Exhibit (10)(iii)(A)21
EMPLOYMENT AGREEMENT
This Agreement, effective April 9, 2001, by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇
("Executive") and AT&T Corp., a New York Corporation with its principal place of
business at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ("Company")
(collectively "the Parties"):
WHEREAS, Executive seeks employment with the Company; and
WHEREAS, the Company seeks to secure Executive's services on the terms provided
herein;
NOW THEREFORE, in consideration of the mutual covenants set forth below, the
Parties agree as follows:
Term of Employment. Effective April 9, 2001 ("Effective Date"), the Company will
hire Executive on a full time basis to render exclusive services to the Company
and its affiliates under the terms set forth in this Agreement. The Executive
accepts this employment and will render services as required by the Company
using the Executive's best efforts and will report to the President of AT&T
Corp. This Agreement should not be construed or interpreted as containing any
guarantee of continued employment. The employment relationship at AT&T is by
mutual consent ("Employment-At-Will"). This means that executives have the right
to terminate their employment at any time and for any reason. Likewise, the
Company reserves the right to discontinue Executive's employment with or without
cause at any time and for any reason, subject to the rights of Executive to the
severance benefits as set forth in this Agreement.
Title of Executive. At Effective Date, Executive's title shall be President and
CEO of AT&T Consumer Services.
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Compensation and Benefits.
Base Salary. The Executive shall receive salary compensation ("Base Salary")
from the Company in payment for all of Executive's services under this Agreement
at an annual rate of Six Hundred Thousand ($600,000.00) dollars per year,
subject to review by the Company's compensation committee on an annual basis
with regard to the possibility of an increase in Base Salary provided, however,
the Executive's Base Salary shall not be decreased. The Company shall pay
Executive the Base Salary in monthly installments.
Annual Bonus. The Annual Bonus ("Annual Bonus") for Company executives is based
on measures of Company and individual performance. The Company makes no
representations under the terms of this Agreement regarding criteria for or
amounts of bonuses paid during the term of this Agreement. However, Executive
shall be entitled to receive an annual bonus during the term of this Agreement
under the same terms and conditions as other Company executives. The target
amount for Executive's Annual Bonus shall be one hundred percent of base salary,
Six Hundred Thousand ($600,000.00) Dollars, subject to review by the Company's
compensation committee on an annual basis with regard to the possibility of an
increased target Annual Bonus. Executive shall become eligible for a bonus under
this paragraph beginning in 2002 for performance year 2001 and in each March
thereafter during the term of this Agreement. The bonus for performance year
2001 shall not be subject to proration for Executive's partial service in that
year.
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AT&T Long Term Incentive Compensation. All compensation under this Paragraph 4
shall be subject to the terms of the AT&T 1997 Long Term Incentive Program (or
its successor) and the AT&T Non-Competition Guideline, attached to this
Agreement as Attachments A and B, respectively. The awards described below in
Paragraphs 4(a), 4(b) and 4(c) comprise the Annual Long Term Incentive Grant for
2001. Any future Annual Long Term Incentive Grants, to the extent applicable,
will be decided by the Company's Board of Directors. The awards described in
Paragraphs 4(d), 4(e) and 4(f) are special one-time hiring grants under the AT&T
Long Term Incentive Plan.
2001 AT&T Performance Shares. On the Effective Date, Company will grant
Executive Thirty-Six Thousand Nine Hundred (36,900) AT&T Performance Shares
covering the 2001-2003 performance period. Payment for Performance Shares
awarded under this paragraph 4(a) are contingent upon the Company's attainment
of financial performance measurements determined by the Company's Board of
Directors. Payout, if any, for Performance Shares awarded under this paragraph
shall be made during the first quarter of 2004 or as otherwise determined by the
Company's Board of Directors.
2001 AT&T Stock Options. Company will grant Executive options for One Hundred
Forty-Five Thousand Four Hundred (145,400) shares of AT&T Common Stock. Sixty
percent (60%) of these options will be granted on the Effective Date. The
remainder of the options (40%) will be granted later in
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2001 at the time such grant is made to other executives. For stock options
granted under this paragraph 4(b), the term of the stock option grant is ten
years and the stock options will vest Twenty-Five percent (25%) annually
beginning on the first anniversary of the Effective Date. The stock option price
of the initial sixty percent (60%) shall be the fair market value of AT&T Common
Stock on the Effective Date; the stock option price of the remaining forty
percent (40%) shall be the fair market value of AT&T Common Stock on the date
those options are granted.
Restricted Stock Units. On the Effective Date, the Company shall grant Executive
One Hundred Nineteen Thousand Three Hundred (119,300) AT&T Restricted Stock
Units. Restricted Stock units issued to Executive under this paragraph 4(c)
shall vest three years from the date of the grant.
Special Stock Option Grants.
(i) If AT&T Corp. issues a separate stock tracking the performance of AT&T
Consumer Services ("Consumer Tracking Stock"), then Executive shall be eligible
to receive a stock option grant for Consumer Tracking Stock in an amount that,
based on ratio of tracking stock to Long Term Incentive payments, is consistent
with Consumer Tracking Stock provided to other similarly situated Executives and
subject to the same terms as any stock option grant for Consumer Tracking Stock
made to other similarly situated Executives. For example, if the Board
determines that the value of a tracker option grant should be X% of an
executive's long term incentive
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target for 2001, then Executive's tracker option grant value would be X% of her
$5.2m 2001 long term incentive target for 2001.
(ii) On the Effective Date the Company will make a one-time grant to
Executive of options for Eight Hundred Thousand (800,000) shares of AT&T Common
Stock. For stock options granted under this paragraph 4(d)(ii), the term of the
stock option grant is ten (10) years and the stock options shall vest
Thirty-Three and One-Third Per Cent (33 1/3%) annually beginning on the first
anniversary of the Effective Date. The stock option price shall be the fair
market value of AT&T Common Stock on the Effective Date.
(iii) On the Effective Date the Company will make a one-time grant of AT&T
stock options to Executive determined as follows: $1,890,000 will be divided by
the product of the fair market value of AT&T stock on Effective Date and .4.
From the number which results from this calculation will be subtracted 145,400.
The resulting number will be the number of stock options granted to Executive
under this subparagraph. The term of the stock option grant is ten (10) years
and the stock options shall vest twenty five percent annually beginning on the
first anniversary of the Effective Date. The stock option price shall be the
fair market value of AT&T Common Stock on the Effective Date
Seasoned Performance Shares. The Company shall issue to Executive Performance
Share grants for the 1999-2001 and 2000-2002 cycles. On the Effective Date,
Company will grant Executive Thirty-Six Thousand Nine
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Hundred (36,900) AT&T Performance Shares covering the 1999-2001 performance
period and Thirty-Six Thousand Nine Hundred (36,900) AT&T Performance Shares
covering the 2000-2002 performance period. Payment for Performance Shares
awarded under this paragraph 4(e) are contingent upon the Company's attainment
of financial performance measurements determined by the Company's Board of
Directors. Payout, if any, for Performance Share awarded under this paragraph
shall be made during the first quarter of 2002 and the first quarter of 2003,
respectively, or as otherwise determined by the Company's Board of Directors.
(f) Special Grant of AT&T Restricted Shares. On the Effective Date the
Company shall award the Executive a one-time grant of One Hundred Seventy Five
Thousand (175,000) AT&T Restricted Shares. Such shares shall vest Thirty Three
and One Third Percent (33 1/3%) per year beginning on the first anniversary of
the Effective Date.
Restitution for Certain Forfeitures. In order to address certain forfeitures
associated with Executive leaving her prior employer, and to incent Executive to
join the Company, the Company shall provide to Executive the following cash
hiring bonuses:
A payment of Three Hundred Thousand Dollars ($300,000.00) within 30 days from
the Effective Date;
A payment of One Million Dollars ($1,000,000.00) after one (1) full year of
employment;
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Special Deferral Account: On the Effective Date, the Company will credit the
amount of Three Million Dollars ($3,000,000.00) to a Special Deferral Account in
Executive's name, which shall be credited with interest at a quarterly rate
equal to one quarter (1/4) of the average rate applicable to the Ten (10) Year
Treasury Note for the prior calendar quarter, plus .5 percent. The Special
Deferral Account shall bear interest from the Effective Date. This Special
Deferral Account shall vest on the third anniversary of the Effective Date,
provided, however, that if Executive leaves the employ of the Company
voluntarily or because of a Company initiated termination for Cause (as defined
in paragraph 15) prior to the third anniversary of the Effective Date, the
Special Deferral Account shall be forfeited in its entirety. Attachment C
contains the terms and conditions of the Special Deferral Account.
When Executive sells her vacation home in Lake Tahoe a payment equal to the
amount the Company would have paid for real estate commission, closing costs and
shipment of household goods to had the Executive been entitled to relocation
benefits on the vacation home pursuant to the Company's relocation plan. To the
extent the Company's reimbursement of the Executive's relocation expense results
in taxable income to the Executive, the Company will provide a tax allowance to
offset the federal and state income and Medicare portion of FICA tax impact of
this payment (to the extent not otherwise deductible or for which Executive is
not entitled to an offsetting reduction in taxable income) and an additional
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allowance to offset the federal income and Medicare portion of FICA tax impact
of the tax allowance itself.
Other Compensation.
Perquisites. During Executive's employment under this Agreement, the Company
shall provide Executive with the perquisites of employment as are commonly
provided to other Company executives at a level of authority commensurate to
Executive and shall reimburse Executive for reasonable and necessary business
expenses.
Benefits. During Executive's employment under this Agreement, the Company shall
provide to Executive coverage under benefit programs in accordance with those
Executive, mid-career hire and Senior Management benefit plans as are generally
made available to other Company executives. Attachment D outlines the benefits
available on the Effective Date. The Company reserves the right to modify and/or
eliminate any benefit plan applicable to Executive; provided, however, that any
modification or deletion of a benefit plan shall not affect Executive to any
greater or lesser extent than any other Company executive.
Relocation. The Company shall pay for Executive's relocation under the terms of
AT&T Relocation Plan B. The terms and conditions of AT&T Relocation Plan B shall
apply, including but not limited to the requirement that Executive use a
registered real estate broker approved by the relocation firm assigned to
Executive. Any tax allowances payable under
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this paragraph will be in accordance with the terms and conditions of AT&T
Relocation Plan B.
Financial Counseling. The Company shall reimburse Executive for financial
counseling fees paid to her personal financial counselor during her employment
with the Company. Executive will not be required to use one of the three AT&T
approved financial counseling firms. Fees subject to reimbursement shall include
fees for individual financial counseling, preparation of federal and state
income tax returns and preparation of Executive's will and other estate planning
documents. The Company shall pay Executive a federal tax allowance on the
reimbursed fees, calculated in accordance with Company practices applicable to
other Company executives.
Costs Associated with this Agreement. The Company shall reimburse Executive for
costs incurred by Executive for attorney review and financial counseling
associated with negotiation and execution of this Agreement. To the extent the
Company's reimbursement of these costs results in taxable income to the
Executive, the Company will provide a tax allowance to offset the federal
income, state income, and the Medicare portion of FICA tax impact of this
payment (to the extent not otherwise deductible) and an additional allowance to
offset the federal income, state income, and Medicare portion of FICA tax impact
of the tax allowance itself.
Legal Fees. Executive represents that (a) she has not executed in favor of U S
West Communications or Qwest Communications International, Inc.
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(Qwest) any covenant not to compete with Qwest and (b) she is not aware of any
requirement or request by Company to make any disclosure or take any action in
her Company role that would violate any continuing duty which she may owe to
Qwest. Based upon these representations, the Company shall reimburse Executive
for reasonable legal fees and costs incurred by Executive in resisting or
defending any claim, demand, lawsuit or arbitration proceeding brought against
her by her previous employer, Qwest. This obligation of the Company includes all
legal expenses and attorneys fees incurred by Executive in connection with
responding to demands by Qwest and negotiations with Qwest with respect to any
such claims or demands irrespective of whether formal legal proceedings are
commenced. This obligation also includes all legal expenses and attorneys fees
incurred by Executive in connection with responding to demands by Qwest and
negotiations with Qwest prior to the date of this Agreement. The Company shall
also indemify and hold harmless Executive from any other costs, expenses,
losses, judgments, or awards entered against Executive in any such legal
proceeding, including, without limitation, lawsuits or arbitration proceedings,
to the fullest extent allowed by law. Executive further agrees that if any
lawsuit or arbitration against her is filed by Qwest, she will, to the fullest
extent legally permissible, keep the Company fully informed of all developments
in connection with any such proceeding and cooperate with Company in connection
with its obligations outlined herein. To the extent the Company's reimbursements
under this
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Paragraph 6(f) results in taxable income to the Executive, the Company will
provide a tax allowance to offset the federal income, state income, and Medicare
portion of FICA tax impact of this payment (to the extent not otherwise
deductible) and an additional allowance to offset the federal and state income,
and Medicare portion of FICA tax impact of the tax allowance itself.
Company Airplane. For a period of time until Executive relocates to New Jersey,
but not to extend beyond September 30, 2003, she will be authorized to use a
Company provided plane (plane to be provided will be in the class of "corporate
jet aircraft") to commute from Denver or Lake Tahoe to New Jersey and from New
Jersey to Denver or Lake Tahoe (one round trip per week). To the extent that the
use of the Company plane is considered taxable income to Executive the Company
will provide a tax allowance to offset the Federal and state Income and Medicare
portion of FICA tax impact of this payment (to the extent not otherwise
deductible) and an additional allowance to offset the Federal and state Income
and Medicare portion of FICA tax impact of the tax allowance itself. The Company
also agrees that Executive may designate one other person to travel with her on
a Company provided plan for three house-hunting trips during this period.
Imputed income resulting from this person's travel will also be grossed-up as
described above in this paragraph. As an OG member Executive will have priority
use of corporate aircraft for business purposes.
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Impact of Company Restructuring on Restricted Stock Units, Restricted Shares,
Stock Options and Performance Shares. In the event that AT&T Wireless and AT&T
Broadband become independent companies from AT&T Corp. through a divestiture,
sale or some similar means, all grants made under this Agreement in the form of
Restricted Stock Units, Restricted Shares, Stock Options and Performance Shares
based on AT&T Corp. stock shall be treated in accordance with the plan developed
and approved by the Company's Board of Directors as such plan is applicable to
equity granted in 2001 to Executive and other Company executives .
Change in Control. In the event of a Change in Control of the Company, severance
payments to Executive shall be governed by the Change in Control provisions
applicable to OG members approved by the Company's Board of Directors on October
25, 2000.
Confidentiality of Trade Secrets and Business Information.
Executive agrees that she will not, at any time during her employment or
thereafter, disclose or use any trade secret, proprietary or confidential
information of the Company or any subsidiary or affiliate of the Company,
obtained during the course of her employment, except as required in the course
of such employment or with the written permission of the Company or, as
applicable, any subsidiary or affiliate of the Company or as may be required by
law, provided that, if Executive receives legal process with
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regard to disclosure of such information, she shall promptly notify the Company
and cooperate with the Company in seeking a protective order.
Executive agrees that at the time of the termination of her employment with the
Company, whether at the instance of the Executive or the Company, and regardless
of the reasons therefore, she will deliver to the Company, and not keep or
deliver to anyone else, any and all notes, files, memoranda, papers and, in
general, any and all physical matter containing information, including any and
all documents significant to the conduct of the business of the Company or any
subsidiary or affiliate of the Company which are in her possession, except for
any documents for which the Company or any subsidiary or affiliate of the
Company has given written consent to removal at the time of the termination of
the Executive's employment and her personal rolodex, phone book and similar
items.
Non-competition.
In consideration for payments made under this Agreement, including but not
limited to Paragraphs 3(a), 3(b), and (4), Executive agrees that she will not,
for a period of Two (2) years after her Employment with the Company, establish a
relationship with a competitor (including but not limited to an employment or
consulting relationship) or engage in any activity which is in conflict with or
adverse to the interest of the Company, as defined by the AT&T Non-Competition
Guideline (hereinafter referred to as a "Competitive Activity"). Executive
recognizes that this obligation includes, and is not limited to, an agreement
that she shall not work for a competitor of AT&T
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Corp. as an executive, consultant, independent contractor or in any other
capacity for a period of Two (2) years following the termination of her
employment with the Company, regardless of whether Executive or the Company
terminates the employment relationship.
In addition to Executive's obligations outlined in paragraph 10(a) of this
Agreement, any and all payments (except those made from Company-sponsored
tax-qualified pension or welfare plans), benefits or other entitlements to which
the Executive may be eligible in accordance with the terms hereof, may be
forfeited, whether or not in pay status, at the discretion of the Company, if
Executive engages in Competitive Activity for a period of Two (2) years
following termination of her Employment from the Company, regardless of whether
Executive or the Company terminates the employment relationship. The payments,
benefits and other entitlements hereunder are being made in part in
consideration of the obligations of this paragraph 10 and in particular the
post-employment payments, benefits and other entitlements are being made in
consideration of, and dependent upon compliance with this paragraph. This
paragraph shall apply notwithstanding any other provision of this Agreement.
No forfeiture or cancellation shall take place under paragraph 10(b) with
respect to any payments, benefits or entitlements hereunder or under any other
award agreement, plan or practice unless the Company shall have first given
Executive written notice of its intent to so forfeit, or cancel or pay out and
Executive has not, within thirty (30) calendar days of giving
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such notice, ceased such unpermitted Competitive Activity, provided that the
foregoing prior notice procedure shall not be required with respect to a
Competitive Activity which Executive initiated after the Company had informed
the Executive in writing that it believed such Competitive activity violated
this paragraph 10 or the AT&T Non-Competition Guideline.
Nothing in this Section 10 shall prohibit the Executive from being a passive
owner of not more than one percent (1%) of the outstanding common stock, capital
stock and equity of any firm, corporation or enterprise so long as the Executive
has no active participation in the management of business of such firm,
corporation or enterprise.
If the restrictions stated herein are found by a court to be unreasonable, the
Parties agree that the maximum period, scope or geographical area reasonable
under such circumstances shall be substituted for the stated period, scope or
area and that the court shall revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law.
Resolution of Disputes. Any disputes arising under or in connection with this
Agreement shall be resolved by third party mediation of the dispute and, failing
that, by binding arbitration, to be held in New Jersey, in accordance with the
rules and procedures of the American Arbitration Association. Judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The Company shall pay the costs of the arbitrator or the
mediator but not the legal fees of
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Executive; provided, however, that the Company shall bear all such costs if
Executive prevails in such arbitration on any material issue.
Non-Interference. During Executive's employment and for a period of Two (2)
years following the effective date of Executive's termination, for any reason,
from the Company, Executive agrees not to directly or indirectly recruit,
solicit or induce, any employees, consultants or independent contractors of the
Company to terminate, alter or modify their employment or other relationship
with the Company. During Executive's employment and for a period of Two (2)
years following the effective date of Executive's termination, for any reason,
from the Company, Executive agrees not to directly or indirectly solicit any
customer or business partner of the Company to terminate, alter or modify their
relationship with the Company or interfere with the Company's relationships with
any of its customers or business partners on behalf of any enterprise that
directly or indirectly competes with the Company.
Injunction. If Executive commits a breach of any of the provisions of Paragraphs
9 through 12 or any part thereof, the Company shall have the right and remedy to
have the provisions of this Agreement specifically enforced by way of
preliminary and/or permanent injunction by any court having jurisdiction, it
being acknowledged and agreed by Executive and Company that any such breach will
cause irreparable injury to the Company and that money damages will not provide
an adequate remedy to the Company. Furthermore, this Agreement is intended to
protect the
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proprietary rights of the Company in important ways, and even the threat of any
misuse of the technology or other confidential information of the Company would
be irreparably harmful because of the importance of that technology and
confidential information. In light of these considerations, Executive agrees
that a court of competent jurisdiction should immediately enjoin any breach or
threatened breach of Paragraphs 9 through 12 of this Agreement, upon Company's
request, and the Company is released from the requirement of posting any bond in
connection with temporary or preliminary injunctive relief, to the extent
permitted by law. Such right to injunctive relief shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity.
Company Initiated Termination of Employment or Good Reason Termination. Should
the Company terminate Executive's employment without Cause or should Executive
terminate her employment for Good Reason, Executive will receive a payment
equivalent to the payment to which other similarly situated Company executives
would be entitled at the time of the termination of her employment under the
terms of the Senior Officer Separation Plan applicable to OG members. This
payment shall be payable to Executive within ninety (90) days of her last day of
employment with the Company. For termination by Executive for Good Reason or by
the Company without Cause, Executive shall also be entitled to the following:
(a) accelerated vesting of Stock Options, Restricted Shares and Restricted Stock
Units in accordance with the terms applicable to Company initiated
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terminations; (b) payment of Annual Bonus in the target amount for the year in
which the termination occurs, prorated to reflect length of employment during
that year; (c) outstanding Performance Shares shall continue to vest; (d)
immediate vesting of the Special Deferral Account set forth in paragraph 5(c);
(e) payment to Executive of any unpaid hiring bonus under paragraphs 5(a), (b),
and (d) of this Agreement; (f) coverage for herself and eligible dependents
under the Senior Management Separation Medical Plan; (g) continuation of Senior
Management Universal Life Insurance; and (h) financial counseling for one year,
including income tax return preparation for year of termination and a federal
tax allowance to Executive for the cost of the financial counseling in
accordance with Company practices applicable to other Company executives.
Termination for Cause and Good Reason. For purposes of this Agreement, "Cause"
and "Good Reason" shall be defined as follows:
a) "Good Reason" termination shall mean any termination of
Executive's Company employment initiated by Employee, resulting from any
of the following events without Employee's express written consent, which
are not cured by the Company within twenty (20) days of Employee giving
the Company written notice thereof:
(i) Executive's demotion to a position which is not of a rank and
responsibility comparable to members of the
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current Operations Group or those of a similar/replacing governance
body; provided, however, that the Company's decision not to continue
an Operations Group shall not be Good Reason, and provided, further,
that (1) while a change in the position to which Executive reports
will constitute Good Reason, changes in the specific individuals to
whom Executive reports shall not, alone, constitute Good Reason,
and/or (2) a reduction in your business unit's budget or a reduction
in your business unit's head count, by themselves, do not constitute
Good Reason, or
(ii) A reduction in Executive's "Total Annual Compensation" (defined
as the sum of Annual Base Salary Rate, Target Annual Incentive and
"Target Annual Long Term Incentive Grants") for any calendar or
fiscal year, as applicable, to an amount that is less than the Total
Annual Compensation that existed in the prior calendar or fiscal
year, as applicable. For purposes of this Paragraph the dollar value
of the "Target Annual Long Term Incentive Grants" shall exclude the
value of any special one-time or periodic long-term incentive
grants, and shall be determined by valuing Performance Shares, Stock
Units, Restricted Stock and Restricted
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Stock Units, etc., at the market share price utilized in valuing the
annual Senior Management compensation structures in the materials
presented to the Compensation and Employee Benefits Committee of the
Company's Board of Directors ("the Committee") when authorizing such
grants, and assuming 100% performance achievement if such grants
include performance criteria. Stock Options and Stock Appreciation
Rights will be valued by the Black-Scholes methodology (and related
share price) as utilized in the materials presented to the Committee
when authorizing such grants.
b) Cause termination shall mean:
(i) Executive's conviction (including a plea of guilty or
nolo contendere) of a crime involving theft, fraud, dishonesty or
moral turpitude;
(ii) violation by Executive of the Company's Code of Conduct
or Non-Competition Guideline;
(iii) gross omission or gross dereliction of any statutory,
common law or other duty of loyalty to the company or any of its
affiliates; or
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(iv) repeated failure to carry out the duties of Executive's
position despite specific instruction to do so.
c) A termination for Cause shall not take effect unless the
provisions of this paragraph (c) are complied with. The Executive shall be
given written notice by the Company of the intention to terminate her for
Cause, such notice (A) to state in detail the particular act or acts or
failure or failures to act that constitute the grounds on which the
proposed termination for Cause is based and (B) to be given within six (6)
months of the Company learning of such act or acts or failure or failures
to act. The Executive shall have ten (10) calendar days after the date
that such written notice has been given to the Executive in which to cure
such conduct, to the extent such cure is possible. If she fails to cure
such conduct, the Executive shall then be entitled to a hearing before the
President or such other persons or committees as the Board of Directors or
the Chief Executive Officer may direct or appoint. Such hearing shall be
held within fifteen (15) calendar days of such notice to the Executive,
provided she requests such hearing within ten (10) calendar days of the
written notice from the Company of the intention to terminate her for
Cause. If, within five (5) calendar days following such hearing, the
Executive is furnished written notice by the Company confirming that, in
its judgment, grounds for Cause on the basis of the original notice exist,
she shall thereupon be terminated for Cause.
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Termination Without Good Reason or For Cause. Should Executive leave her
employment without Good Reason ("Voluntary Termination"), Executive shall
receive nothing further under this Agreement except for (i) Stock Options,
Performance Shares, Restricted Shares and Restricted Stock Units already vested
and (ii) if Voluntary Termination occurs after September 30, 2003, benefits
under the then-applicable Senior Management Separation Medical Plan. In the
event of a Voluntary Termination, Executive's Stock Options, Performance Shares,
Restricted Shares and Restricted Stock Units awarded but not vested shall be
cancelled. If Executive is terminated for Cause at any time during this
Agreement, she shall receive nothing further from the Company as of the date of
her termination and all Stock Options, Performance Shares, Restricted Shares and
Restricted Stock Units vested but not exercised or paid shall be cancelled.
Special Voluntary Termination. If Executive resigns after September 30, 2003,
and is not the President and CEO of the AT&T Consumer Services unit with its own
tracking stock or of another publicly traded AT&T business unit spin-off
("Special Voluntary Termination") Executive's resignation shall be considered as
a termination for "Good Reason" and she shall be entitled to the benefits set
forth in paragraph 16 as well as the benefits set forth in paragraph 14 above.
Death and Long Term Disability.
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Termination Due to Death. In the event that the Executive's employment is
terminated due to her death, her estate or her beneficiaries, as the case may
be, shall be entitled to the following benefits: (i) Annual Bonus at target
level for such year prorated for the time on the payroll in the performance
year, payable in a single installment as soon as practicable following
Executive's death; (ii) all outstanding options, whether or not then
exercisable, shall become exercisable and shall remain exercisable in accordance
with the terms of the grants applicable to death; (iii) lapse of the
restrictions on Restricted Stock Units and Restricted Stock; (iv) payout at
target for each Performance Share cycle in which the Executive was participating
at the time of her death, prorated for the amount of time on the payroll in the
applicable three (3) year cycle (provided, however, for Seasoned Performance
Shares described in Paragraph 4(e) there is no prorate for the period of time in
each performance cycle prior to the Effective Date); (v) vesting and payout of
the Special Deferral Account under Paragraph 5(c); (vi) payment of any unpaid
cash hiring bonus under paragraphs 5(a), (b), and (d); and (vii) financial
counseling for one year including individual tax return preparation for
Executive for the year of death with a federal tax allowance for the cost of the
financial counseling calculated in accordance with Company practices applicable
to other executives.
Termination Due to Disability. The Company shall have the right to terminate
Executive's employment due to her Disability. In the event that the
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Executive's employment is terminated due to her Disability, she shall be
entitled to the following benefits: (i) disability benefits in accordance with a
disability program then in effect for senior executives of the Company; (ii)
Annual Bonus at target level for such year prorated for the time on the payroll
in the performance year, payable in a single installment as soon as practicable
after termination due to Disability; (iii) all outstanding options, whether or
not then exercisable, shall become exercisable and shall remain exercisable in
accordance with the terms of the grants applicable to Disability; (iv) lapse of
the restrictions on Restricted Stock Units and Restricted Stock; (v) payout at
target for each Performance Share cycle in which the Executive was participating
at the time of her Disability, prorated for the amount of time on the payroll in
the applicable three (3) year cycle (provided, however, for Seasoned Performance
Shares described in Paragraph 4(e) there is no prorate for the period of time in
each performance cycle prior to the Effective Date); (vi) vesting and payout of
the Special Deferral Account under paragraph 5(c); (vii) payment of any unpaid
cash hiring bonus under paragraph 5(a), (b), and (d); and (viii) financial
counseling for one year including individual tax return preparation for
Executive for the year of termination due to Disability, with a federal tax
allowance for the cost of the financial counseling in accordance with Company
practices applicable to other Company executives. For purposes of this paragraph
18, "Disability" shall mean the inability of Executive to perform her duties
under this Agreement by reason of any physical or
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mental impairment that is expected to prevent Executive from performing her
duties for a period exceeding twelve (12) months. Provided, however, that
nothing in this paragraph or this Agreement shall prevent the Company from
reassigning Executive's job duties on a temporary basis during any period in
which the Executive is receiving benefits under the Company's applicable
short-term disability benefits plan until the Executive returns to work
full-time or is terminated due to Disability. Such temporary reassignment of
duties would not be a Good Reason termination.
Membership on Boards. Executive may continue to serve on the Boards of Directors
or Advisory Committees of other companies in positions held prior to the
Effective Date assuming that the other company is not a competitor of the
Company as determined by the Secretary of the Company's Board of Directors.
Executive agrees to provide a list, as soon as practicable following the
Effective Date, of such Board and Committee memberships so that the Company may
make such determination.
Other Terms.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New Jersey, without regard to conflict of law
rules. If any provision of this Agreement is hereafter construed to be invalid
or unenforceable in any respect, the same shall not affect the remaining
provisions of this Agreement, without regard to the
26
invalid portion, and any such invalid provisions shall be reformed and construed
to the extent necessary to permit their enforceability so as to reflect the
intent of the parties hereto.
Executive hereby represents and warrants that (i) Executive has the right to
enter into this Agreement with the Company and to grant the rights contained in
this Agreement, and (ii) the provisions of this Agreement do not violate any
other contracts or agreements that the Executive has entered into with any other
individual or entity.
Executive agrees that the terms of this Agreement are reasonable and properly
required for the protection of the Company's legitimate business interests. If
any of the covenants or provisions contained in this Agreement, or any part
thereof, is hereafter construed to be invalid or unenforceable in any respect,
the same shall not affect the remainder of the covenant, covenants or provisions
which shall be given the maximum effect possible without regard to the invalid
portions and the remainder shall then be fully enforceable.
The article headings contained herein are for reference purposes only and shall
not in any way affect the meaning or interpretation of this Agreement.
This Agreement sets forth the entire agreement and understanding of the Parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof.
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This Agreement may not be amended, modified, superseded or waived, except by a
written instrument executed by both Parties hereto, or, in the case of a waiver,
by the party waiving compliance. The failure of either Party at any time or
times to require performance of any provision hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by either Party of the
breach of any term or covenant contained in this Agreement whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
Duration of Terms. The respective rights and obligations of the parties
hereunder shall survive any termination of Executive's employment or this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
Acknowledgment. Executive acknowledges that before signing this Agreement,
Executive was given the opportunity to read it, evaluate it and discuss it with
Executive's personal advisors, Executive's attorney and with representatives of
the Company. Executive further acknowledges that the Company has not provided
Executive with any legal advice regarding this Agreement.
Assignment. The Company specifically reserves the right to assign the terms of
this Agreement to any successor, whether the successor is the
28
result of any sale, purchase, merger, consolidation, asset sale, divestiture or
spin-off or any form or combination thereof, provided that such assignee or
transferee assumes the liabilities, obligations and duties of the Company as set
forth in this Agreement. No sale, purchase, merger, consolidation, asset sale,
divestiture or spin-off or any form or combination thereof shall be construed as
a termination of Executive's employment and will not trigger the Company's
obligations under paragraphs 14, 16 or 17 of this Agreement.
Release for Severance Payments. The Company shall be required to pay Executive
payments upon her termination under this Agreement only if Executive executes a
release upon her termination releasing the Company from any liability arising
from her employment. This release shall include, but not be limited to, claims
arising under employment statutes such as the Civil Rights Act of 1964, as
amended, and the Age Discrimination in Employment Act.
In the event of any termination of employment under this Agreement, the
Executive shall be under no obligation to seek other employment and there shall
be no offset against amounts due the Executive under this Agreement on account
of any remuneration attributable to any subsequent employment she may obtain.
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Vacation. The Executive shall be entitled to five (5) weeks paid vacation in
each calendar year of employment which shall accrue and otherwise be subject to
the Company's vacation policy for senior executives.
Indemnity.
a) The Company agrees that if the Executive is made a party, or is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that she is or was a director, officer or employee of the Company or is or
was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust,
limited liability company or other enterprise, including service with respect to
employee benefit plans, whether or not the basis of such Proceeding is the
Executive's alleged action in an official capacity while serving as a director,
officer, member, employee or agent, the Executive shall be indemnified and held
harmless by the Company to the fullest extent legally permitted or authorized by
the Company's certificate of incorporation or bylaws or resolutions of the
Company's Board of Directors or, if greater, by the laws of the State of New
Jersey, against all cost, expense, liability and loss (including, without
limitation, attorney's fees, judgments, fines, ERISA excise taxes or other
liabilities or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Executive in connection therewith, and
such indemnification shall continue as to the Executive even if he has ceased to
30
be a director, member, employee or agent of the Company or other entity and
shall inure to the benefit of the Executive's heirs, executors and
administrators. The Company shall advance to the Executive all reasonable costs
and expenses incurred by her in connection with a Proceeding within twenty (20)
calendar days after receipt by the Company of a written request for such
advance. Such request shall include an undertaking by the Executive to repay the
amount of such advance if it shall ultimately be determined that she is not
entitled to be indemnified against such costs and expenses.
(b) Neither the failure of the Company (including its board of directors,
independent legal counsel or stockholders) to have made a determination prior to
the commencement of any proceeding concerning payment of amounts claimed by the
Executive under Section 16(a) above that indemnification of the Executive is
proper because she has met the applicable standard of conduct, nor a
determination by the Company (including its board of directors, independent
legal counsel or stockholders) that the Executive has not met such applicable
standard of conduct, shall create a presumption that the Executive has not met
the applicable standard of conduct.
(c) The Company agrees to continue and maintain a directors' and officers'
liability insurance policy covering the Executive to the extent the Company
provides such coverage for its other executive officers. Such insurance coverage
shall be maintained for at least six (6) years following any Change of Control.
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(d) Following the termination of her employment for any reason, Executive
shall reasonably cooperate with the Company with respect to the prosecution or
defense by the Company of any legal proceedings in which Executive is or ought
to be a witness. Executive's obligation to cooperate pursuant to this paragraph
shall continue until such legal proceedings are concluded or her services as a
witness or consultant are no longer requires. Executive shall be compensated for
such time spent by her at the request of the Company at an hourly rate equal to
her effective hourly rate (including base salary and target short term bonus)
immediately preceding the termination of her employment
Notices. All notices and other communications required or permitted hereunder
shall be in writing and shall be deemed given when (a) delivered personally, (b)
sent by certified mail, postage prepaid, return receipt requested or (c)
delivered by overnight courier; to the Party concerned at the address indicated
below or to such changed address as such Party may subsequently give such notice
of:
If to the Company: AT&T Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Executive Vice President
Human Resources
32
If to the Executive: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o AT&T Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the Parties have executed this Agreement.
4/6/01 /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------- -------------------------------
Dated ▇▇▇▇▇ ▇▇▇▇▇▇▇
4/6/01 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇
------------------------- -------------------------------
Dated AT&T Corp.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇
EVP - Human Resources
