Exhibit 10q
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made this 24th day of January, 1994, by and
between Bell Atlantic Corporation ("BAC") and William O. Albertini (the
"Executive").
WHEREAS, competitive initiatives are vital to the success of the business
of BAC and to each business entity, whether a corporation, partnership or other
type of entity, in which, from time to time, BAC owns directly or indirectly a
majority economic or voting interest (BAC and such majority-owned entities are
collectively referred to herein as "Bell Atlantic Companies"); and
WHEREAS, the Human Resources Committee (the "HRC") of the Board of
Directors of BAC determined on November 22, 1993, that it is appropriate for BAC
and other Bell Atlantic Companies to enter into agreements with certain officers
for the following purposes: (1) to assist in retaining the services of said
officers throughout a crucial period during which Bell Atlantic expects to
conclude a major corporate merger and otherwise accelerate the transformation of
its business; (2) to obtain protection for BAC and other affected Bell Atlantic
Companies in the form of non-compete and proprietary information covenants from
said officers;and (3) in consideration for said covenants, to provide for
severance benefits that any such officer may become eligible to receive under
certain circumstances; and
NOW, THEREFORE, for good and valuable consideration, including compensation
and benefits recited below, the Executive and BAC hereby agree as follows:
1. Term of this Agreement:
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This Agreement shall be effective on and after the date first stated above
and shall expire either on the second anniversary of the date of the first
closing of the transactions contemplated by a letter of intent dated October 12,
1993, among BAC, Tele-Communications, Inc. and Liberty Media, Inc., or on
December 31, 1995, in the absence of any such closing prior to that date;
provided, however, that in the event that the Executive's employment terminates
on or before said expiration date, this Agreement shall continue in force so
long as rights and obligations of the respective parties hereunder remain in
force by their terms.
2. Certain Involuntary Terminations of Employment.
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(a) Consequences of Certain Involuntary Terminations. In the event that
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the Bell Atlantic Company that then employs the Executive involuntarily
terminates the Executive's employment for a reason other than "misconduct" (as
defined in Section
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7), then BAC shall provide a cash separation benefit to the Executive in an
amount equal (before applicable withholding taxes) to three times the sum of:
(A) the Executive's annual rate of base recurring salary at the time of
termination of employment; and (B) the greater of (i) the value of the
Executive's most recent award of cash and deferred stock under the Senior
Management Short Term Incentive Plan (the "STIP"), or (ii) the value of the most
recent award of cash and deferred stock under the STIP for the Executive's
salary grade without taking into account any individual performance adjustments
to the award. This cash separation benefit shall be payable in one installment,
which shall be payable not later than 60 days after the termination of
employment date, subject to the Executive's continuing compliance with the terms
of this Agreement.
(b) For purposes of Section 2(a), 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
(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 2 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 type or 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.
3. 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 2 hereof,
then the Chairman shall elect either:
(i) to pay the cash separation benefit described in Section 2(a), and, in
that event, the payment by the Bell Atlantic Company of the amount
stated in Section 2(a) shall be the Executive's exclusive remedy for
any cause of action asserted by, or any damages alleged to be suffered
by, the
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Executive in connection with his employment with, or termination of
employment from, any Bell Atlantic Company;
(ii) to waive the obligation of the Executive to comply with the covenants
of Section 4 (but not Section 5) 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 Bell Atlantic Senior Management Retirement Income
Plan (the "RIP") and the Bell Atlantic Performance Share Plan (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 3
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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.
4. 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:
(i) personally engage in "Competitive Activities" (as defined in paragraph
4(b)) 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;
(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 4(a)(i); provided, however,
that the Executive'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 Executive's equity interest in any such
company is less than a controlling interest;
(iii) 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
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(iv) 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 4(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 4; 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 4 or the rules
against wrongful competitive activity by the Executive as defined under the RIP
and 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.
5. 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 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;
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- 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 5(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 5, or other
"misconduct" by the Executive (as that term is interpreted by the HRC under the
RIP and PSP plans, as 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.
6. 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 5 or 6 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 5 or 6, 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.
7. 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 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
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Bell Atlantic Company; or a substantial and deliberate abuse of the voucher or
expense reimbursement processes of any Bell Atlantic Company.
8. Miscellaneous Provisions.
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(a) Legal Release: Notwithstanding any other provision of this Agreement,
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no cash separation benefit under Section 2 or 3 hereof shall be payable unless
and until the Executive signs a legal release in a form satisfactory to BAC;
provided, however, that nothing in this Agreement is intended to cause the
Executive to waive his right to submit claims for employee benefits in
accordance with the terms of any employee benefit plans in which the Executive
remains a participant.
(b) 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 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.
(c) 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.
(d) 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 4, 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.
(e) Governing Law: This Agreement shall be construed and enforced in
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accordance with the laws of the Commonwealth of Pennsylvania.
(f) 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 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 by written agreement of the Executive, BAC and
the Bell Atlantic Company which then employs the Executive.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
BELL ATLANTIC CORPORATION
By:
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Raymond W. Smith
Chairman of the Board and
Chief Executive Officer
THE EXECUTIVE
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William O. Albertini
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