Atlantic Company which
then employs the Key Employee to pay the Key Employee a special bonus consisting
of a single cash payment in an amount equal (before withholding of taxes) to 25
percent of the amount described in Section 1(a) of this Agreement (substituting
the date of termination of the Definitive Agreement for the Closing Date, for
purposes of calculating the dollar amount in Section 1(a)).
(c) PAYMENT IN CASE OF DEATH: Subject to the terms and conditions of this
Agreement, in the event of the death of the Key Employee on any date after the
date of this Agreement on which the Key Employee was an employee "in good
standing" immediately prior to the death, and prior to Closing Date or the date
of any termination of the Definitive Agreement, Bell Atlantic shall cause the
Key Employee's last employing Bell Atlantic Company to pay the Key Employee's
estate a single cash payment which (before withholding taxes) shall be equal to
a fraction of the amount described in Section 1(a). The numerator of the
fraction shall be the number of days that have elapsed between the signing of
this Agreement and the Key Employee's date of death, and the denominator of the
fraction shall be the number of days that elapse between the signing of this
Agreement and the Closing Date. Such payment shall be made in accordance with
the timetable prescribed in Section 1(a), and substituting the date of death for
the date described in Section 1(a) for purposes of calculating the dollar amount
in Section 1(a). If the Definitive Agreement is terminated as provided in
Section 2(b) after the Key Employee's date of death, a payment shall be made to
the Key Employee's estate (in lieu of the payment described above) in an amount
equal (before withholding of taxes) to 25 percent of the amount described in
Section 1(a) of this Agreement and substituting the date of death for the date
described in Section 1(a) for purposes of calculating the dollar amount in
Section 1(a).
(d) DEFINITION OF EMPLOYMENT IN GOOD STANDING: For purposes of Section
1(a) through 1(c), the Key Employee will be considered to be "in good standing"
on a given date if, on that date, the Key Employee has not terminated employment
for any reason from the date of this Agreement to the given date, has not
tendered oral or written notice of intent to resign or retire effective as of a
date on or before the given date, and is not in receipt of notice from his or
her employing Bell Atlantic Company that the employer has determined that the
Key Employee's employment is to be terminated because the Key Employee has
committed a violation of law or a breach of the Employee Code of Conduct or
other written policy of the employing company which is of sufficient severity to
be cause for termination for misconduct.
2. TERMINATION WITHOUT CAUSE.
(a) PAYMENT IN LIEU OF STAY BONUS: Notwithstanding the provisions of this
Agreement which require a Key Employee to be an employee in good standing on any
applicable date stated in Section 1, in the event that the Key Employee's
employment is terminated by a Bell Atlantic Company without "cause" (as
hereinafter defined) prior to a date as of which, if the Key Employee had
remained an employee in good standing,
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a bonus under Section 1 of this Agreement would have become payable by virtue of
the actual occurrence of the Closing or the termination of the Definitive
Agreement or the death of the Key Employee, Bell Atlantic shall cause the Key
Employee's last employing Bell Atlantic Company to pay the Key Employee (or the
estate) a bonus equal in amount to the bonus which would otherwise have become
payable hereunder, not later than 30 days following the date on which such bonus
would have otherwise become payable under Section 1.
(b) BREACH OF NON-COMPETE OR PROPRIETARY INFORMATION OBLIGATIONS: No
payment shall be made under this Section 2 if Bell Atlantic determines that the
Key Employee, during or after his or her period of service with any Bell
Atlantic Company, has breached any obligation he or she may have under the terms
of any non-compete or proprietary information agreement which is applicable to
the Key Employee at the time of such a breach, or if there is evidence that the
Key Employee has revealed trade secrets of Bell Atlantic in violation of
applicable law. Under no circumstances will any payment be made under this
Section 2 in the absence of the occurrence of an event which would have
triggered a payment under Section 1 if the Key Employee were an employee in good
standing on the date of the triggering event.
(c) "CAUSE". For purposes of this Agreement, "cause" means:
(1) misconduct, consisting of a violation of law (other than a
traffic violation or other minor civil offense), or behavior that the Key
Employee's employing Bell Atlantic Company concludes amounts to a material
breach of any written company policy or any provision of the Employee Code
of Business Conduct (or any successor to such document), or
(2) conduct which the Key Employee's employing Bell Atlantic Company
determines constitutes a failure to meet the performance requirements of
the Key Employee's position.
3. MISCELLANEOUS PROVISIONS:
(a) KEY EMPLOYEE'S DUTY TO TREAT THIS AGREEMENT AS CONFIDENTIAL: Unless
and until the terms of this Agreement, and the amount of any payment eligible to
be paid or actually paid under this Agreement, are disclosed in writing to the
public by any Bell Atlantic Company pursuant to any applicable legal duty to
disclose such information, it shall be a condition of eligibility to receive any
payment hereunder that the Key Employee hold the terms of this Agreement and the
amount of any payment hereunder in strict confidence, except that the Key
Employee may disclose such details on a confidential basis to his or her spouse
(if any), and to any financial counselor, tax adviser or legal counsel retained
by the Key Employee. A breach by the Key Employee of his or her duty of
confidentiality under this paragraph shall constitute cause for Bell Atlantic to
terminate this Agreement.
(b) ASSIGNMENT BY BELL ATLANTIC: The obligations of Bell Atlantic
hereunder shall be the obligations of any and all successors and assigns of Bell
Atlantic. Bell Atlantic may assign this Agreement without the Key Employee's
consent to any company that acquires all or substantially all of the stock or
assets of Bell Atlantic, or into which or with which Bell Atlantic is merged or
consolidated. This Agreement may not be assigned by the Key Employee, and no
person other than the Key Employee (or the Key Employee's estate) may assert the
rights of the Key Employee under this Agreement.
(c) NOT A RESTRAINT ON THE BUSINESS DISCRETION OF BELL ATLANTIC: Nothing
in this Agreement is intended to limit the discretion of any Bell Atlantic
Company to take any action with regard to the proposed plan of merger which the
Company may consider appropriate, including, without limitation, postponing the
Closing
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Date or terminating the Definitive Agreement, if Bell Atlantic determines it
appropriate to do so. This Agreement is not a contract to retain the Key
Employee in the employ of any Bell Atlantic Company for any prescribed period or
term. The Key Employee acknowledges that this Agreement does not modify the
employment-at-will status of the Key Employee.
(d) STAY BONUS NOT APPLICABLE TO PENSION, SAVINGS PLAN OR OTHER BENEFIT
PLANS: Any bonus paid under this Agreement shall not be eligible to be
contributed to any qualified savings plan, and shall not be benefit-bearing
compensation for purposes of any group term life insurance plan or other
employee benefit plans. At the time of any award of a stay bonus under this
Agreement, such bonus may be deferred under any nonqualified deferred
compensation plan in which the Key Employee is then eligible to participate, but
only if and to the extent then permitted under the terms of any such
nonqualified deferred compensation plan.
(e) WAIVER: The waiver by Bell Atlantic of a breach by the Key Employee of
any provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
(f) GOVERNING LAW: This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Virginia.
(g) ENTIRE AGREEMENT: Except for the terms of any applicable non-compete
or proprietary information agreement, this Agreement sets forth the entire
understanding of Bell Atlantic and the Key Employee and supersedes all prior
agreements and communications, whether oral or written, pertaining to
eligibility for stay incentives of the type described herein. This Agreement
shall not be modified except by written agreement of the Key Employee and Bell
Atlantic.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
BELL ATLANTIC CORPORATION
By:______________________________________
Vice Chairman
THE KEY EMPLOYEE
_________________________________________
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SEPARATION AND NON-COMPETE AGREEMENT
THIS SEPARATION AND NON-COMPETE AGREEMENT is made this ______ day of
__________, 1996, by and between Bell Atlantic Corporation, its successors and
assigns ("Bell Atlantic"), and ________________________, a Senior Manager and
employee of a Bell Atlantic Company (the "Key Employee"). In this Agreement,
"Bell Atlantic Company" means any or all of the following: Bell Atlantic, a
corporate subsidiary or other company affiliated with Bell Atlantic, or a
company in which Bell Atlantic directly or indirectly owns a substantial equity
interest, their successors and assigns, and, subsequent to any merger of Bell
Atlantic with or into any other entity, any company which is an affiliate of the
successors and assigns of Bell Atlantic subsequent to such merger, or a company
in which any such successor or assignee owns a substantial equity interest.
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger, dated
April ___, 1996, between Bell Atlantic, NYNEX Corporation ("NYNEX") and Seaboard
Merger Company (the "Definitive Agreement"), Bell Atlantic contemplates a merger
of the Bell Atlantic and NYNEX businesses on a date which is yet to be decided
(the "Closing Date"), and Bell Atlantic contemplates that the achieving of the
closing of the transactions contemplated by the Definitive Agreement (a
"Closing"), and a successful combination of the two businesses, will depend on
achieving numerous approvals by third parties, completing other conditions of
closing, and developing of business integration plans, in addition to the
continuation of efforts to manage and grow the existing lines of Bell Atlantic's
business; and
WHEREAS, Bell Atlantic acknowledges that the period from the date of this
Agreement to a date not later than the second anniversary of the Closing Date is
likely to be a period of extraordinary transition, and that many valued
employees will experience greater than normal distractions from their job
responsibilities due to anxiety about the security of their position and the
risk or reorganizations or reductions in force in connection with the
anticipated merger of the Bell Atlantic and NYNEX businesses; and
WHEREAS, Bell Atlantic wishes to provide additional financial security to
the Key Employee in the form of eligibility for post-separation payments, which
the Key Employee would be eligible to receive in case of a termination of
employment without cause during the period this Agreement is in effect, so long
as the Key Employee elects to comply with the non-compete and proprietary
information covenants of this agreement subsequent to termination; and
WHEREAS, Bell Atlantic and the Key Employee wish to set forth the terms
and conditions applicable to such post-separation payments, and the accompanying
non-compete and other covenants of the Key Employee.
NOW, THEREFORE, for good and valuable consideration, the Key Employee and
Bell Atlantic hereby agree as follows:
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1. "TRANSITION PERIOD" DURING WHICH THIS AGREEMENT IS IN EFFECT: The terms
of this Agreement shall apply solely to a termination of employment of the Key
Employee where the effective date of the termination occurs during the
"Transition Period", which means a period beginning on the date of this
Agreement and ending on the second anniversary of the Closing Date; provided,
however, that, in the event that the Definitive Agreement is terminated (thereby
canceling the plan of merger of Bell Atlantic and NYNEX), the "Transition
Period" shall end on the date on which the termination of the Definitive
Agreement is effective. Under no circumstances will the Key Employee be eligible
to receive any remuneration under this Agreement as a result of any termination
of employment with an effective date later than the last day of the Transition
Period. The parties intend that the obligations of Bell Atlantic and the Bell
Atlantic Companies under this Agreement shall likewise become the obligations of
the successors and assigns of Bell Atlantic and the Bell Atlantic Companies
subsequent to the Closing.
2. POST-SEPARATION PAYMENTS.
(a) TWO TIMES PAY. Subject to the terms of this Agreement, in the event
that, during the Transition Period, the employment of the Key Employee is
terminated by the employing company without "cause" (as hereinafter defined),
Bell Atlantic shall cause the Key Employee's last employing Bell Atlantic
Company to pay post-separation payments to the Key Employee, in cash, in an
aggregate amount equal to two times "Pay" (as hereinafter defined), in exchange
for the continuing compliance of the Key Employee with the non-compete and other
covenants of this Agreement.
(b) "PAY". For purposes of the previous paragraph, "Pay" means the sum of
(i) an amount equal to the Key Employee's annual rate of base salary on the
effective date of the termination of employment, plus (ii) the gross amount of
the most recent short term incentive actually awarded to the Key Employee prior
to the Closing Date (taking into account any cash and stock portions of such
award, whether the award was paid or deferred); provided, however, that, "pay"
will not be less than the amount, determined under the same formula, as of the
day prior to the date on which oral or written notice of termination of
employment is first given by the applicable Bell Atlantic Company to the Key
Employee. In the event that the most recent short term award was prorated for a
portion of a year, the short term award shall be annualized.
(c) PAYMENT OF INSTALLMENTS. The post-separation benefit described in
Section 2(a) shall be payable in cash (less applicable withholding taxes) in a
series of 24 approximately equal monthly installments, with the first
installment occurring on or about the beginning of the calendar month first
following the calendar month containing the effective date of termination of
employment; provided, however, that installments hereunder will cease to be
payable, and no Bell Atlantic Company shall have any further obligation to pay
any post-separation payments to the Key Employee, on and after the date that
Bell Atlantic determines that the Key Employee has breached the non-compete
covenant or any other covenant under Sections 3 or 4 of this Agreement.
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(d) "CAUSE". For purposes of this Agreement, "cause" shall be defined as
follows.
(i) With respect to a termination of employment with an effective
date on or after the Closing Date, "cause" means misconduct, consisting of
a violation of law (other than a traffic violation or other minor civil
offense), or behavior that the Key Employee's employing company concludes
amounts to a material breach of any written company policy or any
provision of the Employee Code of Business Conduct (or any successor to
such document), or a material breach of any covenant of this Agreement.
(ii) With respect to a termination of employment with an effective
date prior to the Closing Date, "cause" means either misconduct of the
type described in the previous paragraph, or conduct which the Key
Employee's employing Bell Atlantic Company determines constitutes a
failure to meet the performance requirements of the Key Employee's
position.
(e) TERMINATION UPON REFUSAL OF DOWNGRADE. In the event that the Key
Employee is assigned, effective as of a date during the Transition Period and
after the Closing Date, to a position, which involves a "downgrade" (as
hereinafter defined), and if the Key Employee terminates employment as a direct
consequence of refusing the downgrade, the Key Employee shall be eligible to
receive post-separation payments on the same basis, subject to the same terms
and conditions, and in the same amount, as if the employment of the Key Employee
had been terminated without cause on the same date. For purposes of this
Agreement, "downgrade" means an assignment to a position where the sum of the
annual rate of base salary plus the maximum amount of annual short term
incentive award the Key Employee would be eligible to receive per year in the
new position is less than 90% of the sum of the corresponding items of salary
and maximum annual short term incentive opportunity for the Key Employee's
existing position.
(f) TERMINATION UPON REFUSAL OF RELOCATION. In the event that the Key
Employee is assigned, effective as of a date during the Transition Period and
after the Closing Date, to a position, which involves a "relocation" (as
hereinafter defined), and if the Key Employee terminates employment as a direct
consequence of refusing relocation, the Key Employee shall be eligible to
receive post-separation payments equal to one times Pay, payable in 12
approximately equal monthly installments, subject to the Key Employee's
continued compliance with the covenants and other terms and conditions of this
Agreement. For purposes of this Agreement, a "relocation" means an assignment to
a position with a principal place of work which would require a commute,
measured from the existing residence from which the Key Employee normally
commutes to work, which is more than 35 miles greater than the Key Employee's
existing commute from such residence.
(g) DEATH. A Key Employee shall not be entitled to post-separation
payments under this Agreement as a consequence of death during active
employment. In case of the death of the Key Employee subsequent to terminating
employment, and at a time when the Key Employee has received some, but not all,
installments of post-separation payments which he or she continues to
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be eligible to receive, if the death occurs at a time when the Key Employee was
continuing to comply with the applicable covenants of this Agreement, then the
balance of the post-separation payments which then remain unpaid shall be paid
in a single sum to the estate of the Key Employee.
(h) LEGAL RELEASE. Notwithstanding any provision of this Agreement, no
post-separation payments shall be payable under the terms of this Agreement
unless and until the Key Employee signs a comprehensive legal release in a form
satisfactory to Bell Atlantic, substantially as stated in Exhibit A; provided,
however, that nothing in this Agreement is intended to cause the Key Employee to
waive his or her right to submit claims for employee benefits in accordance with
the terms of any employee benefit plans in which the Key Employee remains a
participant. The Key Employee shall have the right to review the release for at
least 21 days, and will have a right to seek legal advice. Post-separation
payments shall not commence until at least the eighth day following the date the
Key Employee executes the release, and only if the Key Employee does not revoke
the signature of the release during that period.
3. PROHIBITION AGAINST COMPETITIVE ACTIVITIES:
(a) PROHIBITED CONDUCT BY THE KEY EMPLOYEE: During the period of the Key
Employee's employment with any Bell Atlantic Company (both before and after the
Closing Date), and for a period of 24 months following the Key Employee's
termination of employment under circumstances which cause the Key Employee to be
eligible to receive post-separation payments under the terms of this Agreement,
the Key Employee, without the prior written consent of the Vice President -
Human Resources of Bell Atlantic (or the designee of that officer), shall not:
(i) personally engage in "Competitive Activities" (as defined in
paragraph (b)) within any geographic area in which any Bell Atlantic
Company is then engaged (or, at the time of the Key Employee's termination
of employment, had a board-approved business plan under which it planned
to engage) in such Competitive Activities;
(ii) work for, own, manage, operate, control or participate in the
ownership, management, operation or control of, or provide consulting or
advisory services to, any individual, partnership, firm, corporation or
institution engaged in Competitive Activities within any geographic area
described in Section (a)(i); provided, however, that the Key Employee's
purchase or holding, for investment purposes, of securities of a
publicly-traded company shall not constitute "ownership" or "participation
in ownership" for purposes of this paragraph so long as the Key Employee's
equity interest in any such company is less than a controlling interest;
(iii) directly or indirectly attempt to divert from any Bell
Atlantic Company any business in connection with Competitive Activities.
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(b) COMPETITIVE ACTIVITIES: For purposes of Section (a) hereof,
"Competitive Activities" means business activities relating to products or
services of the same or similar type as those for which the Key Employee had
responsibility to plan, develop, manage or oversee within the last 24 months of
the Key Employee's employment with any Bell Atlantic Company.
(c) NO SOLICITATION OF BELL ATLANTIC EMPLOYEES. During the period of the
Key Employee's employment with any Bell Atlantic Company (both before and after
the Closing Date), and for a period of 24 months following the Key Employee's
termination of employment under circumstances which cause the Key Employee to be
eligible to receive post-separation payments under the terms of this Agreement,
the Key Employee shall not interfere with the relationship of any Bell Atlantic
Company with any of its employees, agents, representatives, suppliers or vendors
under contract, or joint venturers. During said 24-month post-separation period,
the Key Employee will not solicit any employee of any Bell Atlantic Company to
accept employment with, or provide services to, any person or entity which is
not a Bell Atlantic Company.
(d) NOTICE. Bell Atlantic shall send the Key Employee written notice in
the event that Bell Atlantic believes that the Key Employee has violated any of
the prohibitions of this Section ; provided, however, that any failure by Bell
Atlantic to give notice under this provision or to enforce its rights under this
Agreement in any one or more instances shall not be a bar to Bell Atlantic
giving notice and taking action to enforce its rights under this Agreement at
any later time. For a period of 15 days after the giving of such notice, the Key
Employee shall have the opportunity to respond and discuss with Bell Atlantic
the underlying facts and the basis for Bell Atlantic's belief that the Key
Employee is in breach of this Section . During such 15-day period, Bell Atlantic
shall not pursue any remedy provided by this Agreement or at law or in equity.
(e) FORFEITURE OF BENEFITS. The Key Employee acknowledges that his or her
violation of any of the prohibitions of Section 3, either during a period of
employment with a Bell Atlantic Company, or during the 24 months following
termination of employment under circumstances which do not result in the Key
Employee's eligibility to receive post-separation payments under this Agreement
(for example, under circumstances such as voluntary resignation, voluntary
retirement, or termination for misconduct as described in Section 2(d)(1)), may
result in the Key Employee's forfeiture of any and all rights to benefits under
the nonqualified pension plan in which the Key Employee participates, or the
forfeiture of rights to payments or benefits under any other compensation or
benefit plan which may contain similar prohibitions or conditions on benefits.
(f) WAIVER: Nothing in this Agreement shall bar the Key Employee from
requesting, at the time of the Key Employee's retirement or at any time
thereafter, that the officer named in Section 3(a) waive Bell Atlantic's rights
to enforce the non-compete covenants of this Section , and said officer shall
have the power to agree to such a waiver if said officer determines that it is
not inconsistent with the interests of Bell Atlantic to do so.
4. PROHIBITION AGAINST DISCLOSURE OF PROPRIETARY INFORMATION:
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(a) PROHIBITED CONDUCT BY THE KEY EMPLOYEE. The Key Employee acknowledges
that, as one of the most senior officers of the Bell Atlantic Companies, the Key
Employee has continuing access to confidential and proprietary information of
Bell Atlantic Companies. The Key Employee shall, therefore, at all times during
the period of active employment with any Bell Atlantic Company, and for a period
of three years thereafter, preserve the confidentiality of all proprietary
information of any Bell Atlantic Company. The three-year limitation under this
paragraph shall not in any way limit any Bell Atlantic Company's common law and
statutory rights to protect its trade secrets or intellectual property rights at
any time, to the full extent of the law. "Proprietary information" includes, but
is not limited to, information in the possession or control of a Bell Atlantic
Company that has not been fully disclosed in a writing which has been generally
circulated to the public at large, and which gives the Bell Atlantic Company an
opportunity to obtain or maintain advantages over its current and potential
competitors, such as strategic or tactical business plans, undisclosed financial
data; ideas, processes, methods, techniques, systems, patented or copyrighted
information, models, devices, programs, computer software or related
information; documents relating to regulatory matters and correspondence with
governmental entities; undisclosed information concerning any past, pending or
threatened legal dispute, pricing and cost data; reports and analyses of
business prospects; business transactions which are contemplated or planned;
research data; personnel information and data; identities of users and
purchasers of any Bell Atlantic Company's products or services; and other
confidential matters pertaining to or known by one or more Bell Atlantic
Companies, including confidential information of a third party which a Bell
Atlantic Company is bound to protect.
(b) OBLIGATION TO RETURN COMPANY PROPERTY. If and when the Key Employee
terminates employment for any reason with all Bell Atlantic Companies, the Key
Employee shall, prior to the last day of active employment and without charge to
any Bell Atlantic Company, return to the employing Bell Atlantic Company (or the
rightful Bell Atlantic Company) all company property, including, without
limitation, originals and copies of records, papers, programs, computer
software, documents and other materials which contain Proprietary Information,
as defined in the previous paragraph. The Key Employee shall thereafter
cooperate with each applicable Bell Atlantic Company in executing and delivering
documents requested by the company that are necessary to assist the Bell
Atlantic Company in patenting or registering any programs, ideas, inventions,
discoveries, copyright material or trademarks, and to vest title thereto in the
Bell Atlantic Company.
(c) FORFEITURE OF BENEFITS. The Key Employee acknowledges that a violation
of the prohibitions of this Section 4 may result in the Key Employee's
forfeiture of any and all rights to benefits or awards under the nonqualified
pension plan in which he or she participates, and any other benefit or
compensation plan containing similar prohibitions and requirements.
(d) REMEDIES IN ADDITION TO FORFEITURE OF BENEFITS. The Key Employee
recognizes that irreparable injury will result to one or more Bell Atlantic
Companies, and to the business and property of any of them, in the event of a
breach by the Key Employee of any of the provisions of this Section 4. In the
event of any breach of any of the Key Employee's covenants under this
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Section 4, any Bell Atlantic Company that is damaged by such breach shall be
entitled, in addition to curtailing the payment of any post-separation payments
hereunder, and in addition to any other remedies and damages which may be
available at law, to injunctive relief to restrain the violation of such
covenants by the Key Employee or by any person or persons acting for or with the
Key Employee in any capacity whatsoever.
5. CERTAIN LIMITATIONS UPON PAYMENTS.
(a) TAX CODE LIMITATIONS. Anything in this Agreement to the contrary
notwithstanding, in the event that it shall be determined that any payment or
distribution by Bell Atlantic to or for the benefit of the Key Employee, whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would constitute an "excess parachute
payment" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), the aggregate present value of amounts payable or
distributable to or for the benefit of the Key Employee pursuant to this
Agreement (such payments or distributions pursuant to this Agreement are
hereinafter referred to as "Agreement Payments") shall be reduced (but not below
zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed
in present value which maximizes the aggregate present value of Agreement
Payments without causing any Payment to be subject to taxation under Section
4999 of the Code. For purposes of this Section , present value shall be
determined in accordance with Section 280G(d)(4) of the Code.
(b) CALCULATIONS BY INDEPENDENT ACCOUNTANTS. All determinations to be made
under this Section shall be made by Bell Atlantic's independent public
accountant (the "Accounting Firm") immediately if the Key Employee separates
from service under circumstances which make the Key Employee eligible to receive
post-separation payments under this Agreement. The Accounting Firm shall provide
its determinations and any supporting calculations both to Bell Atlantic and the
Key Employee within 10 days of the effective date of termination of employment.
Any such determination by the Accounting Firm shall be binding upon Bell
Atlantic and the Key Employee. Within five days after this determination, Bell
Atlantic shall commence to pay (or cause payments to commence to be paid) to or
for the benefit of the Key Employee such amounts (if any) as are then due to the
Key Employee under this Agreement.
(c) OVERPAYMENTS AND UNDERPAYMENTS. As a result of the uncertainty in the
application of Section 280G of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Agreement Payments will
either have been made by Bell Atlantic which should not have been made
("Overpayment"), or that additional Agreement Payments which have not been made
by Bell Atlantic could have been made ("Underpayment"), in each case, consistent
with the calculations required to be made hereunder. Within two years after the
effective date of termination of employment, the Accounting Firm shall review
the determination made by it pursuant to the preceding paragraph. In the event
that the Accounting Firm determines that an Overpayment has been made, any such
Overpayment shall be treated for all purposes as a loan to the Key Employee
which the Key Employee shall repay to Bell Atlantic
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together with interest at the applicable Federal rate provided for in Section
7872(f)(2) of the Code (the "Federal Rate"); provided,however, that no amount
shall be payable by the Key Employee to Bell Atlantic if and to the extent such
payment would not reduce the amount which is subject to taxation under Section
4999 of the Code. In the event that the Accounting Firm determines that an
Underpayment has occurred,any such Underpayment shall be promptly paid by the
appropriate Bell Atlantic Company to or for the benefit of the Key Employee
together with interest at the Federal Rate.
(d) All of the fees and expenses of the Accounting Firm in performing the
determinations referred to in subsections (b) and (c) above shall be borne
solely by Bell Atlantic.
6. MISCELLANEOUS PROVISIONS:
(a) KEY EMPLOYEE'S DUTY TO TREAT THIS AGREEMENT AS CONFIDENTIAL: Unless
and until the terms of this Agreement, and the amount of any payment eligible to
be paid or actually paid under this Agreement, are disclosed in writing to the
public by any Bell Atlantic Company pursuant to any applicable legal duty to
disclose such information, it shall be a condition of eligibility to receive any
payment hereunder that the Key Employee hold the terms of this Agreement and the
amount of any payment hereunder in strict confidence, except that the Key
Employee may disclose such details on a confidential basis to his or her spouse
(if any), and to any financial counseler, tax adviser or legal counsel retained
by the Key Employee. A breach by the Key Employee of his or her duty of
confidentiality under this paragraph shall constitute cause for Bell Atlantic to
terminate this Agreement.
(b) ASSIGNMENT BY BELL ATLANTIC: The obligations of Bell Atlantic
hereunder shall be the obligations of any and all successors and assigns of Bell
Atlantic. Bell Atlantic may assign this Agreement without the Key Employee's
consent to any company that acquires all or substantially all of the stock or
assets of Bell Atlantic, or into which or with which Bell Atlantic is merged or
consolidated. This Agreement may not be assigned by the Key Employee, and no
person other than the Key Employee (or the Key Employee's estate) may assert the
rights of the Key Employee under this Agreement.
(c) NOT A RESTRAINT ON THE BUSINESS DISCRETION OF BELL ATLANTIC: This
Agreement is not a contract to retain the Key Employee in the employ of any Bell
Atlantic Company for any prescribed period or term. The Key Employee
acknowledges that this Agreement does not modify the employment-at-will status
of the Key Employee.
(d) POST-SEPARATION PAYMENTS NOT APPLICABLE TO PENSION, SAVINGS PLAN OR
OTHER BENEFIT PLANS: Any amount paid under this Agreement shall not be eligibile
to be contributed to any qualified savings plan, and shall not be
benefit-bearing compensation for purposes of any group term life insurance plan,
pension plan, or other employee benefit plans. Nothing in this Agreement is
intended to supersede or modify any rights which the Key Employee may have under
any other compensation or benefit plan in which the Key Employee participates.
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(e) WAIVER: The waiver by Bell Atlantic of a breach by the Key Employee of
any provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
(f) GOVERNING LAW: This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Virginia.
(g) ENTIRE AGREEMENT: Except for the terms of other compensation and
benefit plans in which the Key Employee participates, this Agreement sets forth
the entire understanding of Bell Atlantic and the Key Employee and supersedes
all prior agreements and communications, whether oral or written, pertaining to
eligibility for post-separation payments in exchange for compliance with
covenants such as those in Sections 3 and 4 hereof. This Agreement shall not be
modified except by written agreement of the Key Employee and Bell Atlantic.
During the Transition Period, the terms of Sections 3 and 4 of this Agreement
shall supersede the terms of any Non-Compete and Proprietary Information
Agreement to which the Key Employee and any Bell Atlantic Company are parties;
provided, however, that, if the Key Employee remains employed by a Bell Atlantic
Company subsequent to the termination of this Agreement at the end of the
Transition Period (or any extension of such Transition Period which may later be
agreed by amendment of this Agreement), any such prior Non-Compete and
Proprietary Information Agreement shall again be enforceable to the full extent
of its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
BELL ATLANTIC CORPORATION
By:______________________________________
Vice Chairman
THE KEY EMPLOYEE
_________________________________________
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EXHIBIT A
RELEASE
THIS RELEASE (the "Release") is entered into by [NAME] (the "Key
Employee"), for the benefit of ________________________________________ (the
"Company"), and for the benefit of all companies affiliated with the Company
(collectively, "Bell Atlantic Companies"), and the officers, directors and
employees of each of them.
WHEREAS, the Key Employee has separated from service with the Company on
_____________, 1996 (the "Separation Date") pursuant to the terms of a
Separation and Non-Compete Agreement, dated _______________, 1996, between Bell
Atlantic Corporation and the Key Employee (the "Agreement"), and he wishes to
execute this Release as contemplated under the terms of the Agreement.
NOW, THEREFORE, the Key Employee affirms as follows:
1. The Key Employee, as his free and voluntary act, hereby releases and
discharges the Company, its affiliates, and their successors and assigns, and
the directors, officers, employees, and agents of each of them, of and from any
and all debts, obligations, claims, demands, judgments or causes of action of
any kind whatsoever, known or unknown, in tort, contract, by statute or on any
other basis, for equitable relief, compensatory, punitive or other damages,
expenses (including attorneys' fees), reimbursements or costs of any kind,
including but not limited to, any and all claims, demands, rights and/or causes
of action, including those which might arise out of allegations relating to a
claimed breach of an alleged oral or written employment contract, or relating to
purported employment discrimination or civil rights violations, such as, but not
limited to, those arising under Title VII of the Civil Rights Act of 1964 (42
U.S.C. Section 2000e et seq.) as amended by the Civil Rights Act of 1991, the
Civil Rights Acts of 1866 and 1871 (42 U.S.C. Sections 1981 and 1983), Key
Employee Order 11246, as amended, the Age Discrimination in Employment Act of
1967, as amended (29 U.S.C. Section 621 et seq.), the Equal Pay Act of 1963 (29
U.S.C. Section 206(d)(1)), the Rehabilitation Act of 1973 (29 U.S.C. Sections
701-794), the Americans with Disabilities Act, or any other applicable federal,
state or local employment discrimination statute or ordinance, which the Key
Employee might have or assert against any of said entities or persons (a) by
reason of the Key Employee's active employment by the Company or any affiliated
company, or the termination of said employment and all circumstances related
thereto; or (b) by reason of any other matter, cause or thing whatsoever which
may have occurred prior to the date of execution of this Release. Moreover, the
Key Employee waives any and all rights under the Employee Retirement Income
Security Act of 1974 (ERISA) to assert any claim to any severance benefits, or
other remuneration on account of separation from service, other than as stated
in the Agreement.
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2. The Key Employee hereby reaffirms the terms and conditions of the
Agreement in all respects.
3. Should any provision of this Release be declared or be determined by
any court to be illegal or invalid, the validity of the remaining parts, terms
or provisions shall not be affected thereby, and said illegal or invalid part,
term or provision shall be deemed not to be a part of this Release.
STATEMENT BY THE KEY EMPLOYEE WHO IS SIGNING BELOW: THE COMPANY HAS
ADVISED ME IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS
RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS
RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY (OVER A PERIOD OF
SUBSTANTIALLY MORE THAN 21 DAYS) TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND
LEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY
BOUND BY ITS TERMS. I UNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7)
DAYS FOLLOWING MY SIGNING, AND THIS RELEASE WILL NOT BECOME ENFORCEABLE OR
EFFECTIVE UNTIL THAT SEVEN-DAY PERIOD HAS EXPIRED.
THE UNDERSIGNED, intending to be legally bound, has executed this Release
as of the _____ day of __________, 199__, that being the Key Employee's
Separation Date.
THE KEY EMPLOYEE
Signed: ______________________________
THIS IS A RELEASE
READ CAREFULLY BEFORE SIGNING
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