Exhibit 10w
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NON-COMPETE AND PROPRIETARY INFORMATION
AGREEMENT
THIS NON-COMPETE AND PROPRIETARY INFORMATION AGREEMENT, made this 9th day
of August, 1993, by and between Bell Atlantic Corporation ("BAC"), BELL ATLANTIC
NETWORK SERVICES, INC., a wholly-owned subsidiary of BAC (the "Company") and
Stuart C. Johnson (the "Executive").
WHEREAS, competitive initiatives are vital to the success of the business
of BAC and to the businesses of each majority-owned subsidiary of BAC (BAC and
such subsidiaries are collectively referred to herein as "Bell Atlantic
Companies"); and
WHEREAS, the Human Resources Committee of the Board of Directors of BAC
determined on June 21, 1993, that it is appropriate for the Chairman and Chief
and Executive Officer of BAC (the "Chairman") to enter into an acceptable form
of non-compete and proprietary information agreement with a number of Senior
Managers selected by the Chairman;
NOW, THEREFORE, for good and valuable consideration, including compensation
and benefits recited below and the promotion of the Executive, the Executive,
the Company and BAC hereby agree as follows:
1. Prohibition Against Competitive Activities:
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(a) Prohibited Conduct by the Executive: During the period of the
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Executive's employment with any Bell Atlantic Company, and for a period of two
years following the Executive's retirement or termination of employment for any
other reason from any and all Bell Atlantic Companies, the Executive, without
the prior written consent of the Chief Executive Officer of BAC, shall not
engage in any conduct described in clauses (i) through (iii) below within any
geographic area in which any Bell Atlantic Company is then engaged (or, at the
time of the Executive's termination of employment, had a board-approved business
plan under which it planned to engage) in "Competitive Activities" (as defined
in paragraph 1(b)):
(i) engage in, or work for, or own, manage, operate, control or
participate in the ownership, management, operation or control of, or
provide consulting
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or advisory services to, any individual, partnership, firm,
corporation or institution engaged in, Competitive Activities;
provided, however, that the Executive's purchase or holding, for
investment purposes, of any securities of a publicly traded company
shall not constitute "ownership" or "participation in ownership" for
purposes of this paragraph;
(ii) interfere with the relationship of any Bell Atlantic Company with any
of its employees, agents, representatives, suppliers or vendors under
contract, or joint venturers, where any such person or entity
cooperates with or supports a Bell Atlantic Company in its performance
of any Competitive Activities; or
(iii) directly or indirectly attempt to divert from any Bell Atlantic
Company any business in connection with Competitive Activities.
(b) Competitive Activities: For purposes of Section 1(a) hereof,
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"Competitive Activities" means business activities relating to products or
services of the same or similar type as those for which the Executive had
responsibility to plan, develop, manage or oversee within the last 24 months of
the Executive's employment with any Bell Atlantic Company.
(c) Notice. BAC shall send the Executive written notice in the event
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that BAC believes that the Executive has violated any of the prohibitions of
this Section 1; provided, however, that any failure by BAC 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 BAC giving notice and taking action to enforce
its rights under this Agreement at any later time.
(d) Forfeiture of Benefits. The Executive acknowledges that the
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Executive's violation of any of the prohibitions of this Section 1 or the rules
against wrongful competitive activity by the Executive as defined under the Bell
Atlantic Senior Management Retirement Income Plan (the "RIP") and the Bell
Atlantic Performance Share Plan (the "PSP"), as the terms of those plans may be
amended from time to time, may result in the Executive's forfeiture of any and
all rights to benefits or awards under the RIP and the PSP.
2. Prohibition Against Disclosure of Proprietary Information:
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(a) Prohibited Conduct by the Executive: The Executive acknowledges that,
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as one of the most senior officers of the Bell Atlantic Companies, the Executive
has continuing access to confidential and proprietary information of Bell
Atlantic Companies. The Executive 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
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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, and 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;
- 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 Executive
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retires or terminates employment for any other reason with all Bell Atlantic
Companies, the Executive 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 Section 2(a). The Executive 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 Executive acknowledges that the
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Executive's violation of the prohibitions of this Section 2 or the forfeiture
provisions applicable to misconduct by the Executive under the RIP and the PSP,
as the terms of those plans may
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be amended from time to time, may result in the Executive's forfeiture of any
and all rights to benefits or awards under the RIP and the PSP.
3. Remedies in Addition to Forfeiture of Benefits. The Executive
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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 Executive of any of the provisions of Section 1 or 2 of this
Agreement, and that the Executive's continued employment is predicated on the
commitments made by the Executive in those Sections. In the event of any breach
of any of the Executive's commitments under Section 1 or 2, any Bell Atlantic
Company that is damaged by such breach shall be entitled, in addition to
declaring a forfeiture of benefits as described herein, and in addition to any
other remedies and damages available, to injunctive relief to restrain the
violation of such commitments by the Executive or by any person or persons
acting for or with the Executive in any capacity whatsoever.
4. Misconduct. For purposes of this Agreement, the term "misconduct"
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shall mean a violation of law (other than a traffic violation or other minor
civil offense), or behavior that BAC concludes amounts to a material breach of
any company policy or any provision of the Employee Code of Business Conduct,
and including, by way of example: dishonesty; working outside the Bell Atlantic
Companies in competition with any Bell Atlantic Company; other conduct that
poses a material conflict of interest; revealing confidential or proprietary
information of any Bell Atlantic Company; or a substantial and deliberate abuse
of the voucher or expense reimbursement processes of any Bell Atlantic Company.
5. Certain Involuntary Terminations of Employment.
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(a) Consequences of Certain Involuntary Terminations. In the event that
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the employing Bell Atlantic Company involuntarily terminates the Executive's
employment for a reason other than misconduct, then BAC shall provide a cash
separation benefit to the Executive in an amount equal (before applicable
withholding taxes) to two times the sum of: (A) the Executive's annual rate of
base recurring salary at the time of termination of employment; and (B) the
Executive's most recent award of cash and deferred stock under the Senior
Management Short Term Incentive Plan. This cash separation benefit shall be
payable in monthly installments over a period of 24 months, subject to the
Executive's continuing compliance with the terms of this Agreement.
(b) A termination of employment will be treated as involuntary, even if
the termination is characterized for other purposes as voluntary, if, either:
(i) BAC acknowledges in a writing delivered to the Executive that the
termination is considered to be involuntary for purposes of this
Section; or
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(ii) the termination of employment is under duress. An otherwise
voluntary termination of employment will be considered involuntary,
and "under duress", for purposes of this Section 5 of this
Agreement, if, in the absence of misconduct on the part of the
Executive, and without the Executive's express written consent, any
of the following events has occurred within 12 months prior to the
Executive's termination of employment: (A) the Executive's status as
a "Senior Manager" has been revoked; (B) the Executive's base
recurring salary has been reduced by more than 10%; (C) the
Executive has suffered a negative individual performance adjustment
which causes the Executive's short term award under the STIP for a
particular year to be reduced by 25% or more; or (D) the Executive's
responsibilities have been substantially reduced in both type and
scope, other than in a general reorganization of the management
functions of one or more Bell Atlantic Companies, with the result
that the Executive has materially less status and authority.
6. Certain Voluntary Terminations of Employment.
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(a) Consequences of Certain Voluntary Terminations. In the event that the
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Executive voluntarily resigns or voluntarily retires, other than under
circumstances that are treated as involuntary for purposes of Section 5 hereof,
then the Chairman shall elect either:
(i) to pay the cash installments described in Section 5(a), or
(ii) to waive the obligation of the Executive to comply with the covenants
of Section 1 (but not Section 2) of this Agreement from and after the
date of termination; provided, however, that the parties acknowledge
that, in the event of any such waiver, the benefit-forfeiture
provisions of the RIP and the PSP shall nevertheless remain applicable
to the Executive, in accordance with the terms of those plans, as they
may be amended from time to time.
(b) Misconduct. The Executive shall have no rights under this Section 6
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if BAC determines that there was misconduct by the Executive at or about the
time of the Executive's voluntary resignation or retirement.
7. Miscellaneous Provisions.
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(a) Assignment by the Company: BAC may assign this Agreement without the
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Executive's consent to any company that acquires all or substantially all of the
assets of BAC, or into which or with which BAC is merged or consolidated. If
and when the Executive transfers to a Bell Atlantic Company other than the
current employing Bell
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Atlantic Company, this Agreement shall be deemed to be automatically assigned to
that company; provided, however, that, in the event of any such transfer, BAC
shall continue to be a party to this Agreement. This Agreement may not be
assigned by the Executive.
(b) Waiver: The waiver by any Bell Atlantic Company of a breach by the
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Executive of any provision of this Agreement shall not be construed as a waiver
of any subsequent breach by the Executive.
(c) Severability: If any clause, phrase or provision of this Agreement,
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or the application thereof to any person or circumstance, shall be invalid or
unenforceable under any applicable law, such event shall not affect or render
invalid or unenforceable the remainder of this Agreement and shall not affect
the application of any clause, phrase or provision hereof to other persons or
circumstances. Furthermore, in the event that a court of law or equity
determines that the geographic scope of the covenants under Section 1, or the
duration of any of the restrictions under this Agreement, are not enforceable,
this Agreement shall hereby be deemed to be amended to the extent necessary, but
only to the extent necessary, to permit the enforcement of the terms of this
Agreement.
(d) Governing Law: This Agreement shall be construed and enforced in
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accordance with the laws of the Commonwealth of Pennsylvania.
(e) Entire Agreement: Except for the terms and conditions of the
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compensation and benefit plans applicable to the Executive (as such plans may be
amended by the applicable Bell Atlantic Company from time to time), this
Agreement sets forth the entire understanding of BAC, the Company and the
Executive and supersedes all prior agreements, arrangements, and communications,
whether oral or written, pertaining to the subject matter hereof; and this
Agreement shall not be modified or amended except
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by written agreement of the Executive, BAC and the Bell Atlantic Company which
then employs the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
BELL ATLANTIC CORPORATION
By:______________________________________
Raymond W. Smith
Chairman of the Board and
Chief Executive Officer
THE EXECUTIVE
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Stuart C. Johnson
BELL ATLANTIC NETWORK SERVICES, INC.
By_______________________________________
Mark J. Mathis,
Vice President and General Counsel
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