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Exhibit
10-s
Transition
Agreement by and between BellSouth Corporation
and
Rafael
de la Vega dated December 29, 2003
TRANSITION
AGREEMENT
THIS
AGREEMENT is made and entered into this 29 day of December,
2003, by and between BellSouth Corporation, a Georgia
corporation ("Company"), and Rafael de la Vega ("Executive")
(each, a "Party" and, collectively, the
"Parties"):
REASONS
FOR THIS AGREEMENT. Executive has been employed by Company and
its Affiliated Companies since 1974. During his tenure,
Executive has served in a variety of senior capacities and
currently serves as Company's President - Latin America
Operations with overall responsibility for Company's
operations in Argentina, Uruguay, Colombia, Venezuela, Chile,
Peru, Ecuador, Panama, Nicaragua and Guatemala.
Executive's
previous assignments include having served as Company's
President of Broadband and Internet Services with overall
responsibility for the deployment, marketing and operations of
broadband services, internet services and data support. Prior
to that assignment, Executive was responsible for BellSouth
Telecommunications, Inc.'s network operations in selected
states.
Company
and SBC Communications Inc. combined their respective domestic
mobile wireless voice and data services businesses in 2000
into the newly-formed entities Cingular Wireless LLC and
Cingular Wireless Management Corp. (together with their
subsidiary companies, collectively referred to herein as
"Cingular"). Company now desires to have Executive
join Cingular as its Chief Operating Officer, a move that will
require termination of Executive's employment with Company.
Through this Agreement, Company desires, in part, to provide
certain transition benefits and severance protections to
Executive. Executive has agreed to accept this assignment to
Cingular and now intends to separate from employment with
Company on December 30, 2003, and thereafter to join
Cingular.
Executive
acknowledges that Company and Affiliated Companies have
disclosed or made available and in the future will disclose
and make available Confidential Information to Executive,
which could be used by Executive to Company's or Affiliated
Companies' detriment. Executive further acknowledges that the
covenant not to compete and other restrictive covenants in
this Agreement are fair and reasonable, that enforcement of
the provisions of this Agreement will not cause him undue
hardship, and that the provisions of this Agreement are
reasonably necessary and commensurate with the need to protect
Company and Affiliated Companies and their business interests
and property from irreparable harm.
1. RESIGNATION
FROM BELLSOUTH. Executive separates and resigns from
employment with Company and any position Executive holds with
any Affiliated Company effective December 30,
2003.
2. BELLSOUTH
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN.
(a) Executive's
transition to Cingular shall not be deemed to trigger a
termination of employment with Company for purposes of the
BellSouth Corporation Supplemental Executive Retirement Plan
("SERP"). Furthermore, Executive shall not be
deemed to have terminated employment for purposes of SERP
until such time as Executive's employment with Cingular
terminates (or, if Executive leaves Cingular to accept
employment without a break in service with another
Participating Company, Affiliate or Interchange Company (as
such terms are defined in SERP), Executive's employment shall
not be deemed to have terminated for purposes of SERP before
the earliest date on which Executive is no longer employed by
any such entity).
(b) Executive
shall continue to participate in SERP for purposes of all
benefits provided by SERP and to accrue benefits under SERP
for his full period of service with Cingular as if he remained
employed by Company. Company shall calculate Executive's SERP
benefits by reference to his combined period of service
otherwise recognized under SERP plus his period of Cingular
service; by reference to compensation paid to Executive by
Cingular with respect to his period of service at Cingular;
and, to the extent applicable, by reference to compensation
paid to him by Company with respect to his period of service
with Company and other Affiliated Companies. In addition to
offsets provided in SERP, Executive's benefits under SERP
shall also be reduced by any benefits payable to him under any
one or more tax-qualified or non-qualified defined benefit
pension plans, excess plans, make-up plans or supplemental
executive retirement plans at Cingular. In determining
Executive's SERP benefits accrued while at Cingular, Company
shall make such additional adjustments in the administration
of SERP and the calculation of Executive's benefits thereunder
as shall be necessary and appropriate to take into account
Cingular's compensation and employment practices.
3. TERMINATION
ALLOWANCE.
(a) In
the event Executive's employment with Cingular is terminated
under circumstances described in Section 3(b) below, Company
shall pay to Executive (or, in the event of Executive's death,
to his estate) a termination allowance. The termination
allowance shall be an amount equal to the sum of (i) two
hundred percent (200%) of Executive's Base Salary in effect on
the date of Executive's termination of employment, plus (ii)
two hundred percent (200%) of the standard award amount
applicable to Executive under his employer's short term bonus
plan for the year in which his date of termination occurs,
less all applicable withholdings, payable in a single lump sum
payment. Payment of the termination allowance shall be made as
soon as practicable following Executive's termination of
employment under circumstances entitling him to such payment,
and satisfaction of all conditions described in this Agreement
on Executive's entitlement to such payment. For purposes of
this Agreement, "Base Salary" shall refer to the gross annual
base salary payable to Executive including (A) the amounts of
any before-tax contributions made by Executive from such
salary to any tax-qualified cash or deferred arrangement
sponsored by his employer, and (B) the amount of any other
deferrals of such salary under any nonqualified deferred
compensation plan(s) maintained by his employer.
(b) Executive's
employment shall be deemed to have been terminated under
circumstances described in this Section 3(b) only
if:
(i) (A)
Executive's employment is terminated either by Cingular other
than for Cause, or by Executive for Good Reason; (B) Executive
shall within thirty (30) days following such termination of
employment have notified Company of his desire to return to
Company, and within thirty (30) days following such
notification Company shall have failed to offer to Executive
employment with Company or a subsidiary or affiliate of
Company in a "comparable" position (as defined below); and (C)
Executive executes a supplemental release, substantially in
the form of the release agreement attached to this Agreement
as Exhibit "A" (the "Release Agreement"), which is
incorporated herein by this reference;
(ii) Executive's
employment is terminated by reason of Executive's Disability,
and Executive executes a Release Agreement; or
(iii) Executive's
employment is terminated by reason of Executive's
death.
For
purposes of clause (i) above, a "comparable" position shall
mean a position (1) providing Base Salary and a standard or
target short term bonus no less than those provided to
Executive immediately prior to his termination of employment
with Cingular (and disregarding any previous diminution in
such amounts which did or would have constituted Good Reason
under this Agreement); (2) reporting to Company's Chief
Executive Officer; (3) providing types and amounts of other
compensation and benefits comparable to those provided to
other similarly situated Company officers; and (4) not
requiring relocation outside the Atlanta, Georgia,
metropolitan area.
4. DISCHARGE
AND WAIVER. Executive fully releases and forever discharges
Company and Affiliated Companies, and any employee, officer,
director, representative, agent, successor or assign of
Company and Affiliated Companies (both in their personal and
official capacities), and all persons acting by, through and
under or in concert with any of them, from any and all claims,
demands, causes of action, remedies, obligations, costs and
expenses of whatever nature, whether under the common law,
state law, federal law (including but not limited to the Age
Discrimination in Employment Act of 1967) or otherwise,
through the date of this Agreement, including those arising
from or in connection with the terms and conditions of
employment with Company (and Affiliated Companies). This
paragraph is not intended to and shall not affect benefits to
which Executive may be entitled under any pension, savings,
health, welfare, or other benefit plan in which Executive is a
participant.
5. COVENANT
NOT TO SUE. Executive covenants and agrees not to make or file
any claim, demand or cause of action or seek any remedy of
whatever nature, whether under the common law, state law,
federal law or otherwise, arising from or in connection with
the matters discharged and waived in Section 4, above.
Notwithstanding the foregoing, in the event Executive files a
charge or lawsuit under the Age Discrimination in Employment
Act of 1967 (ADEA), and thereby challenges the validity of the
release described in Section 4, such charge or lawsuit will
not be considered a breach of this Section 5.
6. CONFIDENTIAL
INFORMATION. Executive agrees to protect Confidential
Information from misuse or unauthorized disclosure. In
addition to complying with all applicable laws governing trade
secret and confidential information disclosure, Executive will
not (i) use, except in connection with work for Company or
Affiliated Companies, or threaten to use, or (ii) disclose,
communicate or give others access to (orally, in writing,
electronically or digitally) or threaten to disclose,
communicate or give other access to any Confidential
Information. For purposes of this Agreement, "Confidential
Information" shall mean information, whether generated
internally or externally, whether in written, oral, digital,
electronic or any other form or format, relating to Company's
or Affiliated Companies' businesses that derives economic
value, actual or potential, from not being generally known to
other Persons and is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy or
confidentiality, including, but not limited to, studies and
analyses, technical or nontechnical data, programs, patterns,
compilations, devices, methods, models (including cost and /or
pricing models and operating models), techniques, drawings,
processes, employee compensation data, and financial data
(including marketing information and strategies and personnel
data). For purposes of this Agreement, Confidential
Information does not include information that is not a trade
secret three (3) years after termination of Executive's
employment with Company, but shall continue to include trade
secrets as long as information remains a trade secret under
applicable law. Executive acknowledges that any use of,
reliance upon, disclosure or other misappropriation of
Confidential Information inconsistent with the terms of this
Agreement (including without limitation acceptance by
Executive of a position in which the inevitability of such
use, reliance, disclosure or misappropriation is reasonably
anticipated) would result in material and irreparable damage
and injury to Company or Affiliated Companies.
7. LIMITATION
ON COMPETITION. In consideration of the additional payments,
benefits and other rights that are being provided to Executive
under this Agreement, during the one (1) year period following
the Effective Date, Executive agrees not to provide any
"Services" (as defined in the third paragraph of this Section
7) to any Person that competes directly with Company or any
Affiliated Companies, whether Executive provides the Services
as an employee, consultant, independent contractor, advisor or
director. After the termination of Executive's employment, the
foregoing covenant shall restrict
Executive's
actions only with respect to competition in the
Territory.
For
purposes of this Agreement, the term "Territory" shall mean
the geographical territory consisting of (i) those territories
in the countries of Argentina, Uruguay, Colombia, Venezuela,
Chile, Peru, Ecuador, Panama, Nicaragua and Guatemala
described in Exhibit "B" attached hereto and incorporated by
reference herein and (ii) those counties and parishes in the
states of Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee
listed on
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