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Delaware
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1-8610
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43-1301883
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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208 S. Akard St., Dallas, Texas
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75202
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(Address of Principal Executive Offices)
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(Zip Code)
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240-14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Exhibit No.
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Document
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10.1
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Agreement between Ralph de la Vega and AT&T Inc.
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AT&T INC.
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Date: December 16, 2016
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By:
/s/ Stacey Maris
Stacey Maris
Senior Vice President - Assistant General Counsel and Secretary
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1.
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Mr. de la Vega will retire from Company effective at the close of business on December 31, 2016, and Mr. de la Vega herewith resigns all officer and director positions that he may hold in AT&T and in any subsidiary of AT&T effective at the close of business on December 31, 2016.
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2.
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Mr. de la Vega shall execute this Agreement and the Waiver contained herein and Company shall (A) waive the provisions of AT&T Management Relocation Plan A that require repayment of relocation benefits in the event of the recipient's termination of employment within one (1) year of receipt, including Mr. de la Vega's agreement to repay such sums, (B) propose to the Human Resources Committee of the AT&T Board of Directors (the "Committee") that the AT&T 2011 Incentive Plan provisions requiring the automatic proration of Mr. de la Vega's 2014, 2015, and 2016 Performance Share Grants shall not apply and Mr. de la Vega shall be eligible for full distribution of such grants after the applicable three (3) year performance period, subject to adjustment based on achievement of the applicable performance goals, approval of the Committee and all other terms and conditions of the grant, and (C) relinquish ownership and permit Mr. de la Vega to retain possession of the Company provided iPad used by Mr. de la Vega immediately prior to his retirement, and the Company will provide monthly internet access service for such device during Mr. de la Vega's retirement under the terms of the Administrative Plan, subject to the prior removal of all Trade Secrets and Confidential Information from the device. Notwithstanding the foregoing, none of the consideration described in this Section 2 shall be made available to Mr. de la Vega (or it shall be subject to rescission) should Mr. de la Vega not timely sign, or should he revoke, the Wavier contained herein.
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3.
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The consideration described herein shall be in lieu of, and Mr. de la Vega hereby specifically waives any right to any and all other termination pay allowance resulting from his retirement.
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4.
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This Agreement and the Waiver contained herein do not abrogate any of the usual entitlements that Mr. de la Vega has or will have, first, while a regular employee and subsequently, upon his retirement, under any AT&T or AT&T subsidiary sponsored employee benefit plan, program or policy, all of which will be subject to and provided in accordance with the terms and conditions of the respective benefit plan, program, or policy as applicable to Mr. de la Vega and this Agreement. AT&T and its subsidiaries have reserved the right to end or amend any or all of the plans, programs, and policies that it sponsors. Each participating subsidiary, which includes Company, has reserved the right to end its participation in these plans, programs, and policies and to discontinue providing any and all such benefits. This means, for example, that Mr. de la Vega 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, plan, program, or policy is in existence at the
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5.
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At Company's request at any time during the eighteen (18) months immediately following his retirement, Mr. de la Vega will cooperate with Company, AT&T or any of their respective subsidiaries in any future claims or lawsuits involving any of them where Mr. de la Vega has knowledge of the underlying facts; provided, however, Mr. de la Vega shall not be required to and shall not provide such services for more than twenty percent (20%) of the average amount of time he provided bona fide services over the thirty-six (36) month period immediately preceding December 31, 2016. For the time Mr. de la Vega spends working on any claims or lawsuits at such request, Mr. de la Vega shall be reimbursed at the equivalent per hour base salary rate at which Mr. de la Vega was being compensated by Company immediately prior to his retirement; provided, however, that if Mr. de la Vega is a named party in any claim or lawsuit and Company, in its discretion, determines that Mr. de la Vega's interests are adverse to Company, AT&T or any of their respective subsidiaries, he will not be entitled to such compensation. Mr. de la Vega agrees not to voluntarily aid, assist, or cooperate with any claimants or plaintiffs or their attorneys or agents, whether individually or as part of a class, in any claims or lawsuits commenced in the future against Company, AT&T or any AT&T subsidiary; provided, however, that nothing in this Agreement shall prohibit Mr. de la Vega from exercising his right to file a charge of discrimination with, or that would limit his right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the Equal Employment Opportunity Commission ("EEOC"), a comparable state or local agency, or any other governmental agency charged with enforcing anti-discrimination laws; provided, further, however, nothing in this Agreement will be construed to prevent Mr. de la Vega from testifying at an administrative hearing, a deposition, or in court in response to a lawful subpoena in any litigation or proceedings involving Company, AT&T or any of their respective subsidiaries. Notwithstanding the foregoing, Mr. de la Vega acknowledges and agrees that the Waiver contained herein includes a waiver of his right, if any, to monetary recovery should any party, entity, administrative agency, or governmental agency (such as the EEOC, the National Labor Relations Board, or any state or local agencies) pursue any claims on Mr. de la Vega's behalf against the persons or entities covered by the Agreement and the Waiver contained herein, other than his right to any monetary recovery under the whistleblower provisions of federal or state law or regulation.
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6.
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Mr. de la Vega acknowledges that, as a result of his employment with Company and/or any AT&T subsidiaries, he has and had access to certain Trade Secrets and Confidential Information (as these terms are defined below) and the Company will continue to provide Mr. de la Vega access to such Trade Secrets and Confidential Information through his termination of employment so that he may continue performing his job responsibilities. Mr. de la Vega acknowledges that AT&T and its subsidiaries must protect its Trade Secrets and Confidential Information from disclosure or misappropriation, and Mr. de la Vega further acknowledges that the Trade Secrets and Confidential Information are unique and confidential and are the proprietary property of AT&T and its subsidiaries. Mr. de la Vega acknowledges that the Trade Secrets and Confidential Information derive independent, actual and potential commercial value from not being generally known, or readily ascertainable through independent development. Mr. de la Vega agrees to hold Trade Secrets or Confidential Information in trust and confidence and to not directly or indirectly disclose or transmit Trade Secrets or Confidential Information to any third party without prior written consent of AT&T; provided however, nothing in this Agreement shall prohibit Mr. de la Vega from reporting possible violations of federal law or regulation to any governmental agency or entity or making other disclosures that are protected under the whistleblower provisions of federal or state law or regulation. Mr. de la Vega further agrees not to use any such Trade Secrets or Confidential Information for his personal benefit or for the benefit of any third party. This restriction shall apply indefinitely as long as the document or information exists as a Trade Secret or Confidential Information.
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7.
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Mr. de la Vega agrees that he shall not, during the twenty-four (24) months immediately following his retirement, without obtaining the written consent of Company in advance, participate in activities that constitute Engaging in Competition with AT&T or Engaging in Conduct Disloyal to AT&T, as those terms are defined below.
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a.
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"Engaging in Competition with AT&T" means engaging in any business or activity in all or any portion of the same geographical market where the same or substantially
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b.
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"Engaging in Conduct Disloyal to AT&T" means (i) soliciting for employment or hire, whether as an employee or as an independent contractor, any person employed by AT&T or its subsidiaries during the one (1) year prior to Mr. de la Vega's retirement, whether or not acceptance of such position would constitute a breach of such person's contractual obligations to AT&T or its subsidiaries; (ii) soliciting, encouraging, or inducing any vendor or supplier with which Mr. de la Vega had business contact on behalf of any Employer Business during the two (2) years prior to Mr. de la Vega's retirement, to terminate, discontinue, renegotiate, reduce, or otherwise cease or modify its relationship with AT&T or any AT&T subsidiary; or (iii) soliciting, encouraging, or inducing any AT&T or AT&T subsidiary customer or active prospective customer, in each case, with respect to whom Mr. de la Vega had business contact, whether in person or by other media ("Customer"), on behalf of any Employer Business during the two (2) years prior to Mr. de la Vega's retirement, to terminate, discontinue, renegotiate, reduce, or otherwise cease or modify its relationship with any Employer Business, or to purchase competing goods or services from a business competing with any Employer Business, or accepting or servicing business from such Customer on behalf of himself or any other business.
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c.
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"Employer Business" shall mean AT&T, any subsidiary of AT&T, or any business in which AT&T or an AT&T subsidiary has a substantial ownership or joint venture interest.
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8.
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Mr. de la Vega acknowledges and agrees that Company would be unwilling to provide the consideration provided pursuant to this Agreement and the Waiver contained herein but for the confidentiality, non-solicitation, and non-compete conditions and covenants set forth in Sections 6 and 7, and that these conditions and covenants are a material inducement to AT&T's willingness to enter into this Agreement. Accordingly, Mr. de la Vega shall return to Company any consideration received pursuant to this Agreement and the Waiver contained herein, for any breach by Mr. de la Vega of the provisions of Section 6 or 7 hereof, or of the Waiver
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9.
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Mr. de la Vega declares that his decision to execute this Agreement and the Waiver contained herein has not been influenced by any declarations or representations by Company, AT&T, or any AT&T subsidiary, other than the contractual agreements and consideration expressly stated herein.
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10.
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Any notice required hereunder to be given by either party must be in writing and 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 addresses noted in the signature block of this Agreement.
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11.
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The parties agree that any conflicts relating to this Agreement and the Waiver contained herein, including choice of law and venue with respect to any such conflict, shall be determined as provided in that certain Management Arbitration Agreement to the extent agreed to by and between Mr. de la Vega and Company (the "Management Arbitration Agreement"). If the Management Arbitration Agreement is inapplicable, the validity, interpretation, construction and performance of this Agreement and the 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 Waiver contained herein to the substantive law of another jurisdiction, and to achieve certainty regarding the appropriate forum in which to prosecute and defend actions arising out of or relating to this Agreement, which the parties agree
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12.
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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.
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13.
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This Agreement and the 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.
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14.
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This Agreement and the Waiver contained herein, and, to the extent agreed by Mr. de la Vega and Company, the Management Arbitration Agreement, 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, except that neither this Agreement nor the Management Arbitration Agreement (to the extent applicable) shall be deemed to supersede or cancel any obligations applicable to Mr. de la Vega under any AT&T or AT&T subsidiary sponsored deferred compensation plan, equity award plan, fringe benefit program, or any other AT&T or AT&T subsidiary sponsored benefit plan as to which Mr. de la Vega is a participant immediately preceding his retirement.
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15.
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In the event any provision of this Agreement or the 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 Waiver, except that should said Waiver be held to be invalid as applicable to and as asserted by Mr. de la Vega with regard to any claim or dispute covered thereunder, or should any part of the provisions of Sections 6, 7, or 8 of this Agreement be held invalid, void, or unenforceable as applicable to and as asserted by Mr. de la Vega, this Agreement and the Waiver contained herein, at Company's option, may be declared by Company null and void. If this Agreement and the Waiver contained herein are declared null and void by Company pursuant to the provisions of this Section, Mr. de la Vega shall return to Company all consideration previously received pursuant to this Agreement and the Waiver contained herein.
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16.
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This Agreement and the Waiver contained herein shall inure to the benefit of and be binding upon, Company, its successors and assigns, and Mr. de la Vega and his beneficiaries, whether under the various employee benefit programs or otherwise.
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17.
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This Agreement and the Waiver contained herein shall be and hereby are declared to be null and void in the event that Mr. de la Vega does not retire from Company on or before the close of business on December 31, 2016. All payments and other consideration to be provided to Mr. de la Vega by Company are contingent upon Mr. de la Vega's retirement actually becoming effective on or before the close of business on December 31, 2016, and are further contingent upon Mr. de la Vega's execution of this Agreement no later than December 31, 2016 and the Waiver contained herein on December 31, 2016, and not revoking either this Agreement or the Waiver contained herein.
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