Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made on the 21st day of January, 1997, by and
between Sprint Spectrum L.P. ("Employer") and Xxxxxxx X. Xxxxxx ("Executive").
WITNESSETH:
WHEREAS, Employer and its affiliates are engaged in the telecommunications
business;
WHEREAS, Executive has expertise, experience and capability in the business
of employer and the telecommunications business in general;
WHEREAS, Employer desires to enter into this Agreement to provide severance
and other benefits for Executive and obtain Executive's agreements regarding
confidentiality and post-employment restrictive covenants for Employer; and
WHEREAS, Executive is willing to provide such agreements to Employer.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which consideration are mutually acknowledged by the parties, it
is hereby agreed as follows:
1. RECITALS
The recitals set forth above constitute an integral part of this
Agreement, evidencing the intent of the parties in executing this Agreement, and
describing the circumstances surrounding its execution. Those recitals are made
a part of the covenants of this Agreement, and this Agreement shall be construed
in light thereof.
2. DUTIES AND RESPONSIBILITIES
The position is Chief Marketing Officer and reports to the Chief
Executive Officer, Sprint PCS. The duties and responsibilities of Executive
shall be of an executive nature as shall be required by Employer in the conduct
of its business. Executive's powers and authority shall include such duties and
responsibilities as from time to time may be assigned to him. Executive
recognizes that during his employment under this Agreement, he owes an undivided
duty of loyalty to Employer, and agrees to devote his entire business time and
attention to the performance of his duties and responsibilities and to use his
best efforts to promote and develop the business of Employer.
3. EMPLOYMENT TERM
This Agreement shall become effective as of January 27, 1997, and
continue until Executive's employment is terminated by either party in
accordance with Sections 5, 6, 7 or 8 of this Agreement.
4. COMPENSATION AND BENEFITS
4.1. Executive shall be entitled to receive a base salary in the amount
of Three Hundred Thousand Dollars ($300,000.00) per year ("Base Salary"),
payable in accordance with Employer's normal payroll procedures in effect from
time to time. Employer may increase or decrease Executive's Base Salary from
time to time, subject to the provisions of this Agreement.
4.2. Executive shall be entitled to participate in such long-term and
short-term incentive compensation, life, health, medical, dental, disability,
pension, savings, and retirement plans and other similar executive compensation
and employee benefit plans which may be in effect from time to time and in which
other officers of Employer having comparable responsibilities are entitled to
participate. Executive's participation in such plans shall be in accordance with
the terms of those plans in effect from time to time. Nothing contained in this
subsection shall be construed to require Employer to establish, or shall
preclude Employer, in its absolute discretion, from changing or amending, in
whole or in part, or revoking, any executive compensation or employee benefit
plan.
4.3. Executive shall be reimbursed for reasonable expenses incurred on
behalf of Employer and accounted for in accordance with the policies and
procedures of Employer in effect from time to time.
4.4. Executive shall be entitled to paid hours in an amount equivalent
to that provided to employees with fifteen (15) years of service as recognized
by Employer's Time Pool Policy or similar practice in effect from time to time.
5. TERMINATION BY EMPLOYER; SPECIAL COMPENSATION
At any time, Employer may terminate Executive's employment for any
reason. If Executive's termination by Employer is other than pursuant to Section
6, Executive shall, subject to the other provisions of this Section 5, be
entitled to the following Special Compensation (as that term is defined in this
Section 5 in lieu of any benefits available under any and all Employer
separation plans or policies, except as noted in Section 17. If Executive is
terminated pursuant to this Section 5, Executive's obligations under Section 11,
12, 13 and 14 hereof shall continue.
For purposes of this Agreement, "Special Compensation" shall entitle
Executive:
5.1. to continue to receive for a period of eighteen (18) months from
the date of termination (the "Severance Period"), bi-weekly compensation at the
rate equal to the amount of his bi-weekly base salary in effect at the date of
termination of employment paid according to Employer's payroll practices;
5.2. to receive a bonus, based on actual performance results, up to the
target amount, under any short-term incentive plan maintained by Employer
throughout the Severance Period in which Executive participated prior to the
termination of his employment, provided that the amount, if any, payable under
such plan for the award period including the last day of the Severance Period
shall be prorated based upon the number of months of the Severance Period that
fall within the award period and the total number of months in such award
period;
5.3. to receive any vested award under any long-term incentive plan in
which Executive participated prior to the termination of his employment, based
on the Executive's last day worked, exclusive of any Severance Period,
determined in accordance with the terms of said Plan;
5.4. to continue to receive throughout the Severance Period any life,
health, medical, dental, and qualified or non-qualified retirement benefits
which the Executive was receiving or was entitled to receive at the time of
termination of his employment, except that any long-term disability and
short-term disability benefits cease on the last day worked; and
5.5. to receive outplacement counseling by a firm selected by Employer
to continue for the duration of the Severance Period or until Executive becomes
employed on a full-time basis, whichever is earlier.
Employer shall pay, or cause to be paid, the amounts payable under
paragraph (a) above in equal installments, bi-weekly or otherwise according to
Employer's existing pay practices, and the amount payable under paragraphs 5.2
and 5.3 in accordance with the terms of those plans, if any. All payments
pursuant to this Section shall be subject to applicable income tax, unemployment
insurance and social security withholdings and other deductions required by law.
In addition to the Special Compensation described above, Executive
shall also be entitled to pay for any Time Pool hours accrued by Executive in
the calendar year of termination but not taken at the time of termination.
In the event Executive becomes employed full-time during the Severance
Period, Executive's entitlement to continuation of the benefits described in
paragraph 5.4 shall immediately cease; however, Executive shall retain any
rights to continue medical insurance coverage (including dental) under the COBRA
continuation provisions of the group medical insurance plan by paying the
applicable premium therefore.
The payments and benefits provided for in this Section shall be in
addition to all other sums then payable and owing to Executive hereunder and,
except as expressly provided herein, shall not be subject to reduction for any
amounts received by Executive for employment or services provided after
termination of employment hereunder, and shall be in full settlement and
satisfaction of all of Executive's claims and demands.
In all events, Executive's right to receive severance and/or other
benefits pursuant to this Section shall cease immediately in the event (a)
Executive is re-employed by Employer, (b) Executive is employed by any person,
firm, corporation or other entity that has an ownership interest in Employer, or
any of their affiliates, (c) Executive breaches his Confidential Information
covenant (as defined in Section 11 hereof), or (d) Executive breaches Sections
12, 13 or 14 hereof. In all cases, Employer's rights under Section 15 shall
continue.
6. VOLUNTARY RESIGNATION BY EXECUTIVE; TERMINATION FOR CAUSE;
TOTAL DISABILITY
Upon termination of Executive's employment by Voluntary Resignation,
Termination for Cause (as those terms are defined in this Section 6, or Total
Disability, as that term is defined in Employer's Long-Term Disability Plan,
Executive shall have no right to compensation, severance pay or other benefits
described in this Agreement following the termination of his employment, but
Executive's obligations under Sections 11, 12, 13 and 14 hereof shall continue.
6.1. Voluntary Resignation by Executive
At any time, Executive has the right, by written notice to Employer, to
terminate his services hereunder ("Voluntary Resignation"), effective as of
thirty (30) days after such notice.
6.2. Termination for Cause by Employer
At any time, Employer has the right to terminate Executive's employment
for cause. Termination upon the occurrence of any of the following shall be
deemed termination for cause ("Termination for Cause"):
6.2.1. Conduct by the Executive which reflects adversely on the
Executive's honesty, trustworthiness or fitness as an Executive; or
6.2.2. Executive's willful engagement in conduct which is
demonstrably and materially injurious to the Employer.
Termination for failure to meet performance expectations, unless
willful, continuing and substantial, shall not be deemed a Termination for
Cause. For Termination for Cause, written notice of the termination of
Executive's employment by Employer shall be served upon Executive and shall be
effective as of the date of such service. Such notice given by Employer shall
specify the act or acts of Executive underlying such termination.
6.3. Total Disability
Upon the Total Disability of the Executive, as that term is defined in
Employer's Long-Term Disability Plan, Executive shall have no right to
compensation or severance pay described in this Agreement, but shall be entitled
to long-term disability and other such benefits afforded under Employer's
applicable policies and plans.
7. RESIGNATION FOLLOWING CONSTRUCTIVE DISCHARGE
If at any time, except in connection with a termination pursuant to
Section 5 or 6, Executive is Constructively Discharged (as that term is defined
in this Section 7), then Executive shall have the right, by written notice to
Employer within sixty (60) days of the event causing him to be Constructively
Discharged, to terminate his services hereunder, effective as of thirty (30)
days after such notice. Executive shall in such event be entitled to the
compensation and benefits as if such employment were terminated pursuant to
Section 5 of this Agreement. If Executive terminates his employment pursuant to
this Section 7, Executive's obligations under Sections 11, 12, 13 and 14 shall
continue.
For purposes of this Agreement, the Executive shall be "Constructively
Discharged" upon the occurrence of either of the following events:
7.1. Executive is removed from his position with Employer other than as
a result of Executive's appointment to positions of equal or superior scope and
responsibility; or
7.2. Executive's targeted total compensation is reduced by more than
ten percent (10%) (other than across-the-board reductions similarly affecting
all executives of Employer having comparable responsibilities).
8. EFFECT OF CHANGE IN CONTROL
In the event that within one (1) year of a Change in Control (as that
term is defined in this Section 8, Executive's employment is terminated:
8.1. by Employer other than pursuant to Section 6,
8.2. by Executive pursuant to Section 7 hereof,
8.3. by Executive if Executive is required to be based anywhere other
than his location at the time or the Kansas City metropolitan area, except for
required travel on business to an extent substantially consistent with
Executive's business travel obligations immediately prior to the Change in
Control, then Executive shall be entitled to the Special Compensation described
in Section 5 and shall be bound by Sections 11, 13 and 14, but shall not have
any continuing obligations under Section 12 except as otherwise required by
common law or statute.
For purposes of this Agreement, a "Change in Control" shall be deemed
to have occurred if any natural person, corporation, trust, partnership, limited
liability company or other entity (a "Person"), other than (i) a trustee or
other fiduciary holding securities under an employee benefit plan of Employer or
any of its affiliates, or (ii) the current partners of Employer or any Person
that, directly or indirectly, owns or controls, is owned or controlled by, or is
under common ownership of control with, the current partners of Employer, is or
becomes the owner, directly or indirectly, of fifty percent (50%) or more of the
outstanding partnership interests in Employer.
9. DISPUTE RESOLUTION
All disputes arising under this Agreement, other than those disputes
relating to Executive's alleged violations of Sections 11, 12, 13 and 14 herein,
shall be submitted to arbitration by the American Arbitration Association in
Kansas City, Missouri. Costs of arbitration shall be borne equally by the
parties. The decision of the arbitrators shall be final and binding on both
parties, and there shall be no appeal from any award rendered. Any award
rendered may be entered as a judgment in any court of competent jurisdiction. In
any judicial enforcement proceeding, the losing party shall reimburse the
prevailing party for its reasonable costs and attorneys' fees for enforcing its
rights under this Agreement, in addition to any damages or other relief granted.
This Section 9 does not apply to any action by Employer to enforce Sections 11,
12, 13 and 14 of this Agreement and does not in any way restrict Employer's
rights under Section 1 herein.
10. ENFORCEMENT
In the event Employer shall fail to pay any amounts due to Executive
under this Agreement as they come due, Employer agrees to pay interest on such
amounts at a rate of prime plus two percent (2%) per annum. Employer agrees that
Executive shall be entitled to recover all costs of successfully enforcing any
provision of this Agreement, including reasonable attorneys' fees and costs of
litigation.
11. CONFIDENTIAL INFORMATION
Executive acknowledges that during the course of his employment he will
learn or develop Confidential Information (as that term is defined in this
Section 11). Executive further acknowledges that unauthorized disclosure or use
of such Confidential Information, other than in discharge of Executive's duties
on behalf of Employer, will cause Employer irreparable harm.
For purposes of this Section, Confidential Information means trade
secrets (including but not limited to technical and non-technical data, a
formula, pattern, compilation, program, device, method, technique, drawing,
process) and other proprietary information concerning the products, processes or
services of Employer or its partners, and its or their affiliates, including but
not limited to, computer programs; unpatented inventions, discoveries or
improvements; marketing, manufacturing, or organizational research and
development; business plans; methods of operation; sales forecasts; personnel
information, including the identity of other employees of Employer, their
responsibilities, competence, abilities, and compensation; pricing and financial
information; current and prospective customer and supplier lists and information
on customers, suppliers or their employees; information concerning planned or
pending acquisitions or divestitures; and information concerning purchases of
major equipment or property, which information has not been made generally
available to the public.
Except as authorized in the course of his employment and in the pursuit
of the business of Employer, Executive shall not, during the course of his
employment, or at any time following termination of his employment for any
reason, directly or indirectly, disclose, publish, communicate or use on his
behalf or another's behalf, any Confidential Information of Employer.
Executive acknowledges that Employer operates and competes nationally,
and that Employer will be harmed by unauthorized disclosure or use of
Confidential Information regardless of where such disclosure or use occurs, and
that therefore this confidentiality agreement is not limited to any single state
or other jurisdiction.
12. NON-COMPETITION
Executive acknowledges that use or disclosure of Confidential
Information described in Section 11 is likely if Executive were to perform
telecommunications functions relating to wireless services on behalf of a
competitor of Employer. Therefore, Executive shall not, for eighteen (18) months
following termination of employment for any reason (the "Non-Compete Period"),
accept any position where Executive dedicates his time and efforts to managing,
controlling, participating in, investing in, acting as a consultant or advisor
to, rendering services for or otherwise assisting any person, firm, corporation
or other entity in the wireless business in competition with the wireless
business of Employer, anywhere in the United States of America; provided,
however, that the ownership of less than a five percent (5%) interest in the
securities of a corporation which are traded on a national securities exchange
or quoted on NASDAQ shall not be deemed to constitute a violation hereof.
Executive acknowledges that Employer operates and competes nationally,
and that therefore this non-competition agreement appropriately is not limited
to any single state or other jurisdiction.
13. INDUCEMENT OF OTHER EMPLOYEES
For an eighteen (18) month period following termination of employment
for any reason, Executive will not directly or indirectly solicit, induce or
encourage any employee or agent of Employer to terminate his relationship with
Employer.
14. RETURN OF EMPLOYER'S PROPERTY
All books, records, files, notes, reports, sketches, plans, published
memoranda or other documents, and any other tangible forms of information
(whether stored magnetically, electronically, or otherwise, including, but not
limited to, computer diskettes or compact disks), created, developed, generated
or held by Executive during employment, concerning or related to Employer's
business, and whether containing or relating to Confidential Information or not,
are the property of Employer and will be promptly delivered by Executive to
Employer upon termination of Executive's employment for any reason whatsoever.
During the course of employment, Executive shall not remove any of the above
property containing Confidential Information, or reproductions or copies
thereof, or any apparatus from Employer's premises without authorization.
15. REMEDIES
Executive acknowledges that the restraints and agreements herein
provided are fair and reasonable, that enforcement of the provisions of Sections
11, 12, 13 and 14 will not cause him undue hardship and that said provisions are
reasonably necessary and commensurate with the need to protect Employer and its
legitimate and proprietary business interests and property from irreparable
harm.
Executive acknowledges that failure to comply with the terms of this
Agreement will cause irreparable damage to Employer. Therefore, Executive agrees
that, in addition to any other remedies at law or in equity available to
Employer for Executive's breach or threatened breach of this Agreement, Employer
is entitled to specific performance or injunctive relief, without bond, against
Executive to prevent such damage or breach, and the existence of any claim or
cause of action Executive may have against Employer will not constitute a
defense thereto. Executive further agrees to pay reasonable attorneys' fees and
costs of litigation incurred by Employer in any proceeding relating to the
enforcement of the Agreement or to any alleged breach thereof in which Employer
shall prevail in whole or those reasonable fees and costs attributable to the
extent that Employer prevails in part.
In the event of a breach or a violation of any of the covenants and
provisions of this Agreement, the beginning of the Non-Compete Period (but not
of Executive's obligation thereunder), shall be tolled during the period of the
continuance of any actual breach or violation.
16. CONFIDENTIALITY AGREEMENT
As a specific condition to Executive's right to Special Compensation or
other benefits described herein, Executive agrees that he will not disclose or
discuss the existence of this Agreement, the Special Compensation provided
herein, or any other terms of the Agreement except: (1) to members of his
immediate family; (2) to his financial advisor or attorney but then only to the
extent necessary for them to assist him; (3) to a potential employer on a
strictly confidential basis and then only to the extent necessary for reasonable
disclosure in the course of serious negotiations for potential employment; or
(4) as required by law or to enforce legal rights.
17. ENTIRE UNDERSTANDING
This Agreement constitutes the entire understanding and agreement
between the parties relating to Executive's employment hereunder and supersedes
and cancels all prior written and oral understandings and agreements with
respect to such matters, except for the terms and provisions of the employee
benefit or other compensation plans (or any agreements or awards thereunder)
referred to in or contemplated by this Agreement.
18. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of
Executive's executors, administrators, legal representatives, heirs and legatees
and the successors and assigns of Employer.
19. PARTIAL INVALIDITY
The various provisions of this Agreement are intended to be severable
and to constitute independent and distinct binding obligations. Should any
provision of this Agreement be determined to be void and unenforceable, in whole
or in part, it shall not be deemed to affect or impair the validity of any other
provision or part thereof, and such provision or part thereof shall be deemed
modified to the extent required to permit enforcement. Without limiting the
generality of the foregoing, if the scope of any provision contained in this
Agreement is deemed by a court or arbitrator to be too broad to permit
enforcement to its full extent, but may be made enforceable by limitations
thereon, such provision shall be enforced to the maximum extent permitted by
law, and Executive hereby agrees that such scope may be judicially modified
accordingly.
20. STRICT CONSTRUCTION
The language used in this Agreement will be deemed to be the language
chosen by Employer and Executive to express their mutual intent and no rule of
strict construction shall be applied against any person.
21. WAIVER
The waiver of any party hereto of a breach of any provision of this
Agreement by any other party shall not operate or be construed as a waiver of
any subsequent breach.
22. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be determined to have been duly given to any party (a) upon
delivery to the address of such party specified below if delivered personally or
by courier; (b) upon dispatch if transmitted by telecopy or other means of
facsimile, provided a copy thereof is also sent by regular mail or courier; or
(c) within forty-eight (48) hours after deposit thereof in the U.S. mail,
postage prepaid, for delivery as certified mail, return receipt requested,
addressed, in any case to the party at the following addresses or telecopy
numbers:
If to Executive: Xxxxxxx X. Xxxxxx
xxxxxx
Kansas City, Missouri 64xxx
If to Employer: Sprint Spectrum L.P.
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
or other such addresses or telecopy number(s) as any party may designate by
written notice in the aforesaid manner.
23. GOVERNING LAW
This Agreement shall be governed by, and interpreted, construed and
enforced in accordance with, the laws of the State of Kansas.
24. GENDER
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and the
pronouns stated in either the masculine, the feminine or the neuter gender shall
include the masculine, feminine or neuter.
25. HEADINGS
The headings of the Sections of this Agreement are for reference
purposes only and do not define or limit and shall not be used to interpret or
construe the contents of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date above set forth.
EMPLOYER:
SPRINT SPECTRUM L.P.
By: __/s/ Xxxxxx X. Sukawaty_______
Authorized Officer
EXECUTIVE:
By: ____/s/ Xxxxxxx Levine_________
