CINGULAR WIRELESS Exhibit 10.50
EXHIBITS
Employment Agreement with Xxxxxxx Xxxxxx
AGREEMENT AND RELEASE AND WAIVER OF CLAIMS
This Agreement and the Release and Waiver contained herein are made and
entered into in San Antonio, Texas, by and between Cingular Wireless, LLC
(hereinafter "Company"), SBC Communications Inc. (hereinafter "SBC"), BellSouth
Corporation (hereinafter "BellSouth") and Mr. Xxxxxxx Xxxxxx (hereinafter "Xx.
Xxxxxx") for and in consideration of the mutual promises and agreements set
forth below and are conditional on performance of such promises and agreements.
WHEREAS, BellSouth and SBC own all of the issued and outstanding equity
interests in the Company;
WHEREAS, Xx. Xxxxxx has agreed to terminate his employment relationship
with the Company on December 30, 2002; and
WHEREAS, the parties agree that in connection with Xx. Xxxxxx'x
termination of employment on December 30, 2002, Xx. Xxxxxx should receive
additional benefits and consideration as set forth herein, and that Xx. Xxxxxx,
among other things, should release and forever discharge Company, SBC, BellSouth
and any and all of their respective subsidiaries (which term when used
throughout this document shall include entities in which the company referred to
owns, directly or indirectly, fifty percent or more of the outstanding equity
interests), their respective officers, directors, agents, servants, employees,
successors and assigns and any and all employee benefit plans maintained by
Company, BellSouth SBC or any subsidiary thereof and/or any and all fiduciaries
of any such plan, from any and all common law and/or statutory claims, causes of
action or suits of any kind whatsoever, arising from or in connection with Xx.
Xxxxxx'x employment by Company or SBC (and their respective subsidiaries) and/or
Xx. Xxxxxx'x separation therefrom, all as set forth in more detail in the
Release and Waiver contained herein.
NOW, therefore, the parties further agree as follows:
1. Xx. Xxxxxx'x employment relationship with the Company shall terminate
effective at the close of business on December 30, 2002, and Xx. Xxxxxx resigns
from all officer and director positions that he may hold in Company, SBC,
BellSouth and in any subsidiary of any of them effective no later than at the
close of business on December 30, 2002. The Company and Xx. Xxxxxx agree that,
effective as of November 6, 2002, Xx. Xxxxxx has been released from all
day-to-day responsibilities and obligations associated with his position
including the obligation to report to the Company's offices each day, but that
the Company will continue to compensate Xx. Xxxxxx through December 30, 2002 at
his normal rate of compensation and benefits. All such compensation shall be
paid in accordance with normal payroll practices. For purposes of all
CINGULAR WIRELESS Exhibit 10.50
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benefit plans, Xx. Xxxxxx'x termination of employment shall be treated as an
involuntary termination by Company without cause. Xx. Xxxxxx agrees, for one
year following his termination of employment, to reasonably cooperate with the
Company and its counsel (with the Company responsible for all reasonable costs)
in both responding to information requests and otherwise responding to any
lawsuits or other legal claims.
2. Xx. Xxxxxx shall execute this Agreement and the Release and Waiver
contained herein and the Company shall pay Xx. Xxxxxx within ten days after the
Release and Waiver contained herein can no longer be revoked, a lump sum payment
in the amount of $2,256,500, less regular and customary withholdings for
federal, state and local income and social security taxes.
Included in the $2,256,500 lump sum payment is $2,150,000, which is a lump
sum severance payment and $106,500, which is a lump sum payment for outplacement
services. Additionally, Xx. Xxxxxx shall receive a 2002 Short Term Incentive
Award applicable to the 2002 Award Year in accordance with the terms of the plan
governing Short Term Incentive Award payments (i.e., prorated to date of
termination), including any adjustments for financial performance as provided in
the applicable plan.
For eighteen (18) months following his termination of employment, the
Company shall pay and Xx. Xxxxxx shall receive reimbursement of any amounts he
pays to continue coverage pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") in the health plans he participated in
immediately prior to his termination of employment, including the Cingular
Executive Health Plan. Such reimbursements shall be grossed up for federal,
state and local income tax, as applicable to Xx. Xxxxxx at the time the
reimbursement payments are made. Such reimbursement payments shall be made
semi-annually.
If Xx. Xxxxxx commences the relocation of his primary residence within six
(6) months of his termination of employment, the Company shall pay and Xx.
Xxxxxx shall receive relocation benefits as if he were an eligible participant
in the Cingular Relocation Plan; provided, however, the provisions of the
Cingular Relocation Plan regarding the purchase of a participant's home shall
not apply; provided, further, however, the relocation benefits described in this
paragraph shall not exceed a maximum aggregate limit of $350,000, including any
applicable income tax gross up. Notwithstanding anything in this paragraph to
the contrary, no relocation benefits shall be paid or reimbursed pursuant to
this paragraph with respect to eligible relocation expenses incurred on or after
December 31, 2003, and no relocation benefits will be provided hereunder if such
relocation is in connection with an employment opportunity made available to Xx.
Xxxxxx.
SBC agrees to extend the period in which Xx. Xxxxxx is allowed to exercise
the following vested SBC stock options issued under the SBC 1996 Stock &
Incentive Plan until December 30, 2005, which right to exercise such stock
options would otherwise expire on December 30, 2003:
No. of Options Exercise Price
-------------- --------------
17,420 $27.50
26,000 $27.8125
21,000 $43.00
14,333 $49.75
36,923 $39.25
140,625 $46.6875
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SBC acknowledges that the original term of the foregoing options, which is
not being extended hereunder, is longer than the extended term in which such
options are eligible for exercise pursuant to the terms of this Agreement. In
all other respects, the terms of the SBC 1996 Stock & Incentive Plan and the
option grant documents applicable to such stock options shall continue to apply.
For one year following his termination of employment, Xx. Xxxxxx shall be
entitled to receive benefits under the terms and conditions of the Officer
Communications Policy under which Xx. Xxxxxx was receiving benefits on his last
day of employment as if Xx. Xxxxxx retired from the Company, as such policy may
be amended from time-to-time.
Xx. Xxxxxx shall be treated no less favorably than the officers of the
Company in the determination and calculation of the payment to be received under
the Cingular Wireless Short Term Incentive Plan with respect to his 2002 award
payable in 2003, if any.
The Company agrees to indemnify Xx. Xxxxxx from and against any claims
that relate to and accrued during his employment by the Company to the same
degree and extent Xx. Xxxxxx was entitled to indemnification from the Company
during his employment. Further, Company agrees to maintain D&O insurance
covering Xx. Xxxxxx with respect to claims that accrued during his employment by
the Company to the same degree and extent such D&O insurance was provided during
his employment.
The consideration described in this Paragraph 2 shall be in lieu of, and
Xx. Xxxxxx hereby specifically waives any right to any other termination pay
allowance as a consequence of Xx. Xxxxxx'x termination of employment.
3. The Company hereby agrees to provide Xx. Xxxxxx on and after the date
of Xx. Xxxxxx'x termination of employment (and after the Release and Waiver
contained herein can no longer be revoked) with the benefits in the amounts and
as generally described in Attachment A (which is incorporated herein by this
reference) and more fully detailed herein below, which are referred to herein as
Xx. Xxxxxx'x "Equivalent SRIP." Such benefits reflect a modification of, and
shall be in lieu of, the benefits that would ordinarily be provided to Xx.
Xxxxxx pursuant to the Cingular Supplemental Retirement Income Plan (the
"SRIP"), a copy of which is attached hereto and incorporated herein by this
reference. Xx. Xxxxxx'x Equivalent SRIP shall be provided in accordance with,
and be governed in all respects by, the terms of the SRIP, except as provided
below:
(a) The three (3) year period referenced in section 7.2 of the SRIP is
deleted and a two (2) year period is substituted therefore; and
(b) Xx. Xxxxxx elects for Xx. Xxxxxx'x Equivalent SRIP, the form of
retirement benefit listed below next to which Xx. Xxxxxx has
subscribed his initials.
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_____ Life with 10-Year Certain Benefit described in
Section 3.3(a) of the SRIP.
_____ Joint and 100% Survivor Benefit described in
Section 3.3(b) of the SRIP.
_____ Joint and 50% Survivor Benefit described in
Section 3.3(c) of the SRIP.
The consideration described in this Paragraph 3 shall be in lieu of, and Xx.
Xxxxxx hereby specifically waives any right to any and all benefits under the
SRIP which Xx. Xxxxxx would otherwise become eligible for and entitled to on and
after the date of Xx. Xxxxxx'x termination of employment.
4. Except as agreed herein, this Agreement and the Release and Waiver
contained herein do not abrogate any of the usual entitlements which Xx. Xxxxxx
has or will have, first, while a regular employee and subsequently, upon
termination of employment as a former employee. These may include, among others:
(a) Customary and regular health care, disability and life insurance and
survivor benefits for which Xx. Xxxxxx may qualify subject to and in
accordance with the terms of applicable plans of Company, SBC,
BellSouth and their respective subsidiaries; and
(b) The distribution of benefits, if any, under the SBC 1992 Stock
Option Plan, SBC 1996 Stock and Incentive Plan, SBC 2001 Incentive
Plan, SBC Stock Savings Plan, Cingular Wireless Pension Benefit
Plan, Cingular Wireless Savings Plan, Cingular Wireless Short Term
Incentive Plan, Cingular Wireless Long Term Incentive Plan, Cingular
Wireless Cash Deferral Plan, Cingular Wireless Pension Make-up Plan,
Cingular Wireless Supplemental Retirement Transition Plan, Cingular
Wireless Executive Life Insurance Plan, and Cingular Wireless
Executive Health Plan.
Except as provided herein, all of said benefits will be subject to and
provided in accordance with the terms and conditions of the respective benefit
plans as applicable to Xx. Xxxxxx.
Further, it is hereby acknowledged in accordance with the provisions of
this Paragraph 4 that Xx. Xxxxxx shall be entitled to $60,077.60 in lieu of the
2002 vacation/personal/EWP/DH/FH days that Xx. Xxxxxx has not utilized prior to
Xx. Xxxxxx'x termination of employment and such payment shall be paid to Xx.
Xxxxxx within ten days after the Release and Waiver contained herein can no
longer be revoked.
Further, Company, SBC, and their respective subsidiaries have reserved the
right to end or amend any or all of its plans referred to in this Paragraph 4.
Each participating subsidiary in each plan has reserved the right to end its
participation in these plans and to discontinue
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providing any and all such benefits. If any of the plans should be terminated or
changed, to the extent that such action may apply to Xx. Xxxxxx, it is subject
to the terms and conditions of the specific plan and applicable law; provided,
however, the Company, SBC and their respective subsidiaries agree not to amend
any plan in a manner that causes such amendment to have an adverse impact solely
on Xx. Xxxxxx and no other plan participant. This means, for example, that Xx.
Xxxxxx will not acquire a lifetime right to any health care plan benefit or to
the continuation of any health care plan merely by reason of the fact that such
benefit or plan is in existence at the time of Xx. Xxxxxx'x termination of
employment or because of this Agreement and the Release and Waiver contained
herein. Thus, Xx. Xxxxxx'x rights/entitlements to any benefit under any of the
plans referred to in this Paragraph are no different as a result of entering
into this Agreement and the Release and Waiver contained herein than they would
have been in the absence of this Agreement and the Release and Waiver contained
herein.
5. Xx. Xxxxxx and Xx. Xxxxxx'x spouse, estate and/or designated
beneficiaries shall have no rights, claims or interests in any assets of
Company, SBC, BellSouth or any subsidiaries thereof; nor, except for any
benefits paid pursuant to any employee benefit plan qualified under Section
401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), shall any
such assets be required to be held under any trust for the benefit of Xx.
Xxxxxx, Xx. Xxxxxx'x spouse, estate and/or designated beneficiaries or held in
any way as collateral security for the fulfilling of the obligations of Company,
SBC, BellSouth or any of their subsidiaries under this Agreement and the Release
and Waiver contained herein. Any and all of the assets of Company, SBC,
BellSouth and/or any of their respective subsidiaries shall be, and remain, the
general, unpledged, unrestricted assets of Company, SBC, BellSouth and/or their
respective subsidiaries. Company's, BellSouth's and SBC's obligations under this
Agreement shall be merely that of an unfunded and unsecured promise to pay
money.
If the Company establishes rabbi trusts ("Trusts") for the purpose of
providing for the payment of benefits under the SRIP, the assets of such Trusts
would be subject to the claims of the Company's creditors under certain
circumstances as set forth in the Trust documents. Xx. Xxxxxx'x Equivalent SRIP
benefits hereunder shall be included in such Trusts, if any, to the same extent
as are the benefits of regular SRIP participants; provided, however, for
purposes of computing Xx. Xxxxxx'x vested benefits for purposes of determining
the Trust funding level, if any, applicable for Xx. Xxxxxx'x Equivalent SRIP
benefits, the security afforded Xx. Xxxxxx thereby shall be no different as a
result of entering into this Agreement and the Release and Waiver contained
herein than they would have been had Xx. Xxxxxx continued in employment in the
absence of this Agreement and the Release and Waiver contained herein. To the
extent any benefits provided hereunder are actually paid from such Trust, if
any, the Company shall have no further obligation with respect thereto, but to
the extent not so paid, such benefits shall remain the obligation of, and shall
be paid by the Company. Notwithstanding any provisions herein, it is hereby
specifically agreed that Xx. Xxxxxx shall be recognized as a participant of the
SRIP for purposes of determining the coverage of the Trust, if any, for the
SRIP.
6. Notwithstanding any other provision of this Agreement, Xx. Xxxxxx
agrees that, without the written consent of the Company and while employed by
the Company or within two (2) years after termination of such employment, he
will not engage in competition with SBC,
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BellSouth or the Company or with any business with which SBC, BellSouth, the
Company or any subsidiary thereof has a substantial interest (collectively
referred to herein as "Employer business"), and that he will cease and desist
from engaging in said competitive activity within 120 days following receipt of
written notice from SBC, BellSouth or the Company to Xx. Xxxxxx demanding that
Xx. Xxxxxx cease and desist from engaging in said competitive activity. In
addition to any other remedies that may be available to the Company, SBC,
BellSouth or their respective subsidiaries, if Xx. Xxxxxx breaches the
provisions of this Paragraph 6, he shall return, and the Company, SBC, BellSouth
and their respective subsidiaries shall be entitled to collect, the
consideration that they paid or provided under Paragraph 2 of this Agreement.
For purposes of this Agreement and the Release and Waiver contained herein,
engaging in competition with any Employer business shall mean engaging by Xx.
Xxxxxx in any business or activity in the same geographical market where the
same or substantially similar business or activity is being carried on as an
Employer business on the date of this Agreement. Such term shall not include
owning a nonsubstantial publicly traded interest as a shareholder in a business
that competes with an Employer business. However, it is hereby specifically
agreed that engaging in competition with an Employer business shall include
representing or providing consulting services to, or being an employee of, any
person or entity that is engaged in competition with any Employer business and
Xx. Xxxxxx hereby specifically agrees not to engage in any such conduct. Xx.
Xxxxxx also specifically agrees that a breach of this provision would result if,
within the time period and without the written consent specified, Xx. Xxxxxx
either engages directly in competitive activity or in any capacity in any
location becomes employed by, associated with, or renders service to any
company, or parent or affiliate thereof, or any subsidiary of any of them, if
any of them is engaged in competition with an Employer business, regardless of
the position or duties Xx. Xxxxxx takes and regardless of whether or not the
employing company, or the company that Xx. Xxxxxx becomes associated with or
renders service to, is itself engaged in direct competition with an Employer
business. Xx. Xxxxxx further acknowledges that engaging in competition with an
Employer business in violation of this Paragraph 6 will result in immediate and
irreparable harm to the Company, SBC, BellSouth and/or their respective
subsidiaries, for which there will be no adequate remedy at law, and that the
Company, SBC, BellSouth or such subsidiary thereof will be entitled to equitable
relief to restrain Xx. Xxxxxx from violating the terms of this Paragraph 6, in
addition to any other remedies available to the Company, SBC, BellSouth or such
subsidiary thereof.
Xx. Xxxxxx may submit a description of any proposed activity in writing to
the most senior human resources officer of the Company, and the Company shall
advise Xx. Xxxxxx in writing within ten business days whether such proposed
activity would constitute engaging in competition with an Employer business in
violation of this Paragraph 6.
7. Xx. Xxxxxx acknowledges that, as a result of Xx. Xxxxxx'x employment by
the Company, SBC or any of their respective subsidiaries Xx. Xxxxxx has and will
continue to have until Xx. Xxxxxx'x termination of employment, access to trade
secrets, intellectual property, proprietary information, and private non-public
information including technological, legal, financial, marketing, personnel and
other information (including, specifically, this Agreement and the Release and
Waiver contained herein) relating to litigation, the business and contemplated
business of the Company, SBC, BellSouth and their respective subsidiaries and
other matters,
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EXHIBITS
all of which is confidential and proprietary to the Company, SBC, BellSouth
and/or their respective subsidiaries ("Confidential Information"); and Xx.
Xxxxxx agrees that he will not, before or after his termination of employment,
divulge or in any way make available to others through public statements,
voluntary testimony, or otherwise, or make use of, alone or in concert with
others, any Confidential Information. The aforesaid obligations regarding
Confidential Information will not apply to (i) information that is now in or
hereafter enters the public domain without a breach of this Agreement and the
Release and Waiver contained herein, (ii) information required to be delivered
pursuant to a subpoena or similar legislative, judicial or administrative
requirement; provided, however, Xx. Xxxxxx will notify the Company, SBC and
BellSouth upon receipt of any such subpoena or similar request to the extent it
relates to such company's Confidential Information, and give the Company, SBC
and/or BellSouth, as the case may be, a reasonable opportunity to contest or
otherwise oppose the subpoena or similar request, (iii) information that is not
a trade secret three (3) years after Xx. Xxxxxx'x termination of employment with
the Company (but will include information that constitutes a trade secret under
applicable law), (iv) information filed with the Securities and Exchange
Commission ("SEC") that is not subject to a request for confidential treatment
made to the SEC or any other governmental agency or authority, (v) information
that becomes generally available to the public other than as a result of an
improper disclosure by Xx. Xxxxxx, (vi) information that becomes available to
Xx. Xxxxxx, directly or indirectly, from a source other than Company, SBC or
BellSouth (or their respective subsidiaries), provided that such source is not
known by Xx. Xxxxxx (or that he should not reasonably know) to be bound by a
confidentiality agreement with, or other obligation of secrecy to, Company, SBC,
BellSouth or their respective subsidiaries.
It is hereby agreed that Xx. Xxxxxx may represent himself as a former
employee of Company, SBC and their respective subsidiaries as factually
applicable; but otherwise Xx. Xxxxxx agrees that Xx. Xxxxxx will not make, nor
cause to be made any public statements, disclosures or publications which relate
in any way, directly or indirectly to Xx. Xxxxxx'x cessation of employment with
the Company, SBC and/or their respective subsidiaries without prior written
approval by the Company and SBC. Xx. Xxxxxx also agrees that Xx. Xxxxxx will not
make, nor cause to be made any public statements, disclosures or publications
which portray unfavorably, reflect adversely on, or are derogatory or inimical
to the best interests of, the Company, SBC, BellSouth, their subsidiaries,
directors, officers, employees and agents, past, present or future. Any
inquiries regarding Xx. Xxxxxx'x termination of employment of which the most
senior human resources officer of the Company or SBC have actual knowledge prior
to a response being given, other than ministerial inquiries regarding Xx.
Xxxxxx'x term of employment and other ministerial employment verification
inquiries, shall be addressed solely by the Company's or SBC's most senior human
resources officer.
8. Xx. Xxxxxx agrees that during the two (2) year period immediately after
termination of Xx. Xxxxxx'x employment with Company, Xx. Xxxxxx will not,
without the Company's consent, exclusively target for solicitation groups of
customers of Company, SBC, BellSouth or any of their respective subsidiaries on
behalf of Xx. Xxxxxx or any other person or entity or solicit any individual
that is, at that time, employed by the Company, SBC, BellSouth or any subsidiary
thereof to seek or accept employment with any other person or entity, or
disclose confidential information about such active employee to any prospective
employer or employer. Xx. Xxxxxx
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acknowledges that even an unsuccessful solicitation of such an active employee
will negatively impact the morale, commitment and performance of the employee in
question. Xx. Xxxxxx further acknowledges that any solicitation of either a
customer or an active employee of Company, SBC, BellSouth or any subsidiary
thereof in violation of the provisions of this Paragraph 8 will result in
immediate and irreparable harm to the Company, SBC, BellSouth and/or their
respective subsidiaries, for which there will be no adequate remedy at law, and
that the Company, SBC, BellSouth or such subsidiary thereof will be entitled to
equitable relief to restrain Xx. Xxxxxx from violating the terms of this
Paragraph 8, in addition to any other remedies available to the Company, SBC,
BellSouth or such subsidiary thereof. In any action brought by the Company, SBC,
BellSouth or any subsidiary thereof to enforce the provisions of this Paragraph
8, the prevailing party shall be entitled to recover costs, including, but not
limited to, reasonable and actual attorneys' fees.
9. Xx. Xxxxxx'x communications benefit described in Paragraph 2 shall
terminate, Xx. Xxxxxx'x right to reimbursement of COBRA premiums described in
Paragraph 2 shall terminate and Xx. Xxxxxx shall return to Company any
consideration received pursuant to Paragraph 2 of this Agreement and the Release
and Waiver contained herein for any breach by Xx. Xxxxxx of the provisions of
Paragraph 6 hereof, or of Paragraph 7 (except to the extent disclosure of any
Confidential Information is specifically required by law or otherwise permitted
by the terms of this Agreement) or of Paragraph 8 hereof, or of the Release and
Waiver contained herein.
10. It is hereby specifically agreed that the terms of this Agreement and
the Release and Waiver contained herein shall be kept strictly confidential and
that neither party to this Agreement and the Release and Waiver contained herein
shall, except as necessary for performance of the terms hereof or as
specifically required by law (e.g., as may be required under rules applicable to
SEC or other federal, state or local governmental agency disclosure
requirements), disclose the existence of this Agreement and the Release and
Waiver contained herein or any of its terms to third persons without the express
consent of the other party; provided, however, Xx. Xxxxxx may disclose the
existence of this Agreement and the Release and Waiver contained herein or any
of its terms to any member of Xx. Xxxxxx'x immediate family, Xx. Xxxxxx'x
financial advisor, and/or Xx. Xxxxxx'x attorney who agree to be bound by the
non-disclosure provisions of this Paragraph. Xx. Xxxxxx hereby specifically
agrees to secure from those persons to whom Xx. Xxxxxx makes disclosure their
agreement to be bound by the non-disclosure provisions of this Paragraph.
11. Xx. Xxxxxx declares that Xx. Xxxxxx'x decision to execute this
Agreement and the Release and Waiver contained herein has not been influenced by
any declarations or representations by Company, SBC, BellSouth or any subsidiary
thereof other than the contractual agreements and consideration expressly stated
herein.
The Company has expressly advised Xx. Xxxxxx to seek personal legal advice
prior to executing this Agreement and the Release and Waiver contained herein
and Xx. Xxxxxx, by Xx. Xxxxxx'x signature below, hereby expressly acknowledges
that Xx. Xxxxxx was given at least twenty one (21) days in which to seek such
advice and decide whether or not to enter into this Agreement and the Release
and Waiver contained herein. The parties agree that any changes to this
Agreement or to the Release and Waiver contained herein made after the initial
draft of
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EXHIBITS
this Agreement and Release and Waiver of Claims is presented to Xx. Xxxxxx,
whether material or immaterial, do not restart the running of said twenty-one
(21) day period.
Xx. Xxxxxx may revoke this Agreement and the Release and Waiver contained
herein within seven (7) days of Xx. Xxxxxx'x execution of the Release and Waiver
contained herein by giving notice, in writing, by certified mail, return receipt
requested to the Company at the address specified below. Proof of such mailing
within said seven (7) day period shall suffice to establish revocation pursuant
to this Paragraph. In the event of any such revocation, this entire Agreement
and the Release and Waiver contained herein shall be null and void, and
unenforceable by either party.
12. Xx. Xxxxxx agrees that for any breach or threatened breach of any of
the provisions of this Agreement and the Release and Waiver contained herein by
Xx. Xxxxxx, the Company shall have no adequate legal remedy, and in addition to
any other remedies available, a restraining order and/or an injunction may be
issued against Xx. Xxxxxx to prevent or restrain any such breach, in addition to
any other rights the Company may have.
13. Any notice required hereunder to be given by either party will be in
writing and, except as provided in Paragraph 11 of this Agreement, will be
deemed effectively given upon personal delivery to the party to be notified, or
five (5) days after deposit with the United States Post Office by certified
mail, postage prepaid, to the other party at the address set forth below, or to
such other address as either party may from time to time designate by ten (10)
days advance written notice pursuant to this Paragraph.
14. The Company is offering the Equivalent SRIP benefit described in
Paragraph 3 of this Agreement to Xx. Xxxxxx with the attendant rights and
obligations provided by the Employee Retirement Income Security Act of 1974 as
amended ("ERISA"), and the provisions of this Agreement relating to Xx. Xxxxxx'x
Equivalent SRIP will be considered an employee benefit plan under Section 3(3)
of ERISA. The validity, interpretation, construction and performance of the
provisions of this Agreement relating to Xx. Xxxxxx'x Equivalent SRIP shall be
governed by ERISA and to the extent not preempted by ERISA, by the laws of the
State of Texas excluding any conflicts or choice of law rule or principle that
might otherwise refer construction or interpretation of this Agreement and the
Release and Waiver contained herein to the substantive law of another
jurisdiction. The validity, interpretation, construction and performance of the
other provisions of this Agreement and the Release and Waiver contained herein
shall be governed by the laws of the State of Texas excluding any conflicts or
choice of law rule or principle that might otherwise refer construction or
interpretation of this Agreement and the Release and Waiver contained herein to
the substantive law of another jurisdiction. To achieve certainty regarding the
appropriate forum in which to prosecute and defend actions arising out of or
relating to this Agreement, including but not limited to the provisions
regarding Xx. Xxxxxx'x Equivalent SRIP, which the parties agree is a material
condition of entering into this Agreement, the parties agree and acknowledge
that (a) the sole and exclusive venue for any such action shall be an
appropriate federal or state court in Bexar County, Texas, and no other, (b) all
claims with respect to any such action shall be heard and determined exclusively
in such Bexar County, Texas court, and no other, (c) such Bexar County, Texas
court shall have sole and exclusive jurisdiction over the person of such parties
and over the subject matter of any dispute relating
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hereto, and (d) that the parties waive any and all objections and defenses to
bringing any such action before such Bexar County, Texas court, including but
not limited to those relating to lack of personal jurisdiction, improper venue
or forum non conveniens.
The Company shall be the named fiduciary with respect to the Equivalent
SRIP provisions of this Agreement. As such, the Company shall have the sole
discretion to interpret the provisions of this Agreement relating to Xx.
Xxxxxx'x Equivalent SRIP, determine Xx. Xxxxxx'x Equivalent SRIP benefits and
establish such rules and procedures, consistent with the provisions of this
Agreement relating to Xx. Xxxxxx'x Equivalent SRIP and ERISA, as it may deem
necessary or appropriate.
Equivalent SRIP Claims and Review Procedures.
(a) If Xx. Xxxxxx disputes the amount of Xx. Xxxxxx'x Equivalent SRIP
benefits hereunder, Xx. Xxxxxx may file a written claim for the
different amount with the Company's Vice President-Compensation.
In order to be valid, a claim relating to Xx. Xxxxxx'x Equivalent
SRIP benefits must be filed within 60 days after the receipt of the
disputed payment of benefits, or within 60 days after the
termination or death or other event on which the claim is based.
If such a claim is denied by the Vice President-Compensation, in whole or in
part, Xx. Xxxxxx will receive written notice of the denial within 60 days after
the date the claim was received. If more than 60 days is needed to make a
decision, then written notice of the reasons will be provided to Xx. Xxxxxx
within said 60 days, and a final written notice of the decision will be provided
within 180 days. A notice denying a claim will contain the specific reasons for
the denial, specific references to the provisions of this Agreement relating to
the Equivalent SRIP on which the denial is based, a description of any
information or material necessary to perfect the claim, an explanation of why
such material is necessary, and an explanation of the Review Procedure
(described below). If no decision is reported within the 60 or 180-day period
described in this Paragraph, the claim will be deemed to be denied.
(b) If Xx. Xxxxxx'x claim relating to Xx. Xxxxxx'x Equivalent SRIP
benefits is denied (or such claim is deemed to have been denied),
Xx. Xxxxxx has the right to request a review of the denial by
submitting a written request to the Administrative Committee
("Committee") appointed by the Company. The request for review must
be filed within 60 days after the denial (or deemed denial) of the
initial claim, and should be addressed as follows:
Administrative Committee
c/o Vice President-Compensation
000 Xxxx Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
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CINGULAR WIRELESS Exhibit 10.50
EXHIBITS
The Committee will provide a written decision on a request for
review within 60 days after its receipt of the request, unless
special circumstances require additional time. If additional time is
required, written notice of the reasons will be provided to Xx.
Xxxxxx within 60 days, and a final written decision will be provided
within 120 days. If the Committee affirms the denial (or deemed
denial) of such claim, the written notice will contain the specific
reasons for the decision and specific references to the provisions
of this Agreement relating to the Equivalent SRIP on which it is
based. If no decision is reported within the 60 or 120-day period
described in this Paragraph, the initial denial of such claim will
be deemed to have been affirmed by the Committee.
ERISA Rights
As a participant entitled to the Equivalent SRIP benefit under this
Agreement, which is a plan covered by ERISA, Xx. Xxxxxx is entitled
to certain rights and protections under ERISA. ERISA provides that
all participants in plans that are subject to ERISA are entitled to
examine, without charge, all documents that constitute part of this
Agreement as it relates to Xx. Xxxxxx'x Equivalent SRIP, including
any documents and reports that are filed with a federal government
agency. These documents are available for review at the offices of
the Company. If Xx. Xxxxxx is unable to examine these documents
there, Xx. Xxxxxx should write to:
Vice President-Compensation
000 Xxxx Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
specifying the documents Xx. Xxxxxx wants to examine and at which
work location Xx. Xxxxxx wants to examine them. Copies of the
requested documents will be made available for examination at the
specific work location within 10 days after the date the request is
received.
Xx. Xxxxxx may request copies of any documents relating to his
Equivalent SRIP benefit by writing to:
Vice President-Compensation
000 Xxxx Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
In addition to creating rights for plan participants, ERISA imposes
duties upon the people who are responsible for the operation of
employee benefit plans. The people who operate a plan, called
"fiduciaries" of the plan, have a duty to do so prudently and in the
interest of plan participants. No one may fire Xx. Xxxxxx or
otherwise discriminate against Xx. Xxxxxx in any way to prevent Xx.
Xxxxxx from obtaining a benefit or exercising Xx. Xxxxxx'x rights
under ERISA.
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CINGULAR WIRELESS Exhibit 10.50
EXHIBITS
If a claim for Equivalent SRIP benefits under this Agreement is
denied, in whole or in part, Xx. Xxxxxx must receive a written
explanation of the reason for denial, and Xx. Xxxxxx has a right to
have Xx. Xxxxxx'x claim reviewed and reconsidered.
Under ERISA, there are steps Xx. Xxxxxx can take to enforce Xx.
Xxxxxx'x right to his Equivalent SRIP. For instance, if Xx. Xxxxxx
requests materials to which Xx. Xxxxxx is entitled pursuant to this
Agreement relating to his Equivalent SRIP benefit and does not
receive them within 30 days, Xx. Xxxxxx may file suit in a federal
court. In such a case, the court may require the Company to provide
the materials and pay Xx. Xxxxxx up to $110.00 a day until Xx.
Xxxxxx receives the materials, unless the materials were not sent
because of reasons beyond the control of the Company. If Xx. Xxxxxx
has a claim for Equivalent SRIP benefits that is denied or deemed
denied, in whole or in part, Xx. Xxxxxx may file suit in a state or
federal court. If Xx. Xxxxxx is discriminated against for asserting
Xx. Xxxxxx'x rights under ERISA, Xx. Xxxxxx may seek assistance from
the U.S. Department of Labor, or Xx. Xxxxxx may file suit in a
federal court. The court will decide who will pay court costs and
legal fees. If Xx. Xxxxxx is successful, the court may order the
Company to pay these costs and fees. If Xx. Xxxxxx loses, the court
may order Xx. Xxxxxx to pay the costs and fees, for example, if it
finds the claim is frivolous.
If Xx. Xxxxxx has any questions about this statement or about Xx.
Xxxxxx'x rights under ERISA, Xx. Xxxxxx should contact the nearest
Area Office of the Labor Management Services Administration, U.S.
Department of Labor.
15. The terms and conditions contained in this Agreement that by their
sense and context are intended to survive the termination or completion of
performance of obligations by either or both parties under this Agreement shall
so survive.
16. This Agreement and the Release and Waiver contained herein shall not
be modified or amended except pursuant to an instrument in writing executed and
delivered on behalf of each of the parties hereto.
17. Except as provided in Paragraph 4 regarding benefits that shall be
provided in accordance with and subject to the terms and conditions of benefit
plans as they apply to Xx. Xxxxxx, this Agreement and the Release and Waiver
contained herein constitute the entire agreement and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof. This Agreement and the Release and Wavier
contained herein may be signed in multiple counterparts, each, when taken
together, shall constitute a single agreement.
18. In the event any provision of this Agreement or the Release and Waiver
contained herein is held invalid, void, or unenforceable, the same shall not
affect in any respect whatsoever the validity of any other provision of this
Agreement or said Release and Waiver, except that should Xx. Xxxxxx assert in
any legal proceeding that any of the provisions of Paragraphs 6, 7, 8 or 9 of
this Agreement are invalid, void, or unenforceable as a matter of law, or should
Xx. Xxxxxx
12
CINGULAR WIRELESS Exhibit 10.50
EXHIBITS
assert in any legal proceeding that the Release and Waiver is invalid,
unenforceable or void as a matter of law, then this Agreement and the Release
and Waiver contained herein, at the Company's option, may be declared by the
Company null and void. If this Agreement and the Release and Waiver contained
herein are declared null and void by the Company pursuant to the provisions of
this Paragraph 18, Xx. Xxxxxx shall return to Company all consideration
previously received pursuant to Paragraph 2 of this Agreement and the Release
and Waiver contained herein less any of said consideration Xx. Xxxxxx would have
received in the absence of entering into this Agreement and the Release and
Waiver contained herein. This Paragraph 18 does not restrict Xx. Xxxxxx from
asserting (whether as a claim or a defense to a claim) that his actual or
proposed activities or conduct do not violate the terms of Paragraphs 6, 7, 8 or
9 or do not violate the terms of the Release and Waiver, and the Company shall
not be entitled to exercise its rights under this Paragraph 18 as a result of
any such assertion or as a result of a finding or ruling by a court in favor of
Xx. Xxxxxx that his conduct or activities do not violate the applicable
provisions of Paragraphs 6, 7, 8 or 9 or the Release and Waiver (even if said
court shall also rule in the absence of an assertion by Xx. Xxxxxx that any of
such provisions, or the Release and Waiver, are invalid, unenforceable or void
as a matter of law).
19. This Agreement and the Release and Waiver contained herein shall inure
to the benefit of and be binding upon, the Company, BellSouth, SBC and their
respective successors and assigns, and Xx. Xxxxxx and Xx. Xxxxxx'x beneficiaries
under the various employee benefit programs.
20. This Agreement and the Release and Waiver contained herein shall be
and hereby is declared to be null and void in the event that Xx. Xxxxxx does not
terminate his employment relationship with the Company at the close of business
on December 30, 2002. All payments and other consideration to be provided to Xx.
Xxxxxx by Company are contingent upon Xx. Xxxxxx'x termination of employment
actually becoming effective at the close of business on December 30, 2002, and
are further contingent upon Xx. Xxxxxx'x execution at the close of business on
December 30, 2002, of the Release and Waiver contained herein and not revoking
same and Xx. Xxxxxx'x execution of this Agreement on or before the close of
business on December 30, 2002, and not revoking same.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
13
CINGULAR WIRELESS Exhibit 10.50
EXHIBITS
/s/ Xxxxxxx Xxxxxx
_______________________________________
CINGULAR WIRELESS LLC
XXXXXXX XXXXXX
By: Cingular Wireless Corp., its Manager
Address:_______________________________
By: /s/ Xxxxxxxx Xxxxxxx
_______________________________________ _______________________________
Printed Name: Xxxxxxxx Xxxxxxx
______________________________ _______________________________
Its: Senior Vice President - Human Resources Date:
________________________________________ __________________________________
Address:____________________________________
____________________________________
____________________________________
Date: ______________________________________
BELLSOUTH CORPORATION SBC COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/Xxxxx X. Xxxxxxxx
__________________________________ __________________________________
Printed Name: Xxxxxxx X. Xxxxxxxxxx Printed Name: Xxxxx X. Xxxxxxxx
_________________________ _________________________
Its: Vice President - Human Resources Its: Senior Executive Vice President -
Human Resources & Communications
___________________________________ ___________________________________
Address:_______________________________ Address:_______________________________
_______________________________ _______________________________
_______________________________ _______________________________
Date: _________________________________ Date: _________________________________
CINGULAR WIRELESS Exhibit 10.50
EXHIBITS
RELEASE AND WAIVER
I, Xxxxxxx Xxxxxx, conditioned upon my receipt of the cash consideration
that is payable pursuant to Paragraph 2 of the Agreement within ten (10) days
after this Release and Waiver can no longer be revoked, hereby fully waive and
forever release and discharge Company, SBC, BellSouth and any and all other
subsidiaries of Company, SBC, BellSouth, their officers, directors, agents,
servants, employees, successors and assigns and any and all employee benefit
plans maintained by any of them and/or any and all fiduciaries of any such plan
from any and all common law and/or statutory claims, causes of action or suits
of any kind whatsoever arising from or in connection with my past employment by
Company, SBC, and their respective subsidiaries and/or my separation therefrom,
including but not limited to claims, actions, causes of action or suits of any
kind allegedly arising under the Employee Retirement Income Security Act
(ERISA), as amended, 29 USC Sections 1001 et seq.; the Rehabilitation Act of
1973, as amended, 29 USC Sections 701 et seq.; the Civil Rights Acts of 1866 and
1870, as amended, 42 USC Sections 1981, 1982 and 1988; the Civil Rights Act of
1871, as amended, 42 USC Sections 1983 and 1985; the Civil Rights Act of 1964,
as amended, 42 USC Section 2000d et seq.; the Americans With Disabilities Act,
as amended, 42 USC Sections 12101 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 USC Sections 621 et seq., known
and unknown. In addition, I, Xxxxxxx Xxxxxx, agree not to file any lawsuits or
other claims seeking monetary damage or other relief in any state or federal
court or with any administrative agency against any of the aforementioned
parties in connection with or relating to any of the aforementioned matters.
Provided, however, by executing this Release and Waiver, I, Xxxxxxx Xxxxxx do
not waive rights or claims that I have under the Agreement or that may arise
after the date of execution of the Agreement and this Release and Wavier.
Provided further, however, this Release and Waiver shall not affect my right to
receive or enforce through litigation, any indemnification rights to which I am
entitled as a result of my past employment by the Company, SBC, and their
respective subsidiaries. And, provided further, except as agreed in the above
Agreement, this Release and Waiver shall not affect the ordinary distribution of
benefits/entitlements, if any, to which I am entitled upon termination of my
employment; it being understood by
1
CINGULAR WIRELESS Exhibit 10.50
EXHIBITS
me that said benefits/entitlements, if any, will be subject to and provided in
accordance with the terms and conditions of their respective governing plan and
this Agreement.
/s/ Xxxxxxx Xxxxxx
------------------
Xxxxxxx Xxxxxx
Dated: upon close of business on December 30, 2002
2
CINGULAR WIRELESS Exhibit 10.50
EXHIBITS
Attachment A
Page 1 of 1
Cingular Wireless, LLC
Supplemental Retirement Income Plan
Equivalent SRIP Benefit
Name: Xxxxxxx Xxxxxx Pension Effective Date: 12/31/02
SSN: ###-##-#### Birthdate: 08/05/53
Net Credited Service Date: 05/22/87
Equivalent SRIP shall be determined as follows:
Years of Service: 15 years 8 mos.
Service (+ or -) 30 years: 14 years 4 mos.
Standard Retirement Percent: 60%
(+ or -) Service Factor: 1.43%
Revised Retirement Percent: 39.51%
Total Salary + Short Term (Highest 36 Months): $3,089,832
Final Average Earnings (Highest 36 Months): $1,029,944
Revised Retirement Percent: 39.51%
Target Retirement Benefit: $ 406,931
Qualified Annual Pension*: ($22,041)
Age Discount: ($246,329)
Annual Equivalent SRIP Benefit: $ 138,560
Monthly Equivalent SRIP Benefit
With 10 Year Certain Benefit: $ 11,547
With Joint & 50% Survivor Benefit: $ 11,039
With Joint & 100% Survivor Benefit: $ 10,415
The above calculation of Monthly Equivalent SRIP Benefit has been determined
without regard to any payment for 2002 under the Cingular Short Term Incentive
Plan. If an award is paid in 2003 under the Cingular Short Term Incentive Plan
for the 2002 plan year, the calculation will be adjusted utilizing Xx. Xxxxxx'x
actual 2002 Award. The above Monthly Equivalent SRIP will be paid commencing
December 31, 2002. An adjustment, if any, shall be effected approximately April
1, 2003 and a true-up payment, if any, will be made at such time. Thereafter,
the actual Monthly Equivalent SRIP Benefit shall be paid.
3
