Exhibit 10(b)(2)
RETIREMENT AGREEMENT
This Retirement Agreement, dated as of
December 27, 1995 ("Agreement"), is made among ALLTEL CORPORATION, a Delaware
corporation (as defined below, the "Corporation"), ALLTEL INFORMATION
SERVICES, INC., a Delaware corporation and a subsidiary of the Corporation
("AIS"), ALLTEL FINANCIAL INFORMATION SERVICES, INC., an Arkansas corporation
and a wholly-owned subsidiary of AIS (the "Subsidiary"), and XXXX X. XXXXXX
(the "Executive").
The Executive is a party to the Executive
Compensation Agreement (as defined in paragraph (H) of Section 1) under which
the Executive would be permitted to retire on or after May 6, 1999. During
recent months, however, the Executive has expressed to the Corporation his
desire to retire in 1996, rather than in 1999. This Agreement specifies the
terms and conditions governing the Executive's early retirement and the
related agreements of the parties with respect thereto.
Accordingly, in consideration of the mutual
covenants contained herein, the Corporation, AIS and the Subsidiary, and the
Executive agree as follows:
1. DEFINED TERMS. For purposes of this
Agreement, the following terms shall have the meanings indicated below:
(A) "ALLTEL Profit-Sharing Plan" means the
ALLTEL Corporation Profit-Sharing Plan, as amended.
(B) "ALLTEL Thrift Plan" means the ALLTEL
Corporation Thrift Plan, as amended.
(C) "Benefit Restoration Plan" means the
ALLTEL Corporation Benefit Restoration Plan, as amended.
(D) "Board" or "Board of Directors" means the
Board of Directors of the Corporation.
(E) "Corporation" means ALLTEL Corporation and
any successor to its business or assets by operation of law or otherwise.
(F) "Deferred Compensation Plan" means the
ALLTEL Corporation Executive Deferred Compensation Plan, as amended.
(G) "Employee Stock Purchase Plan" means the
Stock Purchase Plan for Employees of Systematics Information Services, Inc.
and its affiliates, as amended.
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(H) "Executive Compensation Agreement" means
the Executive Compensation Agreement between the Subsidiary and the
Executive, dated as of April 17, 1990.
(I) "Indemnity Agreement" means the ALLTEL
Corporation Directors and Officers Indemnity Agreement, dated May 31, 1990,
between the Corporation and the Executive.
(J) "Long-Term Plan" means the ALLTEL
Corporation Long-Term Performance Incentive Plan, as amended.
(K) "Releasee" or "Releasees" has the meaning
specified in subparagraph (i) of paragraph (F) of Section 4 herein.
(L) "Short-Term Plan" means the ALLTEL
Corporation Performance Incentive Compensation Plan, as amended.
2. RETIREMENT OF EXECUTIVE.
(A) Retirement. The Executive retires from
employment with the Corporation and any subsidiary of the Corporation (as an
employee and as an officer) and resigns as a director of any subsidiary of
the Corporation of which he is a director, in each case effective on the
earliest of (i) the close of business on May 31, 1996, (ii) the death of the
Executive, and (iii) any date to which the Corporation and the Executive
agree in a writing that refers to this paragraph (A) (the "Effective Date").
The Executive acknowledges and agrees that he shall not be eligible to
receive any payments or benefits under any severance plan, program, or policy
of the Corporation or any subsidiary of the Corporation. The Corporation
agrees to continue the Executive's employment until the Effective Date
(notwithstanding any intervening physical or mental disability of the
Executive) at the Executive's compensation in effect on the date of this
Agreement, to continue to reimburse the Executive, until the Effective Date,
for the Executive's current monthly country club membership at the Country
Club of Little Rock and customary out-of-pocket expenses reasonably incurred
by the Executive in performing his duties, and to provide the Executive,
until the Effective Date, with the employee benefits and arrangements to
which the Executive is entitled on the date of this Agreement. The
Corporation's obligations under the immediately preceding sentence
automatically shall terminate on the Effective Date, and the Executive
thereafter shall have no rights and be entitled to no benefits under the
Executive Compensation Agreement or otherwise of any type or description
other than the rights and benefits specified in this Agreement. During the
period following the date of this Agreement and until the Effective Date, the
Executive will continue to serve under the direction of the Chief Executive
Officer of the Corporation as Chairman and Chief Executive Officer of AIS,
until a successor is appointed as Chief Executive Officer of AIS at any time
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prior to the Effective Date, in which case the Executive thereupon will cease
to have the title Chairman and Chief Executive Officer of AIS (although the
Executive's status as an employee will continue until the Effective Date).
(B) Certain Insurance Benefits and
Arrangements.
(i) The Corporation agrees to maintain until
the Effective Date, the long-term disability insurance coverage referred to
in Section III of the Executive Compensation Agreement.
(ii) The Executive shall be entitled to
participate, until the Effective Date, in the Corporation's group life,
travel, and accident insurance plans.
(iii) The Corporation agrees to maintain, until
the later of the Effective Date or the expiration of any renewal period (not
exceeding one year) that begins after the date of this Agreement and prior to
the Effective Date, the decreasing term life insurance policy referred to in
Section III of the Executive Compensation Agreement.
(iv) In the event the Effective Date occurs by
reason of the death of the Executive, the Corporation agrees to pay to his
wife, Xxxxx X. Xxxxxx, if she survives him (in addition to the payments
specified in paragraph (A) of Section 3), or otherwise to his estate, 100% of
the Executive's salary for the period of twelve months immediately preceding
the month in which his death occurs, which shall be made in 12 consecutive
monthly installments beginning no later than 30 days after the date of the
Executive's death.
(C) Corporate Board Membership. The Executive
and the Corporation agree that the Executive's membership on the Board of
Directors shall end on April 25, 1996, at the end of the Executive's current
term thereof, unless terminated sooner by the Executive's resignation or
death. The Executive shall be entitled to attend any meeting of the Board of
Directors occurring after the date of this Agreement through and including
the date his membership terminates in accordance with the immediately
preceding sentence, and to receive any materials provided to directors for
any such meeting.
3. CERTAIN COVENANTS OF THE CORPORATION AND
RELATED PROVISIONS.
(A) Joint and Spouse Survivor Retirement
Payments. Subject to the provisions of this Agreement, including, without
limitation, paragraph (C) of Section 4, the Corporation agrees to pay to the
Executive, following the Effective Date (unless occasioned by the Executive's
death) and until the Executive's death (notwithstanding any intervening
physical or mental disability of the Executive), bi-weekly retirement
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payments (calculated on the basis of 26 payments per year), each in the
amount of $3,709.37, and continuing during the Executive's lifetime, the last
bi-weekly payment being for the bi-weekly period during which the Executive's
death occurs. In the event the Executive is survived by his wife, Xxxxx X.
Xxxxxx, the Corporation shall pay to her, for the remainder of her lifetime,
bi-weekly payments, each in the amount of $1,854.68, following the Effective
Date (if occasioned by the Executive's death) or otherwise commencing on the
bi-weekly payment date immediately following the last bi-weekly payment date
for which the Executive received a payment in accordance with the immediately
preceding sentence and continuing during her lifetime, the last payment being
for the bi-weekly period during which her death occurs. The Corporation and
the Executive agree (and the Executive acknowledges) that the retirement
payments to be made by the Corporation in accordance with this paragraph (A)
shall be in lieu of any payments or benefits under any pension plan of the
Corporation or any subsidiary or affiliate of the Corporation, including, but
not limited to, the ALLTEL Corporation Pension Plan (as in effect from time
to time) (hereinafter, a "Company Pension Plan"), that the Executive has not
been, is not, and shall not be a participant in any Company Pension Plan, and
that neither the Executive, his spouse, nor any other person or entity,
claiming through the Executive has, has had, or shall have any right to any
benefit or payment from any Company Pension Plan. The Executive's right to
bi-weekly payments, and, in the event the Executive is survived by his wife,
Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx'x right to bi-weekly payments, under this
paragraph (A), and any associated property right or interest, is a personal
and individual right or interest. The Executive also acknowledges and agrees
that the Corporation would have no contractual or legal obligation
whatsoever, whether under the Executive Compensation Agreement or otherwise,
to pay the retirement payments specified in this paragraph (A) in the absence
of this Agreement and that the foregoing payments are consideration for
Executive's agreements specified in paragraph (C) of Section 4 and the
performance by the Executive of his obligations thereunder.
(B) Health and Dental Coverage. Subject to the
provisions of this Agreement, including, without limitation, paragraph (C) of
Section 4, the Corporation agrees to provide to the Executive and to the
Executive's spouse, during the Executive's lifetime, health and dental
coverage not less favorable than the health and dental coverage(s) provided
by the Corporation and its subsidiaries, from time to time, to similarly
situated active senior executives of the Corporation and of its subsidiaries,
as applicable, and at a cost to the Executive no greater than such similarly
situated active senior executives. However, in the event the Executive, at
any time prior to May 6, 1999, commences full-time employment with any other
company or enterprise (which shall not include a bona fide consulting or
other third party contractor relationship), the Executive shall be obligated
to pay the entire cost of the foregoing health and dental coverage for so
long as the Executive is employed on a full-time basis by any such other
company or enterprise at any time or from time to time, but, upon the
Executive's termination of full-time employment with any such other company
or enterprise, the Executive's rights under the first sentence of this
paragraph (B) shall be reinstated. In the event the Executive's wife, Xxxxx
X. Xxxxxx, survives the Executive, the Corporation shall provide to Xxxxx X.
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Xxxxxx, for the remainder of her lifetime, the coverage specified in the
first sentence of this paragraph (B), without regard to the second sentence
of this paragraph (B). Notwithstanding the foregoing provisions of this
paragraph (B), the Corporation may provide all or any portion of the
foregoing health and dental coverage(s) through the purchase by the
Corporation of insurance, and the Corporation may coordinate against any
government-provided (or similar) coverage with the other coverage as primary.
(C) Incentive Plans.
(i) The Executive acknowledges that he has no
right or entitlement of any type or description under the Short-Term Plan
with respect to any year other than 1995 and, if the Effective Date occurs
after December 31, 1995, the portion of 1996, beginning on January 1, 1996
and ending on the Effective Date (other than the right to awards with respect
to any such other year that were deferred and remain unpaid, to which
paragraph (G) of this Section 3 shall apply).
(ii) The Executive acknowledges that he has no
right or entitlement of any type or description under the Long-Term Plan with
respect to any period other than, if the Effective Date occurs on or after
December 31, 1995, 1993 through 1995 (other than the right to awards with
respect to any such other year that were deferred and remain unpaid, to which
paragraph (G) of this Section 3 shall apply).
(iii) Any awards to which the Executive is
entitled under the Short-Term Plan, the Long-Term Plan, or both, shall be
paid to the Executive at the time awards are paid to the Corporation's
officers, in accordance with the terms of those plans.
(D) Profit-Sharing and Thrift Plans.
(i) The Executive's vested interest under the
ALLTEL Profit-Sharing Plan shall be paid following the Effective Date in
accordance with the terms of that plan and at such time or times as may be
required thereunder.
(ii) The Executive's vested interest under the
ALLTEL Thrift Plan shall be paid following the Effective Date in accordance
with the terms of that plan and at such time or times as may be required
thereunder.
(E) Benefit Restoration Plan. The Executive's
vested interest under the Benefit Restoration Plan shall be paid following
the Effective Date in accordance with the terms of that plan and at such time
or times as may be required thereunder.
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(F) Stock Options; Employee Stock Purchase Plan.
(i) Notwithstanding any provision of the
applicable stock option plan or option agreement to the contrary, the
Executive's vested interest in the options to purchase common stock of the
Corporation held by the Executive on the date of this Agreement and that
remain unvested as of the Effective Date shall be 100 percent.
(ii) Subject to the foregoing provisions of this
paragraph (F), all matters pertaining to the foregoing options shall be
governed by the applicable stock option plan and option agreement.
(iii) All shares of common stock of the
Corporation and cash in the Executive's account under the Employee Stock
Purchase Plan shall be delivered to the Executive following the Effective
Date in accordance with the terms and at such time or times as may be
required thereunder.
(G) Deferrals Under Deferred Compensation Plan.
The Executive's vested interest under the Deferred Compensation Plan, the
Short-Term Plan, and the Long-Term Plan shall be paid in accordance with the
terms of and at such time or times as may be provided under the terms thereof.
(H) Rabbi Trust. As of the date of this
Agreement, the Executive is a beneficiary under the trust established by a
Trust Agreement between the Corporation and Nationsbank Texas, N.A., dated
July 20, 1993 (the "Rabbi Trust"), with respect to the Executive's rights and
benefits under the Executive Compensation Agreement, the Benefit Restoration
Plan and the Deferred Compensation Plan, and the Corporation has made certain
contributions for the Executive's account thereunder the balance of which
totaled approximately $60,000 as of the date of this Agreement. The
Corporation agrees that, subject to and in reliance upon the acknowledgments
by the Executive in the immediately following sentence, the Corporation will,
for so long as the Corporation continues to maintain the Rabbi Trust with
executive officers of the Corporation as beneficiaries, maintain the
Executive as a beneficiary thereunder with respect to the Executive's rights
and benefits referred to above and the Executive's rights and benefits under
this Agreement (in substitution for the Executive Compensation Agreement),
will maintain balances in the Executive's account under the Rabbi Trust from
time to time consistent with the manner in which the Corporation maintains
balances in the accounts of the executive officers of the Corporation, and
will provide the Executive, upon his request, with reasonable documentation
verifying that the Corporation is in compliance with the provisions of this
paragraph (H). The Executive acknowledges that the Rabbi Trust is a revocable
trust under which a beneficiary is entitled to exercise no rights prior to a
"change of control" (as defined thereunder), that no beneficiary has any
"vested" right or entitlement thereunder of any type or description prior to
such a "change of control" and that, in the event the Corporation, prior to
such a change of control, amends or terminates the Rabbi Trust (which the
Corporation has the unqualified right to do in its sole discretion) or its
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application to the executive officers of the Corporation, the Corporation's
agreements in the immediately preceding sentence automatically shall
terminate.
(I) Disclosure By the Corporation. The
Corporation shall have the right to disclose this Agreement and the terms
hereof in the Corporation's proxy statement with respect to its 1996 annual
meeting of stockholders and in the Corporation's Form 10-K Report for its
fiscal year ended December 31, 1995, and otherwise to the extent the
Corporation determines that disclosure is either required by applicable law
or regulation or is in the Corporation's best interest. To the extent
reasonably practicable, the Corporation shall afford the Executive a
reasonable opportunity to review and comment upon any such disclosure prior
to the making thereof. With respect to any other announcement or publicity
related to the Executive's retirement, the Executive and the Corporation
intend to announce that the Executive will retire in May 1996 and is making
the announcement at this time to provide management continuity during the
period required to name a successor. The Executive and the Corporation agree
to collaborate on the form and content of such other announcement or
publicity and to make no such announcement or publication unless the form and
content are acceptable to both the Corporation and the Executive.
4. CERTAIN OTHER AGREEMENTS.
(A) Return of Property. On the Effective Date,
the Executive shall deliver to the Corporation all of the Corporation's and
its subsidiaries' property in the Executive's possession, custody or control,
including, without limitation, all keys and credit cards, and all files,
documents, data and information in any medium relating in any way to the
Corporation and its subsidiaries' or its or their employees, suppliers,
customers or business. On the Effective Date, the Corporation shall deliver
all of the Executive's personal property in the Corporation's or any of its
subsidiaries' possession, custody or control.
(B) Non-Disclosure. The Executive acknowledges
that, in the course of his employment with the Corporation or any of its
subsidiaries, he has had access to confidential information or trade secrets
that are proprietary to the Corporation and its subsidiaries, including,
without limitation, information relating to the Corporation's and its
subsidiaries' suppliers and customers, the sources, costs and prices of the
Corporation's and its subsidiaries' products and services, the names,
addresses, contact persons, purchasing and sales histories, and preference of
the Corporation's and its subsidiaries' suppliers and customers, the
Corporation's and its subsidiaries' business plans and strategies, and the
names and addresses of, amounts of compensation paid to, and the trading and
sales performance of the Corporation's and its subsidiaries employees and
agents (the "Confidential Information"). The Executive further acknowledges
that the Confidential Information is proprietary to the Corporation and its
subsidiaries, that the unauthorized disclosure of any of the Confidential
Information to any person or entity will result in immediate and irreparable
competitive injury to the Corporation and its subsidiaries, and that such
injury cannot adequately be remedied by an award of monetary damages. The
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Executive agrees not to disclose at any time any Confidential Information to
any person or entity without the prior written permission of the Corporation.
(C) Non-Competition.
(i) The Executive agrees that the Executive
will not, during the period beginning on the Effective Date (unless
occasioned by the Executive's death) and continuing thereafter until the one
year anniversary thereof (the "Period"), directly or indirectly (whether as
an officer, director, employee, sales representative, agent, principal,
proprietor, consultant, advisor, partner, lender, investor or otherwise)
engage in, assist or have any interest in any person, firm, entity, business
or enterprise that (1) is engaged in any aspect of the communications or
telecommunications business or industry in which the Corporation, or any of
its subsidiaries or affiliates, is engaged as a material portion of its
business on the Effective Date or at any time during the Period, (2) is
engaged in any aspect of the information or data processing management,
outsourcing services or application software business or industry in which
the Corporation, or any of its subsidiaries or affiliates, is engaged as a
material portion of its business on the Effective Date or at any time during
the Period or (3) is engaged in any other business in which the Corporation,
or any of its subsidiaries or affiliates, is engaged as a material portion of
its business on the Effective Date or at any time during the Period; except
that the foregoing provisions of this paragraph (C) shall not prevent the
Executive from (x) owning, solely for investment purposes, up to 5% of the
issued and outstanding capital stock of any publicly traded company, (y)
continuing to serve on the Board of Directors (and any committees thereof) of
National Computer Systems Inc. or as a Trustee or on any Board of Trustee
committees of Northwestern Mutual Life Insurance Company or (z) serving on
the board of directors of any other company that the Chief Executive Officer
of the Corporation approves in writing (which shall not be unreasonably
withheld).
(ii) The Corporation and the Executive agree that
the Executive's agreement in (i) above (the "Noncompete Agreement") is the
principal inducement for the Corporation's willingness to enter into this
Agreement and make the retirement payments and provide the benefits to the
Executive contemplated by paragraphs (A) and (B) of Section 3 and that the
Corporation and the Executive intend the Noncompete Agreement to be binding
upon and enforceable against the Executive in accordance with its terms,
notwithstanding any common or statutory law to the contrary. Accordingly,
the Executive and the Corporation agree that, in the event the Executive
commences any action, suit or proceeding to invalidate the enforceability of
the Noncompete Agreement or adjudicate the limits or scope of its provisions,
or in the event the Executive asserts, in any action, suit or proceeding by
the Corporation against the Executive for a breach by the Executive of the
Noncompete Agreement that the Noncompete Agreement is invalid or
unenforceable in any respect or to any extent, the Corporation shall be
immediately excused from making, and shall be entitled immediately to
terminate, the payments and benefits contemplated by paragraphs (A) and (B)
of Section 3, irrespective of the outcome of any such action, suit or
proceeding.
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(D) Confidentiality. Except as otherwise
contemplated by paragraph (I) of Section 3, the terms of this Agreement shall
remain confidential and shall not be disclosed by or permitted to be
disclosed by the Executive to any persons other than the Executive's counsel,
financial advisor, accountant, his spouse, Xxxxx X. Xxxxxx, and his son Xxxxx
X. Xxxxxx, and to any other person or entity required by applicable law, and
each person to whom the Executive is permitted to and does disclose the terms
of this Agreement shall be advised by the Executive of this confidentiality
agreement and shall be directed to observe the requirements thereof, except
to the extent the Corporation has disclosed this Agreement in accordance with
paragraph (I) of Section 3. The Executive's obligations under this paragraph
(D) automatically shall terminate on the earlier of the fifth year
anniversary date of this Agreement or the date of the Executive's death.
(E) Reciprocal Release and Covenant Not to Xxx.
(i) In consideration of the retirement payments
and other benefits to be provided by the Corporation under this Agreement,
the sufficiency of which as good and valuable consideration the Executive
hereby acknowledges, the Executive, for and on behalf of himself, his heirs,
executors, administrators and assigns, hereby releases and discharges the
Corporation, its subsidiaries and affiliates, and their respective officers,
directors, employees, trustees, administrators, employee benefit plans, all
other representatives of the Corporation and agents of any of the foregoing,
and their successors and assigns (hereinafter the "Releasees"), from and
against any and all claims, liabilities, causes of action, debts, demands,
charges and claims of any nature whatsoever of any and every kind, whether in
tort, contract or pursuant to constitution, statute or regulation, and
whether for attorneys' fees or otherwise, which he now has, whether known or
unknown, accrued or matured, arising out of the employment relationship
between the Executive and the Corporation or any Releasee or the termination
thereof, except for the amounts, rights and benefits under this Agreement or
under the Indemnity Agreement. The foregoing release includes, but is not
limited to, all claims for compensation and fringe or other benefits and is a
complete and legally binding general release that releases all claims that
the Executive has or may have against any Releasee under local, state or
federal laws concerning civil rights, age discrimination, disability,
employee benefits, wrongful discharge, workers' compensation or any other
claims that may have arisen in connection with his employment with the
Corporation or any Releasee or the termination thereof. The Executive agrees
not to file any claim, charge, lawsuit or the like against any of the
Releasees concerning any matter in any way connected with his employment with
the Corporation or any Releasee or the termination thereof. The foregoing
release and covenant not to xxx, however, does not apply to any amount, right
or benefit to which the Executive is entitled under this Agreement or under
the Indemnity Agreement.
(ii) In consideration of the covenants by the
Executive under this Agreement, the sufficiency of which as good and valuable
consideration the Corporation hereby acknowledges, the Corporation, for and
on behalf of itself, its subsidiaries and their respective successors and
assigns, hereby releases and discharges the Executive and his spouse, heirs,
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executors, administrators and assigns from and against any and all claims,
liabilities, causes of action, debts, demands, charges and claims of any
nature whatsoever of any and every kind, whether in tort, contract or
pursuant to constitution, statute or regulation, and whether for attorneys'
fees or otherwise, which the Corporation or any of its subsidiaries now has,
whether known or unknown, accrued or matured, arising out of the employment
relationship between the Executive and the Corporation, or any of its
subsidiaries, except for the amounts, rights and benefits under this
Agreement or under the Indemnity Agreement. The Corporation agrees not to
file any claim, charge, lawsuit or the like against the Executive concerning
any matter in any way connected with his employment with the Corporation or
any of the Corporation's subsidiaries.
5. TERMINATION OF OTHER AGREEMENTS. Except for
the Indemnity Agreement and as otherwise expressly provided in this
Agreement, this Agreement shall terminate any and all other agreements or
arrangements between the Corporation or any of its subsidiaries and the
Executive under which the Corporation or any such subsidiary would be
obligated to make any payment to or pay any benefit to or with respect to the
Executive or any person or entity claiming through the Executive, including,
but not limited to, the Executive Compensation Agreement, and neither the
Corporation nor any subsidiary of the Corporation shall have any obligation
to make any such payment or pay any such benefit.
6. GENERAL PROVISIONS.
(A) Each and every provision of this Agreement is
subject to, and shall become effective only upon, express approval by the
Executive Committee of the Board and the execution by Xxxxx X. Xxxxxx of the
paragraph immediately following the Executive's signature on the signature
page of this Agreement. The Corporation shall seek approval of this
Agreement by the Executive Committee of the Board on or before January 5,
1996. On or before January 5, 1996, the Corporation shall notify the
Executive of the Executive Committee of the Board's decision whether to
approve this Agreement, which, in the case of such approval, shall be
accompanied by a certified resolution to that effect. If this Agreement is
not approved by the Executive Committee of the Board on or before January 5,
1996, or if Xxxxx X. Xxxxxx fails to sign the paragraph referred to in the
first sentence of this paragraph (A) concurrent with the signature of this
Agreement by the Executive, this Agreement shall be rendered void ab initio
and of no force or effect whatsoever.
(B) Warranties. Each party warrants that it or
he fully understands this Agreement; that no promise or inducement has been
offered to it or him to enter into this Agreement except as expressly set
forth herein; that this Agreement is executed without reliance upon any
statements or representations made by either party or its or his attorneys or
representatives to the other concerning the nature and extent of any claims
or damages or legal liability therefor; that this Agreement evidences the
entire settlement of the claims released herein; and the Executive warrants
that he is competent and authorized to enter into this Agreement and that
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this Agreement is executed by the Executive with full knowledge and
understanding of its contents.
(C) Applicable Withholding. Any payments or
benefits to be provided to the Executive, Xxxxx X. Xxxxxx, or any person or
entity claiming through the Executive, in accordance with this Agreement or
otherwise shall be subject to any applicable withholding required under
federal, state or local law and any additional withholding to which the
Executive has agreed. No Releasee shall be responsible for any tax imposed
upon the Executive, Xxxxx X. Xxxxxx, or other person or entity with respect
to any such payment.
7. NO REEMPLOYMENT. The Corporation does not
intend to reinstate the Executive to employment by the Corporation or any of
its subsidiaries at any time in the future, and the Executive does not intend
to seek such reinstatement at any time in the future. The Corporation and
its subsidiaries shall have no obligation to consider the Executive for
re-employment at any time hereafter.
8. SPECIFIC PERFORMANCE; OTHER REMEDIES.
(A) In General. The Executive acknowledges that
the covenants contained in Section 4 of this Agreement are reasonably
necessary to protect the trade secrets, confidential information and other
business interests of the Corporation and its subsidiaries and affiliates and
that the Executive's compliance with those covenants is necessary to protect
them from unfair competition and competitive injury. The Executive further
recognizes that a breach of any of those covenants will result in irreparable
and continuing harm and damage to the Corporation and its parent,
subsidiaries and affiliates, for which there will be no adequate remedy at
law. The Executive therefore agrees that in the event of a breach of any of
the covenants in Section 4 of this Agreement, the Corporation and its
subsidiaries and affiliates shall be entitled to injunctive relief and to
such other relief (whether at law or in equity) as a court of competent
jurisdiction deems proper in the circumstances, in addition to any other
remedy or relief to which any of them may be entitled.
(B) In Particular. The obligations of the
Corporation under paragraphs (A) and (B) of Section 3 of this Agreement are
conditioned upon the Executive's compliance with the covenants made by him
under paragraphs (C) and (E) of Section 4 of this Agreement, and in the event
the Executive fails to comply with any of those covenants and the Corporation
obtains a ruling to that effect from a court of competent jurisdiction, the
Corporation thereupon shall be excused from making any further payment
required under paragraphs (A) and (B) of Section 3 of this Agreement. The
Executive acknowledges that the foregoing forfeiture of payments and benefits
under this Agreement is reasonable in relation to the harm that the
Corporation would sustain if the Executive were to violate any of the
covenants contained in paragraphs (C) and (E) of Section 4 of this Agreement
in any material respect.
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9. NON-ASSIGNMENT. Any rights to payments or
benefits under this Agreement payable to or with respect to the Executive or
Xxxxx X. Xxxxxx may not be assigned, voluntarily or involuntarily, and any
attempt to do so shall be void. The Executive warrants and represents that
he has not assigned or attempted to assign to any third party any claim, or
any part thereof, that he may have or claim to have against the Releasees.
10. BINDING EFFECT.
(A) Parties. This Agreement shall inure to the
benefit of and be binding upon the Corporation. This Agreement shall inure
to the benefit of each of the Releasees. This Agreement shall inure to the
benefit of and be binding upon the Executive and his spouse, Xxxxx X. Xxxxxx,
and their respective personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, legatees and any
other person or entity claiming through the Executive. If the Executive
shall die while any amount would be payable to the Executive hereunder (other
than amounts which, by their terms, terminate upon the death of the
Executive) if the Executive had continued to live, unless otherwise provided
herein, the amount(s) shall be paid in accordance with the terms of this
Agreement to the executors, personal representatives or administrators of the
Executive's estate.
(B) Enforcement Costs and Expenses. In the event
of any action or proceeding between the parties concerning an alleged breach
of or default under this Agreement, the prevailing party shall be entitled to
collect from the other party all of the prevailing party's reasonable costs
and expenses (including, without limitation, attorneys fees) incurred by the
prevailing in connection therewith.
11. NOTICES. Notices and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below, or to such other address as either
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon actual
receipt:
To the Corporation: To the Executive:
ALLTEL Corporation Xx. Xxxx X. Xxxxxx
One Allied Drive 00 Xxxxx Xxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000 Xxxxxx Xxxx, XX 00000-0000
Attention: Chief Legal Officer
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12. MISCELLANEOUS. No provision of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by the Executive
and the Chief Executive Officer of the Corporation. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws
of the State of Arkansas.
13. CONSTRUCTION. The provisions of this
Agreement have been mutually created with the assistance of counsel for each
party, and no provision of this Agreement shall be construed against either
the Corporation or the Executive as the drafter thereof. Paragraph and
Section titles herein are for ease of reference purposes only and shall not
be considered in the construction of this Agreement.
14. VALIDITY. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain
in full force and effect. If any part of the Agreement is found to be
unenforceable the other provisions shall remain fully valid and enforceable.
In the event any provision of this Agreement is held unenforceable, such
provision shall be reformed so as to be enforced to the maximum extent
possible, and if a court determines that it is not possible to reform any
such provision of this Agreement, such provision will be severed from the
Agreement and the remainder of the Agreement shall be enforced to the full
extent permitted by law.
15. COUNTERPARTS. This Agreement may be executed
in several counterparts, each of which shall be deemed to be an original but
both of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have signed this
Agreement as of the date set forth above.
Attest: ALLTEL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxx Xxxx
Xxxxxxx X. Xxxxxx Name: Xxx X. Xxxx
Secretary Title: Chairman, President,
and Chief Executive Officer
ALLTEL INFORMATION SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title:Vice Chairman and COO
ALLTEL FINANCIAL INFORMATION
SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title:Vice Chariman and COO
Witness:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxx Xxxxxx
Xxxx X. Xxxxxx
The undersigned, Xxxxx X. Xxxxxx, hereby consents to the provisions of this
Agreement and (i) accepts and agrees to be bound by the provisions of Section
3 of this Agreement, (ii) joins in and agrees to be bound by the provisions of
paragraphs (D) and (E) of Section 4 of this Agreement, (iii) agrees to be
bound by the provisions of Section 5 of this Agreement, (iv) makes the
warranties contained in paragraph (B) of Section 6, and the second sentence
of Section 9 of this Agreement, as though she were "the Executive" as that
term is used therein and (v) agrees to be bound by the provisions of Section
6 and Sections 8 through 15 of this Agreement.
Witness:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
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