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10(b)
EMPLOYMENT AGREEMENT
THIS AGREEMENT by and between Bell Atlantic Corporation, a Delaware
corporation (the "Company"), and Ivan G. Seidenberg (the "Executive"), dated as
of the day of , 199 .
W I T N E S S E T H
WHEREAS, the Company and NYNEX Corporation, a Delaware corporation
("NYNEX"), have entered into an Amended and Restated Agreement and Plan of
Merger, dated as of July 2, 1996 (the "Merger Agreement"), whereby NYNEX will
merge with a wholly-owned subsidiary of the Company; and
WHEREAS, the Company and NYNEX wish to provide for the orderly
succession of the management of the Company following the Effective Time (as
defined in the Merger Agreement); and
WHEREAS, the Company and NYNEX further wish to provide for the
employment by the Company of the Executive, and the Executive wishes to serve
the Company, in the capacities and on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
1. EMPLOYMENT PERIOD. The Company shall employ the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for an initial period (the "Initial Period") and a further period
(the "Secondary Period") (the Initial Period and the Secondary Period are
hereinafter collectively referred to in the aggregate as the "Employment
Period"). The Initial Period shall begin at the Effective Time and end on (i)
the later of (a) one (1) year following the Effective Time, but no later than
December 31, 1998; or (b) July 1, 1998; or (ii) such earlier date as Raymond W.
Smith ceases to be Chief Executive Officer of the Company for any reason. The
Secondary Period shall begin at the end of the Initial Period and end on that
date which is four (4) years after the first day of the Initial Period.
2. POSITION AND DUTIES. (a) During the Initial Period, the Executive
shall serve as the sole Vice Chairman of the Company, and as President and Chief
Operating Officer of the Company; during the Secondary Period, the Executive
shall serve as the sole Vice Chairman of the Company, and as President and Chief
Executive Officer of the Company; and on and after any date during the
Employment Period as of which Raymond W. Smith ceases to be Chairman of the
Company, but in no event later than December 31, 1998, the Executive also shall
serve as the Chairman of the Company; in each case with such duties and
responsibilities as are customarily assigned to such positions, and such other
duties and responsibilities not inconsistent therewith as may from time to time
be assigned to him by the Board of Directors of the Company (the "Board"). The
Executive shall be a member of the Board on the first day of the Employment
Period, and the
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Board shall propose the Executive for re-election to the Board and for positions
specified above throughout the Employment Period.
(b) Until the Executive becomes Chairman, he shall report directly to
the Chairman and shall be the only officer reporting directly to the Chairman.
An Office of the Chairman comprised solely of the Chairman and the Executive
shall be established and the principal executive officers of the Company shall
report to that Office of the Chairman.
(c) During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive shall devote
reasonable attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive under this Agreement, use the
Executive's reasonable best efforts to carry out such responsibilities
faithfully and efficiently. It shall not be considered a violation of the
foregoing for the Executive to serve on corporate, industry, civic or charitable
boards or committees, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement.
(d) The Company's headquarters shall be located in New York City, and
the Executive shall reside in the general area of New York City.
3. COMPENSATION. (a) BASE SALARY. The Executive's compensation during
the Employment Period shall be determined by the Board upon the recommendation
of the committee of the Board having responsibility for approving the
compensation of senior executives (the "Compensation Committee"), subject to the
next sentence and Section 3(b). During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary") of not less than his
annual base salary from NYNEX as in effect immediately before the Effective
Time. The Annual Base Salary shall be payable in accordance with the Company's
regular payroll practice for its senior executives, as in effect from time to
time. During the Employment Period, the Annual Base Salary shall be reviewed for
possible increase at least annually. Any increase in the Annual Base Salary
shall not limit or reduce any other obligation of the Company under this
Agreement. The Annual Base Salary shall not be reduced after any such increase,
and the term "Annual Base Salary" shall thereafter refer to the Annual Base
Salary as so increased.
(b) INCENTIVE COMPENSATION. During the Employment Period, the Executive
shall participate in short-term incentive compensation plans and long-term
incentive compensation plans (the latter to consist of plans offering stock
options, restricted stock and/or other long-term incentive compensation, as
adopted and approved by the Compensation Committee from time to time) providing
him with the opportunity to earn, in the aggregate, on a year-by-year basis,
short-term and long-term incentive compensation (the "Incentive Compensation")
at least equal to the aggregate amounts that he had the opportunity to earn
under the ordinary annual grants under the comparable plans of NYNEX as in
effect immediately before the Effective Time.
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(c) OTHER BENEFITS. (i) During the Employment Period and thereafter:
(A) the Executive shall be entitled to participate in all applicable incentive,
savings and retirement plans, practices, policies and programs of the Company to
the same extent as other senior executives (or, where applicable, retired senior
executives) of the Company, and (B) the Executive and/or the Executive's
eligible dependents, as the case may be, shall be eligible for participation in,
and shall receive all benefits under, all applicable welfare benefit plans,
practices, policies, and programs provided by the Company, other than severance
plans, practices, policies and programs but including, without limitation,
medical, prescription, dental, disability, salary continuance, employee life
insurance, group life insurance, accidental death and travel accident insurance
plans and programs, and, upon retirement, all applicable retirement benefit
plans to the same extent, and subject to the same terms, conditions,
cost-sharing requirements and the like, as other senior executives of the
Company, as such plans may be amended from time to time.
(ii) During the Employment Period, the Executive shall participate in
one or more supplemental executive retirement plans as may be adopted and
amended by the Compensation Committee from time to time ("SERPS") such that the
aggregate value of the retirement benefits that he and his beneficiaries will
receive at the end of the Employment Period under all pension benefit plans of
the Company and its affiliates (whether qualified or not) will be not less than
the benefits he would have received had he continued, through the end of the
Employment Period, to participate in the NYNEX Management Pension Plan, NYNEX
Senior Management Non-Qualified Defined Contribution Pension Plan (Executive
Retirement Account Plan), NYNEX Senior Management Non-Qualified Supplemental
Savings Plan, (collectively, the "NYNEX Plans"), as in effect immediately before
the Effective Time.
(iii) During the Employment Period, the Company shall provide the
Executive with life insurance coverage (the "Life Insurance Coverage") issued by
Metropolitan Life Insurance Company (or a comparable insurance carrier)
providing a death benefit to such beneficiary or beneficiaries as the Executive
may designate of not less than five (5) times his Annual Base Salary which has a
cash value feature which accumulates over a fifteen (15) year period at the end
of which period the Company recovers the premiums which it has paid into any
policy or policies providing such Life Insurance Coverage.
(d) FRINGE BENEFITS. During the Employment Period, the Executive shall
be entitled to receive fringe benefits of comparable value as he received from
NYNEX immediately before the Effective Time.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. The Company shall be entitled to terminate the Executive's
employment because of the Executive's Disability during the Employment Period.
"Disability" means that (i) the Executive has been unable, for the period
specified in the Company's disability plan for senior executives, but not less
than a period of 180 consecutive business days, to perform the Executive's
duties under this Agreement, as a result of physical or mental illness or
injury, and (ii) a physician
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selected by the Company or its insurers, and acceptable to the Executive or the
Executive's legal representative, has determined that the Executive is disabled
within the meaning of the applicable disability plan for senior executives. A
termination of the Executive's employment by the Company for Disability shall be
communicated to the Executive by written notice, and shall be effective on the
30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), unless the Executive returns to full-time performance of the
Executive's duties before the Disability Effective Date.
(b) BY THE COMPANY. (i) The Company may terminate the Executive's
employment during the Employment Period for Cause or without Cause. "Cause"
means the conviction of the Executive for the commission of a felony, or willful
misconduct by the Executive, in either case that results in material and
demonstrable damage to the business or reputation of the Company. No act or
failure to act on the part of the Executive shall be considered "willful" unless
it is done, or omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in the best
interests of the Company. Any act or failure to act that is based upon authority
given pursuant to a resolution duly adopted by the Board, or the advice of
counsel for the Company, shall be conclusively presumed to be done, or omitted
to be done, by the Executive in good faith and in the best interests of the
Company.
(ii) A termination of the Executive's employment for Cause shall be effected
in accordance with the following procedures. The Company shall give the
Executive written notice ("Notice of Termination for Cause") of its intention to
terminate the Executive's employment for Cause, setting forth in reasonable
detail the specific conduct of the Executive that it considers to constitute
Cause and the specific provision(s) of this Agreement on which it relies, and
stating the date, time and place of the Special Board Meeting for Cause. The
"Special Board Meeting for Cause" means a meeting of the Board called and held
specifically for the purpose of considering the Executive's termination for
Cause, that takes place not less than ten and not more than twenty business days
after the Executive receives the Notice of Termination for Cause. The Executive
shall be given an opportunity, together with counsel, to be heard at the Special
Board Meeting for Cause. The Executive's termination for Cause shall be
effective when and if a resolution is duly adopted at the Special Board Meeting
for Cause by affirmative vote of (A) three-quarters of the entire membership of
the Board if such action is taken prior to January 1, 1999, or (B) a majority of
the entire membership of the Board if such action is taken on or after January
1, 1999, in either case stating that, in the good faith opinion of the Board,
the Executive is guilty of the conduct described in the Notice of Termination
for Cause and that such conduct constitutes Cause under this Agreement.
(iii) A termination of the Executive's employment without Cause shall be
effected in accordance with the following procedures. The Company shall give the
Executive written notice ("Notice of Termination without Cause") of its
intention to terminate the Executive's employment without Cause, stating the
date, time and place of the Special Board Meeting without Cause. The "Special
Board Meeting without Cause" means a meeting of the Board called and held
specifically for the purpose of considering the Executive's termination without
Cause, that takes place not less than ten
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and not more than twenty business days after the Executive receives the Notice
of Termination without Cause. The Executive shall be given an opportunity,
together with counsel, to be heard at the Special Board Meeting without Cause.
The Executive's termination without Cause shall be effective when and if a
resolution is duly adopted at the Special Board Meeting without Cause by
affirmative vote of (A) three-quarters of the entire membership of the Board if
such action is taken prior to January 1, 1999, or (B) a majority of the entire
membership of the Board if such action is taken on or after January 1, 1999, in
either case stating that the Executive is terminated without Cause.
(c) GOOD REASON. (i) The Executive may terminate employment for Good
Reason or without Good Reason. "Good Reason" means:
A. the failure of the Company to appoint the
Executive to the position of Chief Executive Officer of the
Company upon the expiration of the Initial Period or Chairman
on or before January 1, 1999, or in either case on any earlier
date as of which Raymond W. Smith ceases to serve in either
such capacity;
B. the assignment to the Executive of any duties or
responsibilities inconsistent in any respect with those
customarily associated with the positions to be held by the
Executive pursuant to this Agreement, or any other action by
the Company that results in a diminution in the Executive's
position, authority, duties or responsibilities, other than an
isolated, insubstantial and inadvertent action that is not
taken in bad faith and is remedied by the Company promptly
after receipt of notice thereof from the Executive;
C. any failure by the Company to comply with any
provision of Section 3 of this Agreement, other than an
isolated, insubstantial and inadvertent failure that is not
taken in bad faith and is remedied by the Company promptly
after receipt of notice thereof from the Executive;
D. any requirement by the Company that the
Executive's services be rendered primarily at a location or
locations other than that provided for in paragraph (d) of
Section 2 of this Agreement;
E. any purported termination of the Executive's
employment by the Company for a reason or in a manner not
expressly permitted by this Agreement;
F. any failure by the Company to comply with
paragraph (c) of Section 10 of this Agreement; or
G. any other material breach of this Agreement by the
Company that either is not taken in good faith or is not
remedied by the Company promptly after receipt of notice
thereof from the Executive.
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(ii) A termination of employment by the Executive for Good Reason shall be
effectuated by giving the Company written notice ("Notice of Termination for
Good Reason") of the termination, setting forth in reasonable detail the
specific conduct of the Company that constitutes Good Reason and the specific
provision(s) of this Agreement on which the Executive relies. A termination of
employment by the Executive for Good Reason shall be effective on the fifth
business day following the date when the Notice of Termination for Good Reason
is given, unless the notice sets forth a later date (which date shall in no
event be later than 30 days after the notice is given).
(iii) A termination of the Executive's employment by the Executive without
Good Reason shall be effected by giving the Company written notice of the
termination.
(d) NO WAIVER. The failure to set forth any fact or circumstance in a
Notice of Termination for Cause or a Notice of Termination for Good Reason shall
not constitute a waiver of the right to assert, and shall not preclude the party
giving notice from asserting, such fact or circumstance in an attempt to enforce
any right under or provision of this Agreement.
(e) DATE OF TERMINATION. The "Date of Termination" means the date of
the Executive's death, the Disability Effective Date, the date on which the
termination of the Executive's employment by the Company for Cause or without
Cause or by the Executive for Good Reason is effective, or the date on which the
Executive gives the Company notice of a termination of employment without Good
Reason, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) OTHER THAN FOR
CAUSE, DEATH OR DISABILITY, OR FOR GOOD REASON. If, during the Employment
Period, the Company terminates the Executive's employment for any reason other
than Cause, death or Disability, or the Executive terminates employment for Good
Reason, the Executive shall, upon termination of employment, cease active
participation, and commence participation as a retiree, in all retirement
benefit plans applicable to similarly situated senior executives, as such plans
may be amended from time to time. In such event, the Executive's benefits under
the SERPs, including any additional accrued benefit under any qualified defined
benefit plan which the Executive will have been precluded from receiving due to
the termination of his employment prior to the end of the Employment Period,
shall be calculated as though the Executive had remained employed with the
Company pursuant to the terms of this Agreement and had voluntarily retired at
the end of the Employment Period, but any cashout or annuity conversion of a
SERP benefit shall be based on the Executive's actual age at the time of
commencing the benefit. Moreover, in such event, subject to the terms and
conditions of this Agreement, the Company shall continue to provide the
Executive with the compensation and benefits set forth in paragraphs (a) and (b)
of Section 3 as if he had remained employed by the Company pursuant to this
Agreement through the end of the Employment Period and then retired; provided,
that the Incentive Compensation for such period shall be equal to the maximum
Incentive Compensation that the Executive would have been eligible to earn for
such period; provided, further that in lieu of any further grants of stock-based
Incentive Compensation in the form of options or otherwise, the Executive shall
be paid cash equal to the Black-Scholes value (without regard to any
restrictions) of
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the stock options, and the fair market value (without regard to any
restrictions) of any restricted stock and other stock-based awards that would
otherwise have been granted; and provided, further, that the Company shall pay
to the Executive a sum equal to the sum of: (a) the maximum value of any and all
company matching contributions or other company contributions which the
Executive could have received under any qualified or nonqualified defined
contribution retirement plan, and (b) the maximum value of the premiums to
purchase employee welfare benefits which the Executive would have received in
the form of Company-paid benefits (as measured by the Company's average plan
cost of providing such benefits to such a participant), which the Executive (and
any of his eligible beneficiaries) could have received had he remained employed
pursuant to this Agreement until the end of the Employment Period. In addition
to the foregoing, any restricted stock outstanding on the Date of Termination
shall be fully vested as of the Date of Termination and all options outstanding
on the Date of Termination shall be fully vested and exercisable and shall
remain in effect and exercisable for the maximum period of years allowable, from
the date of the Executive's actual retirement, under the terms of the Company's
stock option plan applicable to a senior executive who is eligible to retire.
The payments and benefits provided pursuant to this paragraph (a) of Section 5
are intended as liquidated damages for a termination of the Executive's
employment by the Company other than for Cause or Disability or for the actions
of the Company leading to a termination of the Executive's employment by the
Executive for Good Reason, and shall be the sole and exclusive remedy therefor.
Notwithstanding any other provisions of this Section, in the event that the
Executive, not later than the third anniversary of the Effective Time, resigns
for Good Reason within the meaning of Section 4(c)(A), upon failing to have been
appointed Chief Executive Officer of the Company upon the expiration of the
Initial Period or Chairman on or before January 1, 1999, or in either case upon
the earlier cessation of Raymond W. Smith to serve in either such capacity, the
liquidated damages otherwise payable under this Section shall be supplemented by
the amount by which the remuneration earned by the Chairman and Chief Executive
Officer of the Company from (i) the second anniversary of the Effective Time
(or, if earlier, the date on which a person other than the Executive was
appointed as successor to Raymond W. Smith as Chairman and Chief Executive
Officer), to (ii) the fourth anniversary of the Effective Time, exceeded the
remuneration which the Executive earned while in active service, or had a right
under this Agreement to earn subsequent to his Date of Termination, during that
period.
(b) DEATH AND DISABILITY. If the Executive's employment is terminated
by reason of the Executive's death or Disability during the Employment Period,
the Company shall pay to the Executive or, in the case of the Executive's death,
to the Executive's designated beneficiaries (or, if there is no such
beneficiary, to the Executive's estate or legal representative), in a lump sum
in cash within 30 days after the Date of Termination, the sum of the following
amounts (the "Accrued Obligations"): (1) any portion of the Executive's Annual
Base Salary through the Date of Termination that has not yet been paid; (2) an
amount representing any grants of Incentive Compensation, other than stock
options, which have not, prior to the date of Disability termination or death,
resulted in awards of cash or shares for the period that includes the Date of
Termination, computed by assuming that the amount of all such Incentive
Compensation would be equal to the maximum amount of such Incentive Compensation
that the Executive would have been eligible to earn for such period, and
multiplying that amount by a fraction, the numerator of which is the
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number of days in such period through the Date of Termination, and the
denominator of which is the total number of days in the relevant period; (3) any
compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon) that has not yet been paid; and (4) any accrued
but unpaid Incentive Compensation and vacation pay; and the Company shall have
no further obligations under this Agreement, except as specified in Section 6
below, and except as provided under the terms and conditions of any stock
options which are outstanding on such date of Disability termination or death.
(c) BY THE COMPANY FOR CAUSE; BY THE EXECUTIVE OTHER THAN FOR GOOD
REASON. If the Executive's employment is terminated by the Company for Cause or
the Executive voluntarily terminates employment, other than for Good Reason,
during the Employment Period, the Company shall pay to the Executive in a lump
sum in cash within 30 days of the Date of Termination, (1) any portion of the
Executive's Annual Base Salary through the Date of Termination that has not been
paid; (2) any compensation previously deferred by the Executive (together with
any accrued interest or earnings thereon) that has not yet been paid; and (3)
any accrued but unpaid Incentive Compensation and vacation pay; and the Company
shall have no further obligations under this Agreement, except as specified in
Section 6 below.
(d) The Company's obligation to deliver the liquidated damages payments
described in paragraph (a) of this Section 5 shall be contingent on the
Executive delivering to the Company, on or about the Date of Termination, a
legal release in a form acceptable to counsel to the Company, releasing the
Company, its affiliates, and the current and former directors, officers and
employees of the Company, subject to the Company's continuing obligations under
this Agreement, and subject to the Executive's continuing rights under the terms
and conditions of the compensation and benefit plans in which the Executive is a
participant, as such plans may be amended from time to time. Moreover, the
Company's obligation to pay any such liquidated damages shall cease in the event
that the Board determines that the Executive, subsequent to his Termination of
Employment, has either materially breached any covenant of this Agreement which
then remains in force, or violated the terms of any agreement prohibiting
competition by the Executive which may then be in force as applied to the
Executive.
(e) (i) In the event that any payment or benefit received or to be
received by the Executive pursuant to the terms of this agreement (the "Contract
Payments") or of any other plan, arrangement or agreement of the Company (or any
affiliate) ("Other Payments" and, together with the Contract Payments, the
"Payments") would be subject to the excise tax (the "Excise Tax") imposed by
Section 4999 of the Code as determined as provided below, the Company shall pay
to the Executive, at the time specified in Section 5(e)(ii) below, an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Executive, after deduction of the Excise Tax on Payments and any federal, state
and local income tax and the Excise Tax upon the Gross-Up Payment, and any
interest, penalties or additions to tax payable by the Executive with respect
thereto, shall be equal to the total present value (using the applicable federal
rate (as defined in Section 1274(d) of the Code in such calculation) of the
Payments at the time such Payments are to be made. For purposes of determining
whether any of the Payments will be subject to the Excise
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Tax and the amounts of such Excise Tax, (1) the total amount of the Payments
shall be treated as "parachute payments" within the meaning of section
280G(b)(2) of the Code, and all "excess parachute payments" within the meaning
of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax,
except to the extent that, in the opinion of independent counsel selected by the
Company and reasonably acceptable to the Executive ("Independent Counsel"), a
Payment (in whole or in part) does not constitute a "parachute payment" within
the meaning of section 280G(b)(2) of the Code, or such "excess parachute
payments" (in whole or in part) are not subject to the Excise Tax, (2) the
amount of the Payments that shall be treated as subject to the Excise Tax shall
be equal to the lesser of (A) the total amount of the Payments or (B) the amount
of "excess parachute payments" within the meaning of section 280G(b)(1) of the
Code (after applying clause (1) hereof), and (3) the value of any noncash
benefits or any deferred payment or benefit shall be determined by Independent
Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the
Code. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rates of federal income taxation applicable to the individuals in the calendar
year in which the Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rates of taxation applicable to individuals as are
in effect in the state and locality of the Executive's residence in the calendar
year in which the Gross-Up Payment is to be made, net of the maximum reduction
in federal income taxes that can be obtained from deduction of such state and
local taxes, taking into account any limitations applicable to individuals
subject to federal income tax at the highest marginal rates.
(ii) The Gross-Up Payments provided for in Section 5(e)(i) hereof shall
be made upon the earlier of (i) the payment to the Executive of any Payment or
(ii) the imposition upon the Executive or payment by the Executive of any Excise
Tax.
(iii) If it is established pursuant to a final determination of a court
or an Internal Revenue Service proceeding or the opinion of Independent Counsel
that the Excise Tax is less than the amount taken into account under Section
5(e)(i) hereof, the Executive shall repay to the Company within thirty (30) days
of the Executive's receipt of notice of such final determination or opinion the
portion of the Gross-Up Payment attributable to such reduction (plus the portion
of the Gross-Up Payment attributable to the Excise Tax and federal, state and
local income tax imposed on the Gross-Up Payment being repaid by the Executive
if such repayment results in a reduction in Excise Tax or a federal, state and
local income tax deduction) plus any interest received by the Executive on the
amount of such repayment. If it is established pursuant to a final determination
of a court or an Internal Revenue Service proceeding or the opinion of
Independent Counsel that the Excise Tax exceeds the amount taken into account
hereunder (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment in respect of such excess within thirty (30)
days of the Company's receipt of notice of such final determination or opinion.
(iv) In the event of any change in, or further interpretation of,
sections 280G or 4999 of the Code and the regulations promulgated thereunder,
the Executive shall be entitled, by written notice to the Company, to request an
opinion of Independent Counsel regarding the application of such
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change to any of the foregoing, and the Company shall use its best efforts to
cause such opinion to be rendered as promptly as practicable. All fees and
expenses of Independent Counsel incurred in connection with this agreement shall
be borne by the Company.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies for which the Executive may qualify, nor, subject to paragraph (f) of
Section 11, shall anything in this Agreement limit or otherwise affect such
rights as the Executive may have under any contract or agreement with the
Company or any of its affiliated companies. Vested benefits and other amounts
that the Executive is otherwise entitled to receive under the Incentive
Compensation, the SERPS, the Insurance Coverage, or any other plan, policy,
practice or program of, or any contract of agreement with, the Company or any of
its affiliated companies on or after the Date of Termination shall be payable in
accordance with the terms of each such plan, policy, practice, program, contract
or agreement, as the case may be, except as explicitly modified by this
Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in, and otherwise to perform its obligations under, this Agreement
shall not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action that the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and, except as
specifically provided in paragraph (a) of Section 5 with respect to benefits
described in clause (B) of paragraph (c)(i) of Section 3, such amounts shall not
be reduced, regardless of whether the Executive obtains other employment.
8. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies and
their respective businesses that the Executive obtains during the Executive's
employment by the Company or any of its affiliated companies and that is not
public knowledge (other than as a result of the Executive's violation of this
Section 8) ("Confidential Information"). The Executive shall not communicate,
divulge or disseminate Confidential Information at any time during or after the
Executive's employment with the Company, except with the prior written consent
of the Company or as otherwise required by law or legal process.
9. ATTORNEYS' FEES. The Company agrees to pay, as incurred, to the
fullest extent permitted by law, all legal fees and expenses that the Executive
may reasonably incur as a result of any contest (regardless of the outcome) by
the Company, the Executive or others of the validity or enforceability of or
liability under, or otherwise involving, any provision of this Agreement,
together with interest on any delayed payment at the applicable federal rate
provided for in Section 7872(f)(2)(A) of the Code.
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10. SUCCESSORS. (a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean both
the Company as defined above and any such successor that assumes and agrees to
perform this Agreement, by operation of law or otherwise.
11. MISCELLANEOUS. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified except by a written agreement executed
by the parties hereto or their respective successors and legal representatives.
(b) All notices and other communications under this Agreement shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
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If to the Company:
Bell Atlantic Corporation
1095 Avenue of the Americas
New York, NY 10036
Attention: General Counsel
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section 11. Notices and communications
shall be effective when actually received by the addressee.
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(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state, local
and foreign taxes that are required to be withheld by applicable laws or
regulations.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provisions of, or to assert, any right under, this Agreement
(including, without limitation, the right of the Executive to terminate
employment for Good Reason pursuant to paragraph (c) of Section 4 of this
Agreement) shall not be deemed to be a waiver of such provision or right or of
any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
supersedes any other agreement between them concerning the subject matter
hereof; provided, however, that the Company shall assume at the Effective Time
the Retention Agreement for the benefit of the Executive adopted by NYNEX in
February 1996, a copy of which is attached hereto as Exhibit "A". Nothing in
this Agreement is intended to nullify any other obligation of the Executive
under any agreement or benefit plan which prohibits the disclosure of
proprietary information or prohibits the Executive from engaging in competitive
activities against NYNEX or the Company.
(g) The Company shall cause to be maintained through January 1, 1999
Section 5.11 of the Bylaws of the Company which requires (among other things) a
three-quarters vote of the entire Board in order to amend or modify the terms of
this Agreement.
(h) The rights and benefits of the Executive under this Agreement may
not be anticipated, assigned, alienated or subject to attachment, garnishment,
levy, execution or other legal or equitable process except as required by law.
Any attempt by the Executive to anticipate, alienate, assign, sell, transfer,
pledge, encumber or charge the same shall be void. Payments hereunder shall not
be considered assets of the Executive in the event of insolvency or bankruptcy.
(i) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization of its Board, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
_________________________________________
Ivan G. Seidenberg
Bell Atlantic Corporation
By_______________________________________
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