Exhibit 10(d)
April 9, 2003
Xx. Xxxxxx X. XxXxx
0000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Dear Xxx:
As we have discussed, I am appreciative of your willingness to provide
consulting services to the Company and I look forward to being able to call upon
you during the next year. This letter sets forth the terms and conditions on
which we have agreed that you will provide such consulting services. Unless
otherwise defined herein, capitalized terms will have the meanings accorded such
terms in the Separation Agreement dated as of April 9, 2003 among Sprint
Corporation, Sprint/United Management Company and you (the "Separation
Agreement").
1. You agree to provide consulting services to the Company as reasonably
requested by Sprint's Chief Executive Officer during the 12-month period
beginning on the Effective Date (the "Consulting Period").
2. In consideration of such agreement, during the Consulting Period the
Company shall pay to you a monthly consulting fee of $190,400, payable in
arrears and shall make available to you Office Support. You will perform such
consulting services as an independent contractor and shall be responsible for
paying all required withholdings and taxes in respect of such consulting fees.
The Company's obligations hereunder shall terminate in the event that
during the Consulting Period you breach any of the Restrictive Covenants or
engage in any Restricted Activity.
3. You agree to observe the Restrictive Covenants during the Consulting
Period and to use reasonable efforts to cause your associates and agents to
comply with confidentiality provisions consistent with those contained in
Section 4(a) of the Separation Agreement.
4. All disputes, claims or controversies arising under or in connection
with this Letter Agreement shall be resolved in the same manner as provided in
Section 7 or 11, as the case may be, of the Separation Agreement.
Please indicate your acceptance of the foregoing terms and conditions by
executing both copies of this Letter Agreement in the space indicated below and
return one copy to the undersigned, retaining the other copy for your records.
Agreed: /s/ Xxxxxx X. XxXxx
Xxxxxx X. XxXxx
Sprint Corporation
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
Sprint/United Management Company
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President - Law
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SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "Agreement"), dated as of April 9, 2003
(the "Effective Date"), by and among SPRINT CORPORATION, a Kansas corporation
("Sprint"), SPRINT/UNITED MANAGEMENT COMPANY, a Kansas corporation and
subsidiary of Sprint ("SUMC") (Sprint, SUMC and the subsidiaries of Sprint are
collectively referred to herein as the "Company"), and XXXXXX X. XxXXX (the
"Executive"). Certain capitalized terms used herein are defined in Section 8 of
this Agreement.
Recitals
WHEREAS, the Company and Executive have previously entered into an
Employment Agreement dated as of February 26, 2001 (the "Prior Agreement");
WHEREAS, Executive has been serving as the President and Chief Operating
Officer of Sprint and a member of its Board of Directors (the "Board");
WHEREAS, the Company and Executive have agreed as hereinafter set forth
with respect to Executive's resignation of employment with the Company and from
the Board;
WHEREAS, in furtherance of the foregoing, the Company and Executive have
determined that this Agreement shall supersede and replace the Prior Agreement
in all respects;
WHEREAS, the Company and Executive have agreed as set forth herein with
respect to his compensation in connection with his resignations;
WHEREAS, in consideration for the respective benefits to be received by the
parties under this Agreement, (i) Executive desires to release the Company from
certain current and potential liabilities, and (ii) the Company desires to
release Executive from certain current and potential liabilities, all as set
forth herein;
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, the
parties hereby agree as follows:
1. RESIGNATIONS.
Executive hereby resigns as an employee and officer of the Company and as a
member of the Board, in each case effective as of the Effective Date. Executive
further agrees to execute all documents that are reasonably necessary to
implement such resignations, provided that all such documents are consistent
with the terms and conditions of this Agreement and do not impose any greater
duties or obligations on Executive than those contemplated by this Agreement.
2. SEPARATION BENEFITS
In consideration of Executive's agreements hereunder, the Company further
agrees to make the payments and provide the benefits set forth in this Section 2
(the "Separation Benefits"). Except as expressly provided herein, the Separation
Benefits supersede and replace any and all benefits to which Executive might
otherwise be or become entitled under the Company's compensation and employee
benefit plans (including severance plans and arrangements) and the Prior
Agreement, other than benefit plans subject to Section 401(a) of the Code.
Executive's rights with respect to any compensation previously deferred by him
shall be governed by the terms and conditions of any such deferral and neither
Executive's termination of employment nor anything provided in this Agreement
shall cause a forfeiture of Executive's rights to such deferred compensation.
(a) Accrued Obligations. Within ten business days after the Effective Date,
the Company will pay Executive's accrued and unpaid base salary and accrued and
unused vacation days, all through the Effective Date (subject to applicable
withholdings). In addition, in accordance with the Company's policies and
procedures, the Company shall promptly reimburse Executive for eligible business
expenses incurred by him on or before the Effective Date.
(b) Compensation Continuation; Pro-Rata Bonus. (i) The Company will pay
Executive for the eighteen month period commencing on the Effective Date (the
"Payment Period") compensation continuation payable in eighteen equal monthly
installments of $190,400, commencing on the last day of the month in which the
Effective Date occurs in accordance with the normal payroll practices of the
Company ("Continuation Benefits"); provided that if the Effective Date is other
than the first day of a month, the first installment shall be pro-rated and the
Company shall make a 19th pro-rated installment.
(ii) Executive shall be entitled to a bonus for 2003 under the
Short-Term Incentive Plan of $322,500, payable in a lump sum at the time
bonuses for 2003 are otherwise payable under the Short-Term Incentive Plan.
(c) Stock Options. The Options granted to Executive pursuant to Section
2(b) of the Prior Agreement shall become immediately exercisable on the
Effective Date. All other Options held by Executive on the Effective Date shall
continue to vest during the Payment Period. Subject to the provisions of this
Section 2(c), all Options shall be governed following the Effective Date
pursuant to the terms thereof and the applicable plan pursuant to which such
Options were
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granted. For the avoidance of doubt but subject to Section 2(h)(i), for purposes
of computing the post-employment exercise period of the Options the last day of
the Payment Period shall be deemed Executive's employment termination date.
(d) Retirement Benefits. (i) Executive's benefit under the Retirement Plan
shall be calculated deeming the Payment Period to constitute credited service
and treating the Continuation Benefits payable under Section 2(b) as "Covered
Compensation", for all purposes under the Retirement Plan.
(ii) Executive may elect to begin payment of benefits under the
Retirement Plan at any time after the Effective Date, giving effect to the
deemed credited service and Covered Compensation provisions of Section
2(d)(i) above, without any further actuarial reduction to reflect payments
commencing prior to the end of the Payment Period.
(iii) In the event that Section 2(h)(i)(y) is triggered by reason of
Executive's breaching any Restrictive Covenant, the Retirement Plan
benefits then remaining payable to Executive shall be reduced to the extent
necessary to effectuate such provision. The determination of such reduction
shall be performed by the Company's pension actuaries at the time of such
calculation, using the actuarial assumptions contained in the Company's
tax-qualified defined benefit pension plan, and shall be binding on the
parties hereto.
(e) Key Management Benefit Plan. Executive shall be entitled to participate
in the KMBP on the terms thereof, deeming the Payment Period to constitute
credited service and treating the Continuation Benefits as covered compensation
for KMBP purposes. Executive will be eligible for early retirement under the
KMBP at the end of the Payment Period.
(f) Certain Welfare Benefits. During the Payment Period, the Company shall
continue to provide on the same basis the medical, dental and life insurance
benefits that Executive was receiving or was entitled to receive as of the
Effective Date; provided, however, that if Executive becomes employed on a
full-time basis during the Payment Period, Executive's entitlement to benefit
continuation under this Section 2(f) shall immediately cease, subject to
Executive's rights to COBRA continuation coverage under the Company's welfare
benefit plans by paying the applicable premium therefor.
(g) Certain Perquisites. (i) During the Payment Period, Executive shall be
entitled to receive all perquisites that Executive was entitled to receive on
the Effective Date (including automobile allowance, communications services and
all miscellaneous services other than country club membership dues and accrual
of vacation).
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(ii) During the Payment Period, the Company will provide out placement
counseling by a firm selected by the Company, which payments shall cease
upon the earlier of (x) Executive's becoming re-employed and (y) the end of
the Payment Period.
(iii) The Company shall provide Executive with Office Support for the
six-month period beginning on the 365th day following the Effective Date;
provided, however, that if Executive becomes employed on a full- time basis
during the Payment Period, Executive's right to Office Support shall
immediately cease.
(h) Benefits to Cease upon Breach of Restrictive Covenants or Engaging in
Restricted Activities. In all events, (i) if Executive breaches any of the
Restrictive Covenants then, notwithstanding anything herein to the contrary, (x)
Executive shall immediately cease to have any rights to: (A) the Continuation
Benefits; (B) the Options granted to Executive pursuant to Section 2(b) of the
Prior Agreement and all other Options not vested on the Effective Date shall
immediately terminate and be cancelled; and (C) the benefits to be provided or
paid to Executive, as the case may be, under Sections 2(f) (except with respect
to COBRA continuation coverage) and (g) hereof and (y) Executive's benefit under
the Retirement Plan will be reduced to recapture the benefit provided to
Executive under Section 2(d)(ii) (for the avoidance of doubt, such recaptured
benefit means the absence of any further actuarial reduction in connection with
the commencement of Pension Plan benefits prior to the end of the Payment Period
and does not mean (x) benefits accrued under the Retirement Plan through the
Effective Date, (y) Executive's Mid-Career Pension Enhancement and (z) the
credits accorded under Section 2(d)(i)); and (ii) Executive's right to receive
the Separation Benefits, other than the Separation Benefits set forth in
Sections 2(c), (d) and (e) above, shall immediately cease if Executive engages
in any Restricted Activity; provided that prior to any such cessation under (i)
or (ii) above of any Separation Benefits there shall have been delivered to
Executive a written notice from the Board of its intent to cease payment or
provision of such Separation Benefits accompanied by a written statement setting
forth in reasonable detail the grounds for such cessation, together with an
opportunity for Executive, with Executive's counsel, to be heard before the
Board in response to such notice and statement. In all cases, the Company's
rights under Section 7(a) shall continue.
(i) The Company shall reimburse Executive for reasonable legal and other
professional fees and expenses incurred by him in connection with the
negotiation and execution of this Agreement in an aggregate amount not to exceed
$150,000.
(j) Other Provisions Regarding Payments and Benefits. (i) Executive shall
be under no obligation to seek other employment and, except as expressly
provided herein, there shall be no offset against amounts due Executive under
this
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Agreement on account of any remuneration attributable to any subsequent
employment that he may obtain.
(ii) If, for any period during which Executive is entitled to
continued benefits under this Section 2, the Company reasonably determines
that Executive cannot participate in any Company sponsored welfare benefit
plan because he is not actively performing services for the Company, then,
in lieu of providing benefits under such plan the Company shall provide
comparable benefits or the cash equivalent of the cost thereof (increased,
on a fully tax-adjusted basis, by the amount of all incremental employment
and income taxes incurred by Executive and Executive's dependents as the
case may be) to Executive and, if applicable, Executive's dependents
through other arrangements.
3. RELEASE AND WAIVER OF CLAIMS.
(a) In exchange for this Agreement, Executive (on behalf of Executive
and anyone claiming through or on behalf of Executive), releases the
Company and each of the Company's subsidiaries and other Affiliates (as the
term "Affiliates" is defined by Rule 12b-2 under the Exchange Act), its and
their successors and assigns, and all of their past and present employees,
officers, directors and stockholders (the "Company Group"), and their
agents and attorneys from any and all claims and potential claims, whether
known or unknown and whether or not matured or contingent, demands and
causes of action Executive has or may have had against any of them arising
out of, related to or concerning Executive's service or employment with the
Company and the termination thereof, including claims not currently known
to or contemplated by the parties, to the maximum extent permitted by law.
This release includes, but is not limited to, any and all claims, demands
and causes of action which are related to or concern: the Prior Agreement;
service as a director or officer of the Company; Executive's acquisition or
ownership of Company securities or options thereon; Executive's employment
and the prospective termination thereof as contemplated hereby; Tax
Liabilities; attorneys' fees or costs; discrimination under local, state or
federal law; the Missouri Service Letter Statute; the Age Discrimination in
Employment Act; Title VII of the Civil Rights Act of 1964; the Civil Rights
Act of 1991; the Americans With Disabilities Act; the Employee Retirement
Income Security Act; the Family and Medical Leave Act; severance pay; tort
claims including invasion of privacy, defamation, fraud and infliction of
emotional distress; disputed wage claims; and all other claims, demands,
and causes of action, whether they arise in the United States of America or
elsewhere, to the maximum extent permitted by law. This release does not
apply to (i) any rights or benefits as set forth in this Agreement, (ii)
any rights to indemnification to which Executive is
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entitled under the Company's Certificate of Incorporation, Bylaws, the
Indemnification Agreement or any other applicable agreement now in effect
relating to directors' and officers' liability or (iii) any claims
Executive may have against any parties other than the Company Group related
to or arising out of any Tax Liabilities, tax planning, tax preparation or
any personal financial advice.
(b) In exchange for this Agreement, the Company (on behalf of the
Company and the Company's subsidiaries and other Affiliates, their
successors and assigns and anyone claiming through or on behalf of the
Company or any of the Company's subsidiaries or other Affiliates, their
successors and assigns) releases Executive, Executive's heirs, executors,
personal representatives, attorneys, agents, successors and assigns, from
any and all claims and potential claims, known or unknown and whether or
not matured or contingent, demands and causes of action which they have or
may have had against Executive or them arising out of, related to or
concerning Executive's service or employment with the Company and the
termination thereof, including claims, demands and causes of action not
currently known or contemplated by the parties, in each case, to the
maximum extent permitted by law. This release includes, but is not limited
to, any and all claims, demands and causes of action which are related to
or concern: Executive's service as a director or officer of the Company;
Executive's acquisition or ownership of the Company's securities or options
thereon; the Prior Agreement; and Executive's employment and the
prospective termination thereof as contemplated hereby, except that this
Release does not release Executive from the obligation to comply with
Executive's other obligations under this Agreement. This release does not
apply to any claim, right or cause of action that is (i) asserted in,
relates to or arises from the subject matter at issue in, the derivative
action styled Amalgamated Bank x. XxXxx, et al., No. 00-CV- 230077 (such
subject matter, the "Issues") or (ii) related to any Tax Liabilities, all
of which claims, rights or causes of action are expressly preserved.
4. EXECUTIVE COVENANTS
(a) Proprietary Information. Executive acknowledges that during the
course of his employment he has learned or developed Proprietary
Information. Executive further acknowledges that unauthorized disclosure or
use of such Proprietary Information will cause the Company irreparable
harm. Except as otherwise required by the Company, Executive shall not at
any time following the date hereof directly or indirectly, disclose,
publish, communicate, or use on his behalf or another's behalf any
Proprietary Information. If Executive has any
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questions about whether particular information is Proprietary Information
he shall consult with the Company's General Counsel.
(b) Inducement of Employees, Customers and Others. During the
Restricted Period, Executive may not directly or indirectly solicit,
induce, or encourage any employee, consultant, agent, customer, vendor, or
other parties doing business with the Company to terminate their
employment, agency, or other relationship with the Company or to render
services for or transfer business to any Competitor, and Executive shall
not initiate discussion with any such person for any such purpose or
authorize or knowingly cooperate with the taking of any such actions by any
other individual or entity on behalf of the Competitor.
(c) No Adverse Actions. During the Restricted Period, Executive shall
not, without the prior written consent of the Company, in any manner,
solicit, request, advise, or assist any other person or entity to (i)
undertake any action that would be reasonably likely to, or is intended to,
result in a change in control of the Company or (ii) seek to control in any
material manner the Board.
(d) Return of Property. Executive shall, within five business days
following his Effective Date, return to the Company all property of the
Company in his possession, including all notes, reports, sketches, plans,
published memoranda or other documents, whether in hard copy or in
electronic form, created, developed, generated, received, or held by
Executive during his employment, concerning or related to the Company's
business, whether containing or relating to Proprietary Information or not.
Executive shall not remove, by e- mail, by removal of computer discs or
hard drives, or by other means, any of the above property containing
Proprietary Information, or reproductions or copies thereof, or any
apparatus from the Company's premises without the Company's written
consent.
(e) Mutual Nondisparagement. Executive agrees to refrain from making
at any time after the date hereof any statements about the Company or its
officers or directors that would disparage or reflect unfavorably upon the
image or reputation of the Company or any such officer or director. The
Company agrees to refrain from making at any time after the date hereof any
statements about Executive that would disparage, or reflect unfavorably
upon the image or reputation of the Executive. Notwithstanding the
foregoing, (i) no statement made by either party in the context of any
legal proceeding or relating to the Issues shall be deemed to violate the
provisions of this Section 4(e) and (ii) subject to (i), all communications
relating to the termination of Executive's
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employment with the Company shall be consistent with the draft statement
previously provided to Executive by the Company.
(f) Assistance with Claims. Executive agrees that, consistent with
Executive's business and personal affairs, he will assist the Company in
the defense of any claims or potential claims that are pending or may be
made or threatened to be made against it in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (a
"Proceeding") and will assist the Company in the prosecution of any claims
that may be made by the Company in any Proceeding, to the extent that such
claims may relate to Executive's services provided under this Agreement.
Executive agrees, unless precluded by law, to promptly inform the Company
if Executive is asked to participate (or otherwise become involved) in any
Proceeding involving such claims or potential claims. Executive also
agrees, unless precluded by law, to promptly inform the Company if
Executive is asked to assist in any investigation (whether governmental or
private) of the Company (or its actions), regardless of whether a lawsuit
has then been filed against the Company with respect to such investigation.
The Company agrees to reimburse Executive for all of Executive's reasonable
out-of-pocket expenses associated with such assistance, including travel
expenses and any attorneys' fees and shall pay a reasonable per diem fee of
$3,980 for Executive's services.
(g) Tax Considerations. Executive acknowledges that no representations
have been made to him by the Company or its Affiliates or their agents or
legal counsel regarding the tax implications of any payments made pursuant
to this Agreement. All liability for Executive's share of federal, state,
and local taxes (including FICA) remains with Executive, unless otherwise
agreed to in writing by the Company, and the Company shall deduct
withholdings in the minimum amount required under applicable tax laws,
rules or regulations from the consideration payable under this Agreement.
(h) Limitation to Restricted Activities and Restricted Covenants. The
provisions of this Agreement regarding Restricted Activities and
Restrictive Covenants shall supersede and control over all covenants,
restrictions and other limitations (and the remedies for a violation
thereof), under any plan, program or policy of the Company in which
Executive is a participant or any grant, award or agreement between the
Company and Executive, on Executive's activity after the Effective Date
(including, without limitation, noncompetition covenants and covenants of a
nature set forth in Section 4(a) though Section 4(f) hereof).
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5. NO ADMISSION OF WRONGDOING.
This Agreement is not an admission of wrongdoing or liability by Executive,
the Company, or any of the individuals or entities referenced in Section 3,
above and any and all such wrongdoing or liability is expressly denied. Further,
neither the existence of this Agreement nor the terms and conditions hereof
should be deemed or construed as a conclusion that Executive has engaged in any
wrongdoing.
6. LATE PAYMENTS
If the Company fails to pay any amounts due to Executive under this
Agreement as they come due, the Company agrees to pay interest on such amounts
at the Applicable Federal Rate plus two (2%) percent per annum.
7. ENFORCEMENT AND REMEDIES
(a) Equitable Remedies. Executive acknowledges that the Company would
be irreparably injured by a violation of any of the covenants contained in
Sections 4(a), (b), (c), (e) and (f) (the "Restrictive Covenants") and he
agrees that the Company, in addition to any other remedies available to it
for any such breach or threatened breach, shall be entitled to a
preliminary or permanent injunction, temporary restraining order, or other
equivalent relief, restraining Executive from any actual or threatened
breach of any of the Restrictive Covenants. If a bond is required to be
posted in order for the Company to secure an injunction or other equitable
remedy, the parties agree that said bond need not be more than a nominal
sum.
(b) Resolution of Disputes. Section 11 notwithstanding, all disputes,
claims, or controversies arising under or in connection with this
Agreement, other than those contemplated by Section 7(a) above, shall be
settled exclusively by binding arbitration pursuant to the Federal
Arbitration Act administered by JAMS/Endispute in the greater Kansas City
area in accordance with the then existing JAMS/Endispute Arbitration Rules
and Procedures for Employment Disputes, except that the parties agree that
the arbitrator is not authorized or empowered to impose punitive damages on
either of the parties. If it is determined that any term or other provision
of this Agreement is invalid, illegal, or incapable of being enforced, the
arbitrator shall have the authority to modify the provision or term to the
minimum extent required to permit enforcement. In the event of such an
arbitration proceeding, the Administrator of JAMS/Endispute will appoint
the arbitrator.
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(c) Attorney Fees. If either party seeks to enforce this Agreement and
prevails on the merits, the losing party agrees to pay to the prevailing
party all reasonable legal fees and expenses incurred by the prevailing
party in seeking such enforcement. Such payments shall be made within five
days after the prevailing party's request for payment accompanied by such
evidence of fees and expenses incurred as the losing party reasonably may
require.
8. DEFINITIONS
As used in the Agreement, the following terms shall have the meanings set
forth below.
"Affiliate" has the meaning accorded such term in Section 3.
"Agreement" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Applicable Federal Rate" means the applicable Federal rate within the
meaning of Section 7872 of the Code.
"Board" has the meaning accorded such term in the Recitals.
"Code" means the Internal Revenue Code of 1986, as amended, and references
to sections of the Code include any successor provision.
"Company" has the meaning accorded such term in the introductory paragraph
of this Agreement.
"Company Group" has the meaning accorded such term in Section 3.
"Competitor" means each of the entities set forth on Schedule A hereto.
"Continuation Benefits" has the meaning accorded such term in Section 2.
"Covered Compensation" has the meaning accorded such term in Section 2.
"Effective Date" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Exchange Act" means the Securities Exchange of 1934, as amended.
"Executive" has the meaning accorded such term in the introductory
paragraph of this Agreement.
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"XXX Xxxxxx Xxxxx" means Sprint's FON Common Stock, Series 1, $2.00 par
value per share.
"Indemnification Agreement" means that certain Indemnification Agreement
dated April 14, 1987 between United Telecommunications, Inc., a Kansas
corporation and a predecessor of the Company, and Executive.
"Issues" has the meaning accorded such term in Section 3.
"KMBP" means the Company's Key Management Benefit Plan.
"Office Support" means the continued administrative services of Executive's
current administrative assistant (or, if such administrative assistant is
unavailable, another such individual having comparable skills and experience who
is reasonably acceptable to Executive) and a monthly office allowance of $2,500.
"Options" means all of the options previously granted to Executive to
purchase shares of FON Common Stock and PCS Common Stock under any of Sprint's
stock option plans or programs.
"Payment Period" has the meaning accorded such term in Section 2.
"PCS Common Stock" means the Sprint's PCS Common Stock, Series 1, $1.00 par
value per share.
"Person" means an individual, corporation, partnership, association, trust
or any other entity or organization.
"Proceeding" has the meaning accorded such term in Section 4.
"Prior Agreement" has the meaning accorded such term in the Recitals.
"Proprietary Information" means trade secrets (such as customer
information, technical and non- technical data, a formula, pattern, compilation,
program, device, method, technique, drawing, process) and other confidential and
proprietary information concerning the products, processes, or services of the
Company or the Company's affiliates, including but not limited to: computer
programs, unpatented or unpatentable inventions, discoveries or improvements;
marketing, manufacturing, or organizational research and development results and
plans; business and strategic plans; sales forecasts and plans; personnel
information, including the identity of other employees of the Company, their
responsibilities, competence, abilities, and compensation; pricing and financial
information; current and prospective customer lists and information on customers
or their employees; information concerning purchases of major equipment or
property; and information about potential mergers or acquisitions which
information: (i) has not been made known generally to the public and is useful
or
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of value to the current or anticipated business, or research or development
activities of the Company or of any customer or supplier of the Company, or (ii)
has been identified to Executive as confidential by the Company, either orally
or in writing.
"Restricted Activities" means, during the Restricted Period, Executive's
becoming associated with a Competitor, whether paid or unpaid and whether as a
consultant, employee, or otherwise.
"Restricted Period" means the eighteen month period beginning on the
Effective Date. If Executive breaches or violates any of the covenants or
provisions of this Agreement, the running of the Restricted Period shall be
tolled during the period the breach or violation continues.
"Retirement Plan" means the Sprint Supplemental Executive Retirement Plan.
"Restrictive Covenants" has the meaning accorded such term in Section 7.
"Separation Benefits" has the meaning accorded such term in Section 2.
"Short-Term Incentive Plan" means the Company's Management Incentive Plan.
"SPRINT" has the meaning accorded such term in the introductory paragraph
of this Agreement.
"SUMC" has the meaning accorded such term in the introductory paragraph of
this Agreement.
"Tax Liabilities" means any federal, state or local taxes, including income
and withholding taxes and interest and penalties thereon, relating to any
compensation paid or deemed paid by the Company or any of its Affiliates to
Executive.
9. ASSIGNABILITY, BINDING NATURE
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, heirs (in the case of Executive), and
assigns. No rights or obligations of the Company under this Agreement may be
assigned or transferred by the Company except that such rights or obligations
may be assigned or transferred to any subsidiary of Sprint or pursuant to a
merger or consolidation in which the Company is not the continuing entity, or
the sale or liquidation of all or substantially all of the assets of the
Company, but only if the assignee or transferee becomes the successor to all or
substantially all of the
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assets of the Company and assumes the liabilities, obligations, and duties of
the Company, as contained in this Agreement, either contractually or as a matter
of law. The Company further agrees that, in the event of a sale of assets or
liquidation as described in the preceding sentence, it will take whatever action
it legally can in order to cause the assignee or transferee to expressly assume
the liabilities, obligations, and duties of the Company hereunder. No rights or
obligations of Executive under this Agreement may be assigned or transferred by
Executive other than his rights to compensation and benefits, which may be
transferred only in connection with Executive's estate planning objectives or by
will or operation of law.
10. AMENDMENT
This Agreement may be amended, modified, or canceled only by mutual
agreement of the parties in writing.
11. APPLICABLE LAW
The provisions of this Agreement shall be construed in accordance with the
internal laws of the State of Kansas, without regard to the conflict of law
provisions of any state.
12. SEVERABILITY
The various provisions of this Agreement are intended to be severable and
to constitute independent and distinct binding obligations. If any provision of
this Agreement is determined to be invalid, illegal, or incapable of being
enforced, in whole or in part, it shall not affect or impair the validity of any
other provision or part of this Agreement, and the provision or part shall be
deemed modified to the minimum extent required to permit enforcement. Upon such
a determination that any term or other provision is invalid, illegal, or
incapable of being enforced, the court or arbitrator, as applicable, shall have
the authority to so modify the provision or term. If such provision or term is
not modified by the court or arbitrator, the parties must negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
provisions of this Agreement are preserved to the greatest extent possible.
13. WAIVER OF BREACH
No waiver by any party hereto of a breach of any provision of this
Agreement by any other party, or of compliance with any condition or provision
of this Agreement to be performed by such other party, will operate or be
construed as a waiver of any subsequent breach by the other party of any similar
or dissimilar provisions and conditions at the same or any prior or subsequent
13
time. The failure of either party to take any action by reason of such breach
will not deprive the party of the right to take action at any time while the
breach continues.
14. NOTICES
Notices and all other communications provided for in this Agreement shall
be in writing and shall be delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid, or prepaid overnight
courier to the parties at the addresses set forth below (or such other addresses
as shall be specified by the parties by like notice):
If to the Company: 0000 Xxxxxx Xxxxxxx
XXXXXX0000-0X000
Xxxxxxxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: General Counsel
Copies to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxx X. Xxxxx
If to Executive: 0000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxx X. XxXxx
Copies to: Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxxxxx
Each party, by written notice furnished to the other party, may modify the
applicable delivery address, but any notice of change of address shall be
effective only upon receipt. Such notices, demands, claims and other
communications shall be deemed given in the case of delivery by overnight
service with guaranteed next day delivery, the next day or the day designated
for delivery; or in the case of certified or registered U.S. mail, five days
after deposit in the U.S. mail, but in no event will any such communications be
deemed to be given later than the date they are actually received.
14
15. ENTIRE AGREEMENT
Except as otherwise noted herein, this Agreement constitutes the entire
agreement between the parties concerning the subject matter specifically
addressed herein and, except for the terms and provisions of any other employee
benefit or other compensation plans (or any agreements or awards thereunder)
referred to herein or contemplated hereby, this Agreement supersedes all prior
and contemporaneous oral agreements, if any, between the parties relating to the
subject matter specifically addressed herein including, without limitation, the
Prior Agreement among the Company and Executive, but excluding the Retirement
Plan except to the extent specifically provided in Sections 2(d) and (h) and the
Letter Agreement, dated as of the Effective Date.
The Indemnification Agreement shall survive the termination of Executive's
employment and the termination of the Prior Agreement hereunder.
16. HEADINGS
The headings in this Agreement are for convenience of reference only and
will not affect the construction of any of its provisions.
17. COUNTERPARTS
This Agreement may be executed in separate counterparts, each of which is
deemed to be an original and all of which taken together constitute one and the
same agreement.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement,
to be effective as of the date first set forth above.
SPRINT CORPORATION
/s/ Xxxxxx X. XxXxx
Xxxxxx X. XxXxx
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
SPRINT/UNITED MANAGEMENT COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President - Law
16
Schedule A
Alltel Corporation
AOL Time Warner Inc.
AT&T Corp.
AT&T Wireless Services
BellSouth Corporation
Broadwing Inc.
BT Group plc
Cable and Wireless plc
CenturyTel, Inc.
Cingular Wireless LLC
Citizens Communications
Comcast Corporation
Xxx Communications, Inc.
Deustche Telekom AG
Everest Connections
Corporation
France Telecom
McLeodUSA Incorporated
Level 3 Communications, Inc.
Nextel Communications, Inc.
Qwest Communications Int.
Xxxxxx Communications
SBC Communications Inc.
T-Mobile USA, Inc.
U.S. Cellular
Verizon Communications Inc.
Vodafone Group plc
WorldCom Inc.
XO Communications, Inc.
