EXHIBIT 10ab
[FORM OF EXECUTIVE SEVERANCE AGREEMENT]
AGREEMENT
I. RECITALS
A. The parties to this Agreement are U S WEST, Inc. and its subsidiaries
and affiliated companies collectively ("U S WEST") at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ________________________ (hereinafter "Executive")
whose address is _____________________________________, Executive is currently
employed by U S WEST ________________________________ as
________________________________________.
B. This Agreement sets forth the understanding between U S WEST and
Executive concerning the circumstances under which Executive will be entitled
to receive severance benefits in the event his employment with U S WEST is
terminated under circumstances identified in this Agreement and describes the
nature and amount of the severance benefits.
C. 1. IT IS UNDERSTOOD AND AGREED BY U S WEST AND EXECUTIVE THAT THIS
AGREEMENT DOES NOT CONTAIN ANY PROMISE OR REPRESENTATION CONCERNING THE TERMS,
CONDITIONS, OR DURATION OF EXECUTIVE'S EMPLOYMENT WITH U S WEST OR ANY
SUBSIDIARY OR AFFILIATED COMPANY OR THE CIRCUMSTANCES UNDER OR THE PROCEDURES BY
WHICH THE EMPLOYMENT RELATIONSHIP MAY BE TERMINATED. EXECUTIVE SPECIFICALLY
ACKNOWLEDGES THAT HIS EMPLOYMENT WITH U S WEST, INC. OR ANY SUBSIDIARY OR
AFFILIATED COMPANY IS AT-WILL AND MAY BE ALTERED OR TERMINATED BY EITHER
EXECUTIVE OR U S WEST AT ANY TIME, WITH OR WITHOUT CAUSE AND/OR WITH OR WITHOUT
NOTICE. THIS AT-WILL EMPLOYMENT RELATIONSHIP MAY NOT BE MODIFIED UNLESS IN A
WRITTEN AGREEMENT SIGNED BY THE EXECUTIVE AND AN AUTHORIZED OFFICER OF U S WEST.
2. EXECUTIVE FURTHER ACKNOWLEDGES THAT THE WRITTEN POLICIES AND
PROCEDURES OF U S WEST, INC. AND ITS SUBSIDIARIES AND AFFILIATED COMPANIES DO
NOT CONSTITUTE CONTRACTS BETWEEN U S WEST AND EXECUTIVE, AND THAT THE POLICIES
AND PROCEDURES ARE SUBJECT TO CHANGE BY U S WEST AT ANY TIME IN U S WEST'S SOLE
DISCRETION. EXECUTIVE ACKNOWLEDGES THAT, AS OF THE DATE OF EXECUTION OF THIS
AGREEMENT, THERE IS NO CONTRACT, EITHER EXPRESSED OR IMPLIED, IN EFFECT BETWEEN
EXECUTIVE AND U S WEST THAT ALTERS THE AT-WILL EMPLOYMENT RELATIONSHIP OR
CREATES OR IMPLIES THE EXISTENCE OF AN EMPLOYMENT CONTRACT OR TERM OF EMPLOYMENT
BETWEEN THE PARTIES. EXECUTIVE ACKNOWLEDGES THAT, WITH THE EXCEPTION OF
EXECUTIVE'S STOCK OPTION AGREEMENTS AND
EXECUTIVE'S RESTRICTED STOCK AGREEMENTS AND ANY NEGOTIATED AND DULY EXECUTED:
PENSION, MEDICAL, DEFERRED COMPENSATION, LIFE INSURANCE, LONG TERM INCENTIVE
PROGRAM (LTIP), SHORT TERM INCENTIVE PROGRAM (STIP), AND/OR CHANGE OF CONTROL
AGREEMENTS,THERE ARE NO OTHER CONTRACTS IN EFFECT BETWEEN EXECUTIVE AND
U S WEST, INC. OR ANY SUBSIDIARY OR AFFILIATED COMPANY AS OF THE DATE OF
EXECUTION OF THIS AGREEMENT PROVIDING FOR SEVERANCE BENEFITS.
D. In consideration of the mutual covenants contained herein and other
valuable consideration, receipt of which is hereby acknowledged, the parties
contract and agree as follows.
II. DEFINITIONS
The following definitions apply for the purposes of only this Agreement:
A. "COMPANY INFORMATION" means any confidential, legal, financial,
marketing, business, technical, or other information, including specifically but
not exclusively, information that Executive prepared, caused to be prepared, or
received in connection Executive's employment with U S WEST , such as,
management and business plans, business strategies, software, software
evaluations, trade secrets, personnel information, marketing methods and
techniques, and any of the above-recited information as it relates to U S WEST
which shall have been obtained and/or learned during his employment and which
shall not be public knowledge. This definition does not apply to (a)
information or knowledge that already is or subsequently may come into the
public domain after the termination of employment other than by way of
unauthorized disclosure by Executive, or (b) information or knowledge that
Executive is required to disclose by order of a court or governmental agency
after timely notice is provided to U S WEST to allow the U S WEST to take legal
action with respect to the matter.
B. "COMPANY PROPERTY" means, reports, files, memoranda, records, credit
cards, keys, passes, computer access codes, software, cellular phones, computer
equipment, facsimile equipment and other property which Executive has requested
or received, prepared or helped to prepare in connection with his employment.
COMPANY PROPERTY includes any copies, duplicates, reproductions or excerpts of
the materials outlined in this paragraph.
C. "CONDITIONS" means that: (1) Executive has been DISCHARGED FROM
EMPLOYMENT; (2) within fifty (50) days after the date of Executive's DISCHARGE
FROM EMPLOYMENT, Executive has executed and delivered to the office of the
Executive Vice President Law and Human Resources and General Counsel for
U S WEST, Inc. a WAIVER & RELEASE; (3) the period for revocation of the WAIVER &
RELEASE has expired; (4) and Executive has complied with the requirements
regarding return of all CONFIDENTIAL PROPERTY defined in this Agreement.
D. "DISCHARGE FOR CAUSE" means Executive's discharge from employment due
to Executive's intentional breach of or failure to perform his employment
duties, intentional engaging in conduct that is demonstrably and materially
injurious to U S WEST, monetarily or otherwise, or
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failure to comply with the U S WEST Code of Business Ethics and Conduct,
Corporate Policies or Compliance Plans. The parties acknowledge that this
definition of DISCHARGE FOR CAUSE is not intended and does not apply to any
aspect of the relationship between U S WEST and any of its employees, including
Executive, beyond determining Executive's entitlement to SEVERANCE BENEFITS
under this Agreement.
E. "DISCHARGE(D) FROM EMPLOYMENT" means Executive's involuntary and
permanent separation from employment with U S WEST by virtue of discharge
without cause, layoff as a part of a reduction in force, or RESIGNATION OR
RETIREMENT UNDER CERTAIN CIRCUMSTANCES. DISCHARGE(D) FROM EMPLOYMENT shall not
include any other circumstances, including, but not limited to, Executive's
DISCHARGE FOR CAUSE, Executive's resignation or retirement, any leave of
absence, the termination of Executive's employment due to death or disability,
or the transfer of Executive to a new location or the reassignment of Executive
to U S WEST, Inc. or a wholly or partially owned subsidiary (except as otherwise
provided for herein) of U S WEST, Inc.
F. "LTIP" means the U S WEST, Inc. Executive Long Term Incentive Plan and
the U S WEST Communications Executive Long Term Incentive Plan.
G. "RESIGN(ATION) OR RETIRE(MENT) UNDER CERTAIN CIRCUMSTANCES" means that
Executive has elected to resign or retire under the following circumstances:
1. that Executive has been offered, and has resigned or retired
rather than accept, a transfer or assignment to another position within the
United States, the United Kingdom or Continental Europe (this provision relating
to the United Kingdom and Continental Europe shall apply only until
_____________) with U S WEST, Inc., a subsidiary of U S WEST, Inc., or an
affiliated entity in which U S WEST, Inc. owns, directly or indirectly, 50% or
more of the entity, if the new position is not comparable or superior (in terms
of responsibility and remuneration) to the position held by Executive
immediately prior to the transfer or reassignment; or
2. that Executive has been offered, and has resigned or retired
rather than accept, a transfer or assignment to another position within the
United States with a company affiliated with U S WEST, Inc. in which U S WEST,
Inc. owns, directly or indirectly, less than 50% of the outstanding stock; or
3. that Executive has been offered, and has resigned or retired
rather than accept, a transfer or reassignment to another position that is not
located within the United States.
H. "SEVERANCE BENEFITS" means:
Cash Payments
1. Within thirty (30) days after the date Executive has complied
with the CONDITIONS, the U S WEST company that Executive is employed by
immediately prior to his DISCHARGE FROM EMPLOYMENT shall pay Executive in United
States dollars in the United States the SEVERANCE PAYMENT, as applicable, in
appreciation for his many years of service to U S WEST, substantially all of
which service was rendered by Executive over many years in the United States.
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Applicable state and federal withholding taxes will be deducted from the gross
amount of this severance. None of the payments pursuant to this paragraph shall
be included in the calculation of Executive's pension or savings benefits with U
S WEST.
2. Within thirty (30) days after the CONDITIONS have been satisfied,
the U S WEST company that Executive is employed by immediately prior to his
DISCHARGE FROM EMPLOYMENT shall pay to Executive a sum equal to (a) a pro rata
portion of the amount that would have been payable to Executive, if any, under
the STIP at target and (b) a pro rata portion of the cash value, if any, of the
amount that would have been payable to Executive under the LTIP at target. In
the event any of such plans have been modified or amended prior to the date of
DISCHARGE FROM EMPLOYMENT, the terms of the modified or amended plans shall
control. In determining the "target" for the 1996 LTIP, it will be assumed
that the 1996 LTIP Total Shareowners' Return ("TSR") is 13.5 %. The amount of
the STIP payments payable hereunder may be determined by U S WEST in accordance
with any criteria then in place. The amount of any STIP payments made to
Executive pursuant to this Agreement will be included in the calculation of
Executive's nonqualified pension benefits.
3. Within thirty (30) days after the CONDITIONS are satisfied, the
U S WEST company that Executive is employed by immediately prior to his
DISCHARGE FROM EMPLOYMENT shall pay to the Executive (less applicable taxes), an
amount equal to the balance available to Executive for financial counseling
services for the remainder of the year of the Executive's termination and will
pay to Executive (less applicable taxes), the amount available for financial
counseling services for the following year. In the alternative, if U S WEST is
providing financial counseling services to the Executive at a group rate, U S
WEST will maintain in place the level of financial counseling services paid for
by U S WEST for the remainder of the year of Executive's termination and for the
following year.
Stock and Stock Options
4. All restrictions applicable to any stock granted by U S WEST to
Executive under the LTIP shall lapse sixteen (16) days after execution of the
WAIVER & RELEASE and the CONDITIONS are satisfied. All restrictions applicable
to any stock granted by U S WEST to executive under the STOCK PLAN after
February 15, 1996, shall lapse in accordance with the terms of such grants and,
if applicable, sixteen (16) days after execution of the WAIVER & RELEASE and the
CONDITIONS are satisfied.
5. (a) Pursuant to the terms of the STOCK PLAN, the Human Resources
Committee of the U S WEST, Inc. Board of Directors has the sole discretion to
alter or amend the vesting schedule of any stock options or stock appreciation
rights granted under the STOCK PLAN prior to October 31, 1995. A pro rata
portion of stock options and stock appreciation rights (rounded up to the
nearest whole option) issued to Executive on or after October 31, 1995 under the
STOCK PLAN that are not exercisable on the date of DISCHARGE FROM EMPLOYMENT
shall become fully exercisable sixteen (16) days after execution of the WAIVER
& RELEASE by Executive and after the CONDITIONS are satisfied. Such pro rata
portion shall be determined on a monthly basis by multiplying the number of
options in any grant by a fraction, the numerator of which is the number
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of full months from grant date to the date of termination and the denominator of
which is the original vesting schedule of the grant.
(b) If Executive's DISCHARGE FROM EMPLOYMENT is concurrent with
Executive's retirement from employment as defined in the STOCK PLAN, Executive
shall have the right to elect to have Executive's stock options governed by the
provisions of II. H. 5. (a) above or by the terms of the agreement under which
the options were granted. If Executive fails to make such an election within
thirty (30) days after the notice of Executive's DISCHARGE FROM EMPLOYMENT, the
stock options will be governed by II. H. 5 (a) above.
6. Provided Executive does not go into business in competition with
U S WEST or become employed by a firm engaged in such competition, as determined
in the sole discretion of the Human Resources Committee of the Board of
Directors of U S WEST, Inc. or its designee, Executive shall have the right, at
any time up to three (3) years after the date of his DISCHARGE FROM
EMPLOYMENT (but in no event after the expiration date of the applicable stock
options and stock appreciation rights), to exercise stock options and stock
appreciation rights held as of the date of DISCHARGE FROM EMPLOYMENT. In the
event Executive does go into business in competition with U S WEST or becomes
employed by a firm that is engaged in such competition within the three (3) year
period, Executive shall have ninety (90) days after the date that he becomes
employed in the competitive position to exercise any stock options and stock
appreciation rights that have not previously expired to the extent that such
stock options and stock appreciation rights are then otherwise exercisable.
Medical, Dental and Vision Benefits
7. The U S WEST company that Executive is an employee of immediately
prior to his DISCHARGE FROM EMPLOYMENT shall take such steps as are necessary to
permit the Executive to continue, in full force and effect and "AT U S WEST'S
EXPENSE" for the "APPLICABLE PERIOD," medical, dental and vision benefits for
Executive and the Executive's dependents on the same basis as if Executive had
remained an active employee during such applicable period; provided, however,
that all rights to such benefits (except the right to continue health plan
coverage at the Executive's own expense under COBRA) shall terminate if the
CONDITIONS are not satisfied within ninety (90) days after the date of
Executive's DISCHARGE FROM EMPLOYMENT with U S WEST.
Career Guidance Services
8. The U S WEST company that Executive is an employee of immediately
prior to his DISCHARGE FROM EMPLOYMENT shall take such steps as are necessary to
provide career guidance services to Executive through an outside consulting firm
selected by U S WEST; provided, however, that U S WEST may terminate such
services if the CONDITIONS are not satisfied within ninety (90) days of the date
of his DISCHARGE FROM EMPLOYMENT. U S WEST will have sole discretion to
determine the exact amounts of career guidance services that will be provided,
and Executive does not have any right to receive a cash payment in lieu of
career guidance services.
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I. "SEVERANCE PAYMENT" means a payment amount equal to:
1. If Executive is a Band 1 Officer (or successor designation) on
the date that Executive is notified of his DISCHARGE FROM EMPLOYMENT, a lump
sum severance amount equal to two (2) times Executive's annual base salary in
effect on the date of such notification; or
2. If Executive is either a Band 2 or Band 3 Officer (or successor
designation) on the date that Executive is notified of his DISCHARGE FROM
EMPLOYMENT, a lump sum severance amount equal to one and one-half (1.5) times
Executive's base salary in effect on the date of notification.
J. "STOCK PLAN" means the U S WEST, Inc. 1994 Stock Plan and its
predecessor and successor plans.
K. "STIP" means the U S WEST Inc. Short Term Incentive Plan, the
Executive Short Term Incentive Plan or the short term incentive plan for the
Executive's business unit as applicable.
L. "U S WEST" means U S WEST, Inc. and any subsidiary, division or
affiliated company unless otherwise specifically stated herein.
M. "WAIVER & RELEASE" means the waiver and release of claims against
U S WEST and their representatives, in the form attached hereto as Appendix "A."
N. Solely for purposes of section II.H.7. of this Agreement relating to
medical, dental and vision benefits: (i) the phrase "AT U S WEST'S EXPENSE"
means that, if Executive makes a timely election of COBRA coverage, the U S WEST
company Executive is employed by immediately prior to his DISCHARGE FROM
EMPLOYMENT will waive the first six (6) months of COBRA premiums and, if the
Executive is not eligible at the expiration of the initial six (6) month period
for coverage under another employer's health plan, the U S WEST company
Executive is employed by immediately prior to his DISCHARGE FROM EMPLOYMENT will
provide the Executive with a lump sum payment equivalent to twelve (12) months
of COBRA premiums (less applicable taxes); and (ii) the term "APPLICABLE PERIOD"
means the eighteen (18) months following the date of the Executive's DISCHARGE
FROM EMPLOYMENT or, if less than eighteen (18) months, the period for which the
U S WEST Health Care Plan is required to extend continuation coverage under
COBRA.
III. COVENANTS
A. CONSIDERATION. U S WEST agrees to provide the following to Executive
as consideration for the execution of this Agreement:
1. Employment at U S WEST;
2. Eligibility for SEVERANCE BENEFITS described in the Agreement;
and
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3. The sum of One Thousand Dollars ($1,000.00) which will be paid
within thirty (30) days after the execution of this Agreement. This sum will
not be included in the calculation of any qualified or non-qualified retirement
or welfare benefits to which Executive may otherwise be entitled.
B. RECEIPT OF SEVERANCE BENEFITS.
1. In the event Executive is employed as a Band 1, Band 2 or Band 3
officer, or any successor designation, on the date Executive is notified of his
DISCHARGE FROM EMPLOYMENT, Executive will receive SEVERANCE BENEFITS only if he
has complied fully with the CONDITIONS including, but not limited to, execution
of the WAIVER & RELEASE. Executive agrees that if provided, the SEVERANCE
BENEFITS are provided, in part, in exchange for the elimination of any
obligation of U S WEST to compensate Executive for the remainder of the term of
any Expatriate Agreement and that if Executive is not entitled to any
compensation in addition to the SEVERANCE BENEFITS upon satisfaction of the
CONDITIONS. U S WEST will have no responsibility for any taxes on the SEVERANCE
BENEFITS, including no responsibility to follow the Taxation Methodology
approach outlined in any Expatriate agreement. Executive agrees to indemnify U S
WEST and hold U S WEST harmless for any liability for any taxes due on the
SEVERANCE BENEFITS. Executive agrees that if provided, the SEVERANCE BENEFITS
are provided, in part, in exchange for the elimination of any obligation of U S
WEST to compensate Executive for the remainder of the term of any Expatriate
Agreement and that Executive is not entitled to any compensation in addition to
the SEVERANCE BENEFITS upon satisfaction of the CONDITIONS. U S WEST will have
no responsibility for any taxes on the SEVERANCE BENEFITS, including no
responsibility to follow the Taxation Methodology approach outlined in any
Expatriate agreement. Executive agrees to indemnify U S WEST and hold U S WEST
harmless for any liability for any taxes due from Executive on the SEVERANCE
BENEFITS. Executive will not be entitled to receive SEVERANCE BENEFITS pursuant
to this Agreement if Executive is not DISCHARGED FROM EMPLOYMENT.
2. In the event Executive accepts a transfer or reassignment to a
position with a company affiliated with U S WEST, Inc. in which U S WEST, Inc.
owns, directly or indirectly, less than 50% of the outstanding stock, this
Agreement shall terminate on the date Executive begins employment with the
affiliated company, with the exception that the arbitration provisions shall
remain in full force and effect with respect to any disputes arising from or
related to Executive's employment and/or termination from employment with
U S WEST.
3. In the event Executive was covered by this Agreement, but is not
a Band 1, 2 or 3 officer (or successor designation) for a period of less than 12
months on the date he is notified of his DISCHARGE FROM EMPLOYMENT or the date
of Executive's notice of intent to RESIGN OR RETIRE UNDER CERTAIN CIRCUMSTANCES
as the case may be, Executive will be eligible for SEVERANCE BENEFITS under this
Agreement. In all other circumstances, if Executive is not a Band 1, 2 or 3
officer (or successor designation) on the date he is notified of his DISCHARGE
FROM EMPLOYMENT or the date of Executive's notice to RESIGN OR RETIRE UNDER
CERTAIN CIRCUMSTANCES, Executive will only be entitled to severance benefits
under the terms and conditions set forth in the U S WEST Management Separation
Program or any successor plan, if any, if otherwise eligible under the terms and
conditions of that program or plan.
C. DEATH, RETIREMENT, DISABILITY.
1. In the event of the death, retirement or disability of Executive,
nothing in this Agreement shall be construed to limit or curtail the right of
Executive or, in the case of death, Executive's beneficiaries, to receive the
benefits to which they are entitled under the retirement plans, disability
policies and other applicable plans maintained by U S WEST.
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2. In the event Executive is notified of his DISCHARGE FROM
EMPLOYMENT under circumstances that would qualify Executive to receive
SEVERANCE BENEFITS, but Executive dies before he has fulfilled the CONDITIONS,
the SEVERANCE BENEFITS will be paid to Executive's estate provided that the
CONDITIONS are satisfied by the estate within ninety (90) days of Executive's
death.
D. RETURN AND PROTECTION OF PROPERTY AND COMPANY INFORMATION.
1. Within five (5) days after the date Executive's employment
terminates, for whatever reason, Executive agrees to return to U S WEST all
COMPANY PROPERTY.
2. Executive agrees to hold in a fiduciary capacity for the benefit
of U S WEST all secret or CONFIDENTIAL INFORMATION COMPANY INFORMATION,
including, without limitation, secret or other non-public knowledge or data
relating to U S WEST and its respective businesses, which shall have been
obtained and/or learned during his employment and which shall not be public
knowledge (other than by acts by Executive or his representatives in violation
of this Agreement). After termination of Executive's employment with U S WEST,
Executive will not, without prior written consent of U S WEST, communicate or
divulge any such information, knowledge or data to anyone other than U S WEST or
its designated representative.
3. Executive agrees that any inventions, discoveries, creations
(including without limitation software, writings, drawings and other works),
improvements, confidential information or other intellectual property that he
may develop or create, or assist in developing or any creating, during his
employment with U S WEST, whether or not patentable or eligible for copyright,
which relate to the actual, planned, or foreseeable business or other activities
of U S WEST, or which result from his work for U S WEST, are the exclusive
property of U S WEST and at no time later than his termination of employment
with U S WEST Executive agrees to disclose promptly such intellectual property
to U S WEST and will, both during and after his employment, and without
additional compensation, execute all assignments and other documents and do all
things reasonably necessary to secure and enforce U.S. and foreign intellectual
property rights for U S WEST , including patents and copyrights.
4. Executive shall comply with the provisions relating to the return
and protection of COMPANY PROPERTY and COMPANY INFORMATION following the
termination of his employment, regardless of whether he is eligible to receive
SEVERANCE BENEFITS pursuant to this Agreement.
E. NONSOLICITATION OF EMPLOYEES. Executive agrees that he will not for
a period of one (1) year immediately following the termination of his employment
with U S WEST for any reason, either Executive's own account or in conjunction
with or on behalf of any other person or entity whatsoever, directly or
indirectly induce, solicit, or entice away any person who is a managerial level
employee of U S WEST (including, but not limited to an Officer, Executive
Director or director-level employee (or any equivalent or successor term for
such employees)) at the time of or
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any time during the three (3) months immediately preceding Executive's
termination of employment.
F. ARBITRATION OF DISPUTES.
1. Any claim, controversy or dispute between Executive and U S WEST,
whether sounding in contract, statute, tort, fraud, misrepresentation,
discrimination or any other legal theory, including, but not limited to,
disputes relating to the interpretation of this Agreement; claims under Title
VII of the Civil Rights Act of 1964, as amended; claims under the Civil Rights
Act of 1991; claims under the Age Discrimination in Employment Act of 1967, as
amended; claims under 42 U.S.C. Section 1981, Section 1981a, Section 1983,
Section 1985, or Section 1988; claims under the Family and Medical Leave Act of
1993; claims under the Americans with Disabilities Act of 1990, as amended;
claims under the Fair Labor Standards Act of 1938, as amended; claims under the
Employee Retirement Income Security Act of 1974, as amended; claims under the
Colorado Anti-Discrimination Act; or claims under any other similar federal,
state or local law or regulation, whenever brought, shall be resolved by
arbitration. The only legal claims between Executive and U S WEST that are not
included for arbitration within this Agreement are claims by Executive for
workers' compensation or unemployment compensation benefits and/or claims for
benefits under any U S WEST benefit plan, if the plan does not provide for
arbitration of such disputes. BY SIGNING THIS AGREEMENT, EXECUTIVE VOLUNTARILY,
KNOWINGLY AND INTELLIGENTLY WAIVES ANY RIGHT HE MAY OTHERWISE HAVE TO SEEK
REMEDIES IN COURT OR OTHER FORUMS, INCLUDING THE RIGHT TO A JURY TRIAL AND THE
RIGHT TO RECOVER PUNITIVE DAMAGES ON ANY COMMON LAW AND/OR CONTRACT CLAIMS. The
Federal Arbitration Act, 9 U.S.C. Sections 1-16 ("FAA") shall govern the
arbitrability of all claims, provided that they are enforceable under the FAA,
as it may be amended from time to time. In the event the FAA does not govern,
the Colorado Uniform Arbitration Act shall apply. Additionally, the substantive
law of Colorado, to the extent it is consistent with the terms stated in this
Agreement for arbitration, shall apply to any common law claims. This Agreement
for arbitration supersedes any other arbitration agreement Executive and U S
WEST to the extent they are inconsistent.
2. A single arbitrator engaged in the practice of law shall conduct
the arbitration under the applicable rules and procedures of the American
Arbitration Association ("AAA"). Any dispute, that relates directly or
indirectly Executive's employment with U S WEST or to the termination of
Executive's employment will be conducted under the AAA Employment Dispute
Resolution Rules, effective November 1993. The arbitrator shall be chosen from
a state other than Executive's state of residence and other than Colorado.
Other than as set forth herein, the arbitrator shall have no authority to add
to, detract from, change, amend, or modify existing law. All arbitration
proceedings, including without limitation, settlements and awards, under this
Agreement will be confidential. The parties shall share equally the hourly fees
of the arbitrator. U S WEST shall pay the expenses (such as travel and lodging)
of the arbitrator. The prevailing party in any arbitration may be entitled to
receive reasonable attorneys' fees. The arbitrator's decision and award shall be
final and binding, as to all claims that were, or could have been, raised in the
arbitration, and judgment upon the award rendered by the arbitrator may be
entered to any court having jurisdiction thereof. If any party hereto files a
judicial or administrative action asserting claims subject to this arbitration
provision, and another
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party successfully stays such action and/or compels arbitration of such claims,
the party filing said action shall pay the other party's costs and expenses
incurred in seeking such stay and/or compelling arbitration, including
reasonable attorneys' fees.
IV. ADDITIONAL PROVISIONS
A. BINDING EFFECT. This Agreement shall bind and benefit the heirs,
personal representatives, administrators, successors, subsidiaries,
affiliates and assigns of U S WEST and Executive.
B. CHANGE OF CONTROL. If Executive and U S WEST, Inc. have entered into
a Change of Control Agreement that is in force on the date that a "change of
control" (as defined in the Change of Control Agreement) of U S WEST, Inc.
occurs and Executive is entitled to and elects to receive benefits under the
Change of Control Agreement, the terms of the Change of Control Agreement shall
supersede this Agreement, whether the Change of Control Agreement was signed
prior to or subsequent to the execution of this Agreement, and Executive will
not be entitled to SEVERANCE BENEFITS under this Agreement.
C. ENTIRE UNDERSTANDING. This Agreement contains the entire
understanding of the parties with respect to the matters addressed herein and
supersedes all prior representations, understandings and agreements of the
parties with respect thereto, with the following exception. In the event a
court declares the arbitration provisions of this Agreement to be unenforceable
for any reason, any prior agreement by Executive to submit employment disputes
to arbitration shall remain enforceable. This Agreement may be modified only by
a written agreement executed by both Executive and an authorized officer of U S
WEST.
D. GOVERNING LAW. Except as otherwise specifically stated for any
provision of this Agreement, the substantive law of Colorado, only to the extent
it is consistent with the terms stated herein, shall apply to any claims between
the parties to the extent not preempted by ERISA or other applicable federal
law.
E. NOTICES. All notices and communications required by this Agreement
shall be in writing and delivered by hand delivery, by registered or certified
mail, return receipt requested, postage prepaid, or by overnight mail, addressed
as follows:
To Executive:
_______________________________
_______________________________
_______________________________
To U S WEST:
U S WEST, Inc.
Executive Vice President Law and Human Resources and General Counsel
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
F. AVAILABILITY OF INJUNCTIVE RELIEF. The parties agree that U S WEST
would suffer irreparable injury if Executive breaches his responsibilities
relating to the return and protection of COMPANY INFORMATION or COMPANY PROPERTY
and that the injury would not be compensable fully in monetary damages.
Accordingly, in the event Executive breaches or threatens to breach that
condition, the arbitration provisions of this Agreement shall not prevent
U S WEST or Executive from obtaining injunctive relief from a court of competent
jurisdiction to enforce the obligations relating to the return and protection of
COMPANY INFORMATION or COMPANY PROPERTY, pending decision on the merits by the
arbitrator.
G. WAIVER OF BREACH. The waiver by either U S WEST or Executive of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any prior or subsequent breach by either party.
H. SEVERABILITY.
1. In case any one or more of the provisions of this Agreement
shall be found to be invalid, illegal or unenforceable for any reason, the
validity, legality and enforceability of the remaining provisions and/or clauses
contained herein shall not in any way be affected or impaired thereby. Any
clause and/or provision that is found to be invalid, illegal or unenforceable
shall be deemed, without further action on the part of the parties hereto, to be
modified, amended and/or limited to the minimum extent necessary to render such
clauses and/or provisions valid and enforceable. A claim by either party that
any provision of this Agreement is invalid, illegal or unenforceable shall be
determined by an arbitrator under the arbitration provisions of this Agreement.
In the event an arbitrator determines that any provision of this Agreement is
invalid, illegal or unenforceable for any reason, it is the mutual desire of the
parties that the arbitrator reform the Agreement to the minimum extent necessary
to render such provision valid and enforceable and direct the parties to comply
with the requirements of this Agreement as modified.
2. To the extent the arbitration provisions of any prior agreement
between the parties are inconsistent with the arbitration provisions in the
Agreement or incorporated herein, the arbitration provisions of this Agreement
shall supersede the conflicting terms, with the sole exception of the
arbitration provisions contained in any change of control Agreement between the
parties that is governed by section IV(B) of this Agreement. In the event a
court or arbitrator concludes that the arbitration provisions of this Agreement
are not enforceable, then any agreement executed by the parties prior to the
execution of this Agreement that provides for the arbitration of disputes shall
be fully enforceable.
I. EXPATRIATE AGREEMENTS. This Agreement shall control if there is any
conflict between the terms of the Expatriate Agreement and this Agreement with
the exception of any
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specially negotiated and duly executed short or long term incentive agreements.
Executive agrees that this Agreement provides the only severance benefits and
compensation for the Executive in the event of Executive's DISCHARGE FROM
EMPLOYMENT and supersedes and replaces the obligations of U S WEST in the
"Company initiated termination" or similar provisions under any Expatriate
Agreement.
J. ACKNOWLEDGMENTS. Executive confirms that:
1. U S WEST has advised Executive to consult legal counsel before
signing this Agreement or the WAIVER AND RELEASE provided for herein.
2. Executive has reviewed this Agreement in its entirety, fully
understands its meaning and effect and agrees to its terms.
K. WAIVER OF CERTAIN RIGHTS, INCLUDING REINSTATEMENT. Executive
understands that, by entering into this Agreement:
1. Executive is voluntarily waiving the following rights relating to
claims or complaints based in whole or in part on federal, state or local law,
whether statutory or common law, including, without limitation, discrimination
under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 ET SEQ.
claims sounding in tort and contract:
(a) Executive's right to seek reinstatement to employment at
U S WEST in the event Executive's employment with
U S WEST is terminated;
(b) Executive's right to a jury trial on claims, including
claims against U S WEST relating to Executive's employment
and/or termination from employment with U S WEST, which will
be governed by arbitration; and
(c) Executive's right to seek punitive or exemplary damages
against U S WEST on any and all common law claims.
2. Executive is entitled only to the consideration identified in
this Agreement and no other consideration value, payment or other compensation
of any kind from U S WEST.
3. Executive has had a period of at least 45 days within which to
consider this Agreement prior to its execution.
L. RIGHT TO REVOKE. Executive has the right to revoke this Agreement for
a period of SEVEN (7) days following the date of execution set forth below. The
Agreement shall not become effective or enforceable until the revocation period
has expired.
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M. RIGHT TO WAIVE CERTAIN PROVISIONS. The parties acknowledge that
U S WEST retains the right, in its sole discretion, to waive enforcement of all
or any part of the provisions relating to Executive's Waiver of Certain Rights,
Including Reinstatement, as set forth in section IV(K) of this Agreement. Such
a decision not to enforce all or any provision must be in writing and signed by
the U S WEST Executive Vice President Law and Human Resources and General
Counsel or his successor or designee. In the event U S WEST chooses not to
enforce all or any part of these provisions, the waiver of rights set forth in
the applicable provision(s) therein shall be null and void.
Executed in duplicate this _____ day of ______________________, 1996.
U S WEST
____________________________________ By ______________________________
EXECUTIVE
Its _____________________________
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APPENDIX A
RELEASE
In consideration of the Severance Benefits identified in section II (H) of
the Agreement (form "Executive Agreement") between Executive and U S WEST, Inc.
or any of its subsidiaries or affiliated companies (hereinafter "Agreement"),
Executive, as a free and voluntary act, forever releases and discharges U S
WEST, Inc., its subsidiaries, divisions and affiliates, and the directors,
officers, employees, agents and representatives of all of them (hereinafter
"U S WEST"), of and from any and all debts, obligations, demands, claims,
judgments or causes of action of any kind whatsoever, whether now known or
unknown, in tort, in contract, by statute, or any other basis for compensatory,
punitive or other damages, expenses, reimbursements or costs of any kind,
including, but not limited to, any and all claims, demands, rights and/or causes
of action, arising up to the date of this Release, including those which might
arise out of allegations relating to claimed breach of an alleged oral or
written contract, or related purported employment discrimination or civil rights
violations including, but not limited to, alleged violations of Title VII of the
Civil Rights Act of 1964, as amended; claims under the Civil Rights Act of 1991;
claims under the Age Discrimination in Employment Act of 1967, as amended;
claims under 42 U.S.C. Section 1981, Section 1981a, Section 1983, Section 1985,
or Section 1988; claims under the Family and Medical Leave Act of 1993; claims
under the Americans with Disabilities Act of 1990, as amended; claims under the
Fair Labor Standards Act of 1938, as amended; the Employees Retirement Income
Security Act of 1974, as amended, claims under the Colorado Anti-Discrimination
Act; or claims under any other similar federal, state or local law or regulation
which Executive might have or assert against any of said entitles or persons by
(1) reason of active employment by U S WEST or any associated or affiliated
company or the termination of said employment relationship and all circumstances
related thereto, or (2) reason of any other matter, case or thing whatsoever
that may have occurred prior to the date of execution of this Release. U S WEST
specifically disclaims any liability to or for wrongful acts against Executive
or any other person on the part of itself, its shareholders, subsidiaries and
affiliates and the directors, officers, employees and agents of any of them.
NOTICE OF REVOCATION FOR ONLY MINNESOTA RESIDENTS
EXECUTIVE UNDERSTANDS THAT HE MAY RESCIND (THAT IS, CANCEL) THIS RELEASE
WITHIN FIFTEEN (15) CALENDAR DAYS OF SIGNING IT. TO BE EFFECTIVE EXECUTIVE'S
RESCISSION MUST BE IN WRITING AND DELIVERED TO GENERAL COUNSEL, U S WEST, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, EITHER BY MAIL OR BY
HAND DELIVERY WITHIN THE 15-DAY PERIOD. IF BY MAIL, THE RESCISSION MUST BE: (1)
POSTMARKED WITHIN THE 15-DAY PERIOD, (2) PROPERLY ADDRESSED, AND (3) SENT BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED.
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NOTICE TO EMPLOYEES (40 YEARS OF AGE OR OLDER)
OF PERIOD TO CONSIDER RELEASE AND OF RIGHTS TO REVOKE
THIS RELEASE MEANS, IN PART, THAT EXECUTIVE GIVES UP ALL RIGHTS TO DAMAGES
OR MONEY BASED ON CLAIMS OF AGE DISCRIMINATION AGAINST U S WEST, IF THE AGE
DISCRIMINATION CLAIMS AROSE BEFORE EXECUTIVE SIGNED THIS RELEASE. ANY CLAIMS FOR
DAMAGES OR MONEY BASED ON AGE DISCRIMINATION, WHICH MAY ARISE AFTER SIGNING THIS
RELEASE, ARE NOT AFFECTED BY THIS RELEASE.
EXECUTIVE HAS THE RIGHT WITHIN SEVEN (7) DAYS OF THE DATE OF THIS RELEASE
TO REVOKE (THAT IS, TO CANCEL) THE RELEASE. IF EXECUTIVE REVOKES THE RELEASE,
THEN THE RELEASE SHALL BECOME NULL AND VOID, MEANING EXECUTIVE WILL NOT RECEIVE
ANY OF THE PAYMENTS AND OTHER THINGS SET FORTH IN THE AGREEMENT. TO BE
EFFECTIVE, EXECUTIVE'S REVOCATION MUST BE IN WRITING AND RETURNED TO THE GENERAL
COUNSEL, U S WEST, INC. WITHIN SEVEN (7) DAYS OF THE DATE OF THIS RELEASE. IF
BY MAIL, REVOCATION MUST BE (1) POSTMARKED WITHIN THE SEVEN-DAY PERIOD, (2)
PROPERLY ADDRESSED TO GENERAL COUNSEL, U S WEST, INC. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, AND (3) SENT BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED. EXECUTIVE AGREES THAT THE MONIES AND OTHER THINGS SET FORTH IN THE
AGREEMENT ARE CONSIDERATION TO WHICH HE WOULD NOT OTHERWISE BE ENTITLED WITHOUT
SIGNING THIS RELEASE, AND THAT THESE CONSIDERATIONS CONSTITUTE PAYMENT IN
EXCHANGE FOR SIGNING THIS RELEASE.
EXECUTIVE ACKNOWLEDGES THAT HE HAS BEEN GIVEN AMPLE TIME, NOT LESS THAN 21
CALENDAR DAYS, TO CONSIDER THIS RELEASE WITH HIS ATTORNEY PRIOR TO SIGNING IT,
AND HIS SIGNING OF THIS RELEASE IS COMPLETELY VOLUNTARY.
Dated this______ day of _____________________________________, 19___.
U S WEST EXECUTIVE
By: _________________________________ By: ____________________________
Title: ______________________________
THIS IS A RELEASE -- READ CAREFULLY BEFORE SIGNING.
YOU SHOULD CONSULT WITH AN ATTORNEY
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