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Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"Agreement") is made and entered into on December 31, 2008 and
amends and restates the Employment Agreement (the "Original
Employment Agreement"), originally entered into as of
December 17, 2007 (the "Effective Date"), by and between
Sprint Nextel Corporation, a Kansas corporation (the "Company") on
behalf of itself and any of its subsidiaries, affiliates and
related entities, and Daniel R. Hesse (the "Executive") (the
Company and the Executive, collectively, the "Parties," and each, a
"Party"). Certain capitalized terms are defined in
Section 30.
WITNESSETH :
WHEREAS, the Executive serves as President and Chief Executive
Officer; and
WHEREAS, the Executive and the Company desire to amend and
restate the Original Employment Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements set forth herein and for other good and
valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the Company and the Executive hereby amend and
restate the Original Employment Agreement as follows:
1. Employment
(a) The Company will continue to employ the Executive, and the
Executive will continue to be employed by the Company upon the
terms and conditions set forth herein.
(b) The employment relationship between the Company and the
Executive shall be governed by the general employment policies and
practices of the Company, including without limitation, those
relating to the Company’s Code of Conduct, confidential
information and avoidance of conflicts, except that when the terms
of this Agreement differ from or are in conflict with the
Company’s general employment policies or practices, this
Agreement shall control.
2. Term . Subject to termination under Section 9,
the Executive’s employment shall be for an initial term of 36
months commencing on the Effective Date and shall continue through
the third anniversary of the Effective Date (the "Initial
Employment Term"). At the end of the Initial Employment Term and on
each succeeding anniversary of the Effective Date, the Employment
Term will be automatically extended by an additional 12 months
(each, a "Renewal Term"), unless, not less than 12 months prior to
the end of the Initial Employment Term or any Renewal Term, either
the Executive or the Company has given the other written notice (in
accordance with Section 20) of non-renewal. The Executive
shall provide the Company with written notice of his intent to
terminate employment with the Company at least 30 days prior to the
effective date of such termination.
3. Position and Duties of the Executive
.
(a) The Executive serves as the President and Chief Executive
Officer of the Company and shall have such duties and authority
consistent with such position as shall be determined from time to
time by the Board of Directors of the Company (the "Board") and as
is customary for the position of chief executive officer of a
company of the size and nature of the business of the Company, and
agrees to serve as an officer of any enterprise and/or agrees to be
an employee of any Subsidiary as may be reasonably requested from
time to time by the Board, or any committee of the Board. In such
capacity, the Executive shall report only to the Board, shall be
the highest ranking senior officer of the Company, and all
employees of the Company shall report, directly or indirectly, to
the Executive. The Company appointed the Executive to the Board on
the Effective Date and will nominate him for election to the Board
by the Company’s shareholders at future annual
shareholders’ meetings.
(b) During the Employment Term, the Executive shall, except as
may from time to time be otherwise agreed to in writing by the
Company, during reasonable vacations (as set forth in
Section 7 hereof) and authorized leave and except as may from
time to time otherwise be permitted pursuant to Section 3(c),
devote his best efforts, full attention and energies during his
normal working time to the business of the Company, to any duties
as may be delineated in the Company’s Bylaws for the
Executive’s position and title and such other related duties
and responsibilities as may from time to time be reasonably
prescribed by the Board, or any committee of the Board, in each
case, within the framework of the Company’s policies and
objectives.
(c) During the Employment Term, and provided that such
activities do not contravene the provisions of Section 3(a) or
Sections 10, 11, 12 or 13 hereof and, provided
further , the Executive does not engage in any other
substantial business activity for gain, profit or other pecuniary
advantage which materially interferes with the performance of his
duties hereunder, the Executive may participate in any
governmental, educational, charitable or other community affairs
and, subject to the prior approval of the Board serve as a member
of the governing board of any such organization or any private or
public for-profit company. The Executive may retain all fees and
other compensation from any such service, and the Company shall not
reduce his compensation by the amount of such fees.
4. Compensation .
(a) Base Salary . During the Employment Term, the Company
shall pay to the Executive an annual base salary of $1,200,000 (the
"Base Salary"), which Base Salary shall be payable at the times and
in the manner consistent with the Company’s general policies
regarding compensation of the Company’s senior executives.
The Base Salary will be reviewed periodically by the Compensation
Committee and may be increased (but not decreased, except for
across-the-board reductions generally applicable to the
Company’s senior executives) from time to time in the
Compensation Committee’s sole discretion.
(b) Incentive Compensation . The Executive will continue
to be eligible to participate in any short-term and long-term
incentive compensation plans, annual bonus plans and such other
management incentive programs or arrangements of the Company
approved by
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the Board that are generally available to the
Company’s senior executives, including, but not limited to,
the STIP and the LTSIP. Incentive compensation shall be paid in
accordance with the terms and conditions of the applicable plans,
programs and arrangements.
(i) Annual Performance Bonus . During the Employment
Term, the Executive shall continue to be entitled to participate in
the STIP, with such opportunities as may be determined by the
Compensation Committee in its sole discretion ("Target Bonuses");
provided , however , that for the bonus year ending
December 31, 2008 and thereafter during the Employment Term,
the Executive will participate at an annual Target Bonus
opportunity of 170% of his Base Salary, (as may be increased, but
not decreased, except for across-the-board reductions generally
applicable to the Company’s senior executives), and the
Executive shall be entitled to receive full payment of any award
under the STIP up to a maximum annual bonus of 200% of his Target
Bonus, determined pursuant to the STIP (a "Bonus Award").
(ii) Long-Term Performance Bonus . During the Employment
Term, the Executive shall continue to be entitled to participate in
the LTSIP with such opportunities, if any, as may be determined by
the Compensation Committee ("LTSIP Target Award Opportunities");
provided , however , that the Executive’s
initial LTSIP Target Award Opportunity for 2008 will be at a value
of $10 million, which shall be granted in the form of equity and/or
cash-based awards based on the Company’s practices under the
LTSIP for its senior executives.
(iii) Incentive bonuses, if earned, shall be paid when incentive
compensation is customarily paid to the Company’s senior
executives in accordance with the terms of the applicable plans,
programs or arrangements.
(iv) Pursuant to the Company’s applicable incentive or
bonus plans as in effect from time to time, the Executive’s
incentive compensation during the term of this Agreement may be
determined according to criteria intended to qualify as
performance-based compensation under Section 162(m) of the
Code.
(c) Equity Compensation . The Executive shall continue to
be eligible to participate in such equity incentive compensation
plans and programs as the Company generally provides to its senior
executives, including, but not limited to, the LTSIP. During the
Employment Term, the Compensation Committee may, in its sole
discretion, grant equity awards to the Executive, which would be
subject to the terms of the award agreements evidencing such grants
and the applicable plan or program.
(d) Sign-on Compensation .
(i) Sign-On Cash Bonus Award . Not later than 15 days
after the Effective Date, the Company paid to the Executive a cash
sign-on bonus in the amount of $2,650,000.
(ii) Sign-On Option Award . On the Effective Date the
Compensation Committee granted to the Executive an option to
purchase 3,275,000 shares of the
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Company’s Common Stock under the LTSIP (the
"Sign-On Option Award"). The Sign-On Option Award is subject to the
terms and conditions of the option agreement attached hereto as
Exhibit A. With respect to 1 million shares underlying the
Sign-On Option Award, the Option Price is equal to the Market Value
Per Share on the Date of Grant (each term as defined in the LTSIP).
With respect to 1 million shares underlying the Sign-On Option
Award, the Option Price is equal to 120% of the Market Value Per
Share on the Date of Grant. With respect to the remaining
1.275 million shares underlying the Sign-On Option Award, the
Option Price is equal to 140% of the Market Value Per Share on the
Date of Grant. Subject to the terms and conditions of the option
agreement evidencing such grant, the Sign-On Option Award shall
vest in equal annual installments on each of the first three
anniversaries of the Date of Grant; provided ,
however , that to the extent the Sign-On Option Award is not
assumed, converted or replaced with equivalent value awards by the
resulting entity in the event of a Change in Control (as defined in
the LTSIP), the Sign-On Option Award shall immediately vest and
become fully exercisable. Except as otherwise provided in the
Executive’s award agreement evidencing the Sign-On Option
Award, the Sign-On Option Award will be governed by provisions of
the LTSIP.
(iii) Sign-On RSU Award . On the Effective Date the
Compensation Committee granted to the Executive restricted stock
units (the "Sign-On RSU Award"). The Sign-On RSU Award is subject
to the terms and conditions of the restricted stock unit agreement
evidencing such grant attached as Exhibit A. The Sign-On RSU Award
was granted at an aggregate value of $10 million based on the
Market Value Per Share on the Date of Grant (each term as defined
in the LTSIP) and shall vest in equal annual installments on each
of the first three anniversaries of the Date of Grant;
provided , however , that to the extent the Sign-On
RSU Award is not assumed, converted or replaced with equivalent
value awards by the resulting entity in the event of a Change in
Control (as defined in the LTSIP), all restrictions with respect to
any unvested portion of the Sign-On RSU Award shall immediately
lapse and the Sign-On RSU Award will become vested and
nonforfeitable. Except as otherwise provided in the
Executive’s award agreement evidencing the Sign-On RSU Award,
the Sign-On RSU Award will be governed by provisions of the LTSIP.
After the Sign-On RSU Award vests, the RSUs will remain outstanding
and the Executive will be entitled to delivery of the shares
underlying the vested Sign-On RSU Award on the first business day
of the seventh month following the Executive’s Separation
from Service. On each date that the Company pays a dividend on the
Common Stock underlying the Sign-On RSU Award to the extent it is
not vested, the unvested Sign-On RSU Award will accrue additional
whole or fractional RSUs equal to the number of shares of Common
Stock the dividend would buy at the Market Value Per Share on the
dividend payment date. These additional RSUs will vest and be
subject to delivery at the same time as the shares originally
payable under the Sign-On RSU Award. To the extent the Sign-On RSU
Award is vested, on each date that the Company pays a dividend on
the Common Stock, the Executive will receive an amount of cash
equal to the dividends on the number of shares underlying the
vested Sign-On RSU Award in cash on the dividend payment date.
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5. Benefits .
(a) During the Employment Term, the Company shall make available
to the Executive, subject to the terms and conditions of the
applicable plans, participation for the Executive and his eligible
dependents in: (i) Company-sponsored group health, major
medical, dental, vision, life insurance, pension and profit
sharing, 401(k) and employee benefit plans, programs and
arrangements (the "Employee Plans") and such other usual and
customary benefits in which senior executives of the Company
participate from time to time, and (ii) such fringe benefits
and perquisites as may be made available to senior executives of
the Company as a group. The Executive shall be entitled to
indemnification on terms and conditions no less favorable than
those made available generally to the senior officers as such
indemnification arrangements shall be in effect from time to
time.
(b) The Executive acknowledges that the Company may change its
benefit programs from time to time, which may result in certain
benefit programs being amended or terminated for its senior
executives generally.
6. Expenses . The Company shall pay or reimburse the
Executive for reasonable and necessary business expenses incurred
by the Executive in connection with his duties on behalf of the
Company in accordance with the Company’s Enterprise Financial
Services—Employee Travel and Expense Policy, as may be
amended from time to time, or any successor policy, plan, program
or arrangement thereto and any other of its expense policies
applicable to senior executives of the Company, following
submission by the Executive of reimbursement expense forms in a
form consistent with such expense policies.
7. Vacation . In addition to such holidays, sick leave,
personal leave and other paid leave as is allowed under the
Company’s policies applicable to senior executives generally,
the Executive shall be entitled to participate in the
Company’s vacation policy at a minimum of four (4) weeks
vacation per calendar year, in accordance with the Company’s
policy generally applicable to senior executives.
8. Place of Performance . If the Company relocates the
Executive’s place of work more than 50 miles from his place
of work prior to such relocation, the Executive shall relocate to a
residence within (a) 50 miles of such relocated executive
offices or (b) such total miles that does not exceed the total
number of miles the Executive commuted to his place of work prior
to relocation of the Executive’s place of work. To the extent
the Executive relocates his residence as provided in this
Section 8, the Company will pay or reimburse the
Executive’s relocation expenses in accordance with the
Company’s relocation policy applicable to senior
executives.
9. Termination .
(a) Termination by the Company for Cause or Resignation by
the Executive Without Good Reason . If, during the Employment
Term, the Executive’s employment is terminated by the Company
for Cause, or if the Executive resigns without Good Reason, the
Executive shall not be eligible to receive Base Salary or to
participate in any Employee Plans with respect to future periods
after the date of such termination or resignation except for the
right to receive accrued but unpaid cash compensation and vested
benefits under any Employee Plan in accordance with the terms of
such Employee Plan and applicable law.
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(b) Termination by the Company Without Cause
or Resignation by the Executive for Good Reason outside of the CIC
Severance Protection Period . If, during the Employment Term,
the Executive’s employment is terminated by the Company
without Cause or the Executive terminates for Good Reason prior to
or following expiration of the CIC Severance Protection Period and
such termination constitutes a Separation from Service or the
Executive is entitled to severance compensation and benefits under
this Section 9(b) pursuant to the provisions of
Section 9(c), the Executive shall be entitled to receive from
the Company: (1) the Executive’s accrued, but unpaid,
Base Salary through the date of termination of employment, payable
in accordance with the Company’s normal payroll practices,
and (2) conditioned upon the Executive executing a Release
within the Release Consideration Period and delivering it to the
Company with the Release Revocation Period expired without
revocation, and in full satisfaction of the Executive’s
rights and any benefits the Executive might be entitled to under
the Separation Plan and this Agreement, unless otherwise specified
herein:
(i) periodic payments equal to his Base Salary in effect prior
to the termination of his employment, which payments shall be paid
to the Executive in equal installments on the regular payroll dates
under the Company’s payroll practices applicable to the
Executive on the date of this Agreement for the Payment Period
except that (A) if the Release Consideration and Revocation
Period ends on or after December 15 th of the calendar year of the
Executive’s Separation from Service, such installments that
are otherwise payable in the calendar year of the Executive’s
Separation from Service shall be paid in a lump sum on the first
business day of the following calendar year or (B) if the
Executive is a Specified Employee, with respect to any amount
payable by reason of the Separation from Service that constitutes
deferred compensation within the meaning of Section 409A of
the Code, such installments shall not commence until after the end
of the six continuous month period following the date of the
Executive’s Separation from Service, in which case, the
Executive shall be paid a lump-sum cash payment equal to the
aggregate amount of missed installments during such period on the
first day of the seventh month following the date of the
Executive’s Separation from Service;
(ii) (A) receive a pro rata payment of the Bonus Award for the
portion of the Company’s current fiscal year prior to the
date of termination of his employment; (B) receive a pro rata
payment of the Capped Bonus Award for the portion of the
Company’s current fiscal year following the date of
termination of his employment; (C) receive for the next fiscal
year following the fiscal year during which termination of his
employment occurs, the Capped Bonus Award; and (D) receive
payment of a pro rata portion of the Capped Bonus Award for the
second year following the fiscal year during which the
Executive’s employment terminates (for purposes of this
Section 9(b)(ii), any pro rata payment shall be determined
based on the methodology for determining pro rated awards under the
STIP, each such payment shall be payable in accordance with the
provisions of the STIP in the calendar year in which the Bonus
Award or each Capped Bonus
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Award, as applicable, is determined), and in all
events, not later than December 31 st of the year in which each such
award is determined; provided , however , that to the
extent the Executive’s employment is terminated for Good
Reason due to a reduction of the Executive’s Target Bonus, in
accordance with Section 30(y)(ii), the Executive’s
Target Bonus for the purposes of this Section 9(b)(ii) shall
be the Executive’s Target Bonus immediately prior to such
reduction;
(iii) from the date of Separation from Service continue
participation in the Company’s group health plans at
then-existing participation and coverage levels for the number of
months equal to the period of continuation coverage the Executive
would be entitled to pursuant to Section 4980B of the Code, in
accordance with Section 409A of the Code, comparable to the
terms in effect from time to time for the Company’s senior
executives, including any co-payment and premium payment
requirements and the Company shall deduct from each payment payable
to the Executive pursuant to Section 9(b)(i), the amount of
any employee contributions necessary to maintain such coverage for
such period, except that subject to Section 9(b)(iv),
(A) following such period, the Executive shall retain any
rights to continue coverage under the Company’s group health
plans under the benefits continuation provisions pursuant to
Section 4980B of the Code by paying the applicable premiums of
such plans; and (B) the Executive shall no longer be eligible
to receive the benefits otherwise receivable pursuant to this
Section 9(b)(iii) as of the date that the Executive becomes
eligible to receive comparable benefits from a new employer;
(iv) continued participation at the Executive’s sole cost
in the Company’s group health plans at then-existing
participation and coverage levels for the remainder of the Payment
Period following the period of continuation coverage the Executive
would be entitled to, if any, pursuant to Section 9(b)(iii)
above, in accordance with Section 409A of the Code, comparable
to the terms in effect from time to time for the Company’s
senior executives, but only to the extent that the Executive makes
a payment to the Company in an amount equal to the monthly premium
payments (both the employee and employer portions) required to
maintain such comparable coverage on or before the first day of
each calendar month commencing with the first calendar month of the
six-month period following the period of continuation coverage
specified in Section 9(b)(iii), and the Company shall
reimburse the Executive, in accordance with the terms of
Section 6 hereof, for the amount of such premiums, if any, in
excess of any employee contributions necessary to maintain such
coverage, except that (A) following such period, the Executive
shall retain any rights to continue coverage under the
Company’s group health plans under the benefits continuation
provisions pursuant to Section 4980B of the Code by paying the
applicable premiums of such plans; and (B) the Executive shall
no longer be eligible to receive the benefits otherwise receivable
pursuant to this Section 9(b)(iv) as of the date that the
Executive becomes eligible to receive comparable benefits from a
new employer;
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(v) continue participation in the Company’s
employee life insurance plans at then-existing participation and
coverage levels for the Payment Period, comparable to the terms in
effect from time to time for the Company’s senior executives,
including any co-payment and premium payment requirements and the
Company shall deduct from each payment payable to the Executive
pursuant to Section 9(b)(i), the amount of any employee
contributions necessary to maintain such coverage for such period,
except that the Executive shall no longer be eligible to receive
the benefits otherwise receivable pursuant to this
Section 9(b)(v) as of the date that the Executive becomes
eligible to receive comparable benefits from a new
employer;
(vi) accelerated vesting of any unvested portion of the Sign-On
Option Award;
(vii) all restrictions with respect to any unvested portion of
the Sign-On RSU Award shall immediately lapse and the Sign-On RSU
Award will become vested and nonforfeitable, and the Executive will
be entitled to payment on the first business day of the seventh
month following the Executive’s Separation from Service;
and
(viii) receive outplacement services by a firm selected by the
Company at its expense in an amount not to exceed $35,000;
provided , however , that all such outplacement
services must be completed, and all payments by the Company must be
made, by December 31st of the second calendar year following
the calendar year in which the Executive’s Separation from
Service occurs.
Notwithstanding anything in this Section 9(b) to the
contrary, to the extent the Executive has not executed the Release
within the Release Consideration Period and delivered it to the
Company, or has revoked the executed Release within the Release
Revocation Period, as determined at the end of such Release
Revocation Period, the Executive will forfeit any right to receive
the payments and benefits specified in this Section 9(b).
(c) Termination by the Company Without Cause or Resignation
by the Executive for Good Reason During the CIC Severance
Protection Period . Subject to (i)-(iv) below, if the
Executive’s employment is terminated by the Company without
Cause, or the Executive terminates employment for Good Reason,
before the Employment Term expires and during the CIC Severance
Protection Period, and the termination constitutes a Separation
from Service, subject to the terms of the CIC Severance Plan, the
Executive will become entitled to severance compensation and
benefits under the CIC Severance Plan as of (x) the date the
Separation from Service occurs, or (y) in the event of a
Pre-CIC Termination, the date the Change in Control occurs, as of
which date all rights to severance benefits under this Agreement
will cease.
(i) The CIC Severance Plan will not apply and the Executive will
be entitled to severance compensation and benefits under
Section 9(b) of this Agreement if (x) as of his
Separation from Service, the Executive is not a Participant in, or
(y) the Executive is otherwise not entitled to severance
compensation and benefits under, the CIC Severance Plan.
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(ii) If the Executive is entitled to severance
benefits under the CIC Severance Plan as a result of a Pre-CIC
Termination, any benefits payable before the Change in Control will
be paid under this Agreement and any additional benefits payable
after the Change in Control will be paid under the CIC Severance
Plan.
(iii) In no event may there be duplication of benefits under
this Agreement and the CIC Severance Plan.
(iv) The terms "Change in Control" and "Pre-CIC Termination" are
defined in the CIC Severance Plan.
Furthermore, the Executive will be entitled to accelerated
vesting of any unvested portion of the Sign-On Option Award, and
all restrictions with respect to any unvested portion of the
Sign-On RSU Award shall immediately lapse and the Sign-On RSU Award
will become vested and nonforfeitable, and the Executive will be
entitled to payment on the first business day of the seventh month
following the Executive’s Separation from Service.
(d) Termination by Death . If the Executive dies during
the Employment Term, the Executive’s employment will
terminate and the Executive’s beneficiary or if none, the
Executive’s estate, shall be entitled to receive from the
Company, the Executive’s accrued, but unpaid, Base Salary
through the date of termination of employment and any vested
benefits under any Employee Plan in accordance with the terms of
such Employee Plan and applicable law. Upon the Executive’s
death, any unvested portion of the Sign-On Option Award shall
immediately vest, and all restrictions with respect to any unvested
portion of the Sign-On RSU Award shall immediately lapse and the
Sign-On RSU Award will become vested, nonforfeitable and payable
upon the Executive’s death.
(e) Termination by Disability . If the Executive becomes
Disabled, prior to the expiration of the Employment Term, the
Executive’s employment will terminate, and provided that such
termination constitutes a Separation from Service, the Executive
shall be entitled to:
(i) receive periodic payments equal to his Base Salary in effect
prior to the termination of his employment, which payments shall be
paid to the Executive in equal installments on the regular payroll
dates under the Company’s payroll practices applicable to the
Executive on the date of this Agreement for the longer of 12 months
or the applicable waiting period under the Company’s
long-term disability plan (the "LTD Plan") (reduced by any amounts
paid under the LTD Plan) now or hereafter sponsored by the Company
(calculated on a monthly basis) commencing on the Separation from
Service date; provided , however , that in the event
that the Executive is a Specified Employee, any such payments that
constitute deferred compensation within the meaning of
Section 409A of the Code will not commence until earliest to
occur of (A) the first business day of the seventh month
following the date of the Executive’s Separation from Service
or (B) death, except that the Executive on such date will be
paid a lump-sum cash payment equal to the aggregate amount of any
such payments that constitute deferred compensation within the
meaning of Section 409A of the Code that the
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Executive would have been entitled to receive
during the six-month period following the Executive’s
Separation from Service, and the Executive shall receive the
remaining payments for six months payable in equal installments on
the regular payroll dates under the Company’s payroll
practices applicable to the Executive on the date of this Agreement
commencing on the first business day of the seventh month following
the date of the Executive’s Separation from Service as
specified in this Section 9(e)(i); and
(ii) continue participation in the Company’s group health
plans at then-existing participation and coverage levels for the
longer of 12 months (measured from the Executive’s Separation
from Service) or the waiting period under the LTD Plan, comparable
to the terms in effect from time to time for the Company’s
senior executives, including any co-payment and premium payment
requirements; provided , however , that if the
Executive would not be eligible for participation under the
Company’s group health plans but for this
Section 9(e)(ii), such continued participation will be at the
Executive’s sole cost and only to the extent the Executive
makes a payment to the Company in an amount equal to the monthly
premium payments (both the employee and employer portions) required
to maintain such comparable coverage on or before the first day of
each calendar month of such coverage, and the Company shall
reimburse the Executive, in accordance with the terms of
Section 6 hereof, for the amount of such premiums;
(iii) accelerated vesting of any unvested portion of the Sign-On
Option Award; and
(iv) all restrictions with respect to any unvested portion of
the Sign-On RSU Award shall immediately lapse and the Sign-On RSU
Award will become vested and nonforfeitable, and the Executive will
be entitled to payment on the first business day of the seventh
month following the Executive’s Separation from Service.
(f) No Mitigation Obligation . No amounts paid under
Section 9 will be reduced by any earnings that the Executive
may receive from any other source. The Executive’s coverage
under the Company’s medical, dental, vision and employee life
insurance plans will terminate as of the date that the Executive is
eligible for comparable benefits from a new employer. The Executive
shall notify the Company within 30 days after becoming eligible for
coverage of any such benefits.
(g) Forfeiture . Notwithstanding the foregoing, any right
of the Executive to receive termination payments and benefits
hereunder shall be forfeited to the extent of any amounts payable
after any breach of Section 10, 11, 12, 13 or 15 by the
Executive.
10. Confidential Information; Statements to Third Parties
.
(a) During the Employment Term and on a permanent basis upon and
following termination of the Executive’s employment, the
Executive acknowledges that:
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(i) all information, whether or not reduced to
writing (or in a form from which information can be obtained,
translated, or derived into reasonably usable form) and whether
compiled or created by the Company, any of its Subsidiaries or any
affiliates of the Company or its Subsidiaries (collectively, the
"Company Group"), which derives independent economic value from not
being readily known to or ascertainable by proper means by others
who can obtain economic value from the disclosure or use of such
information, of a proprietary, private, secret or confidential
(including, without exception, inventions, products, processes,
methods, techniques, formulas, compositions, compounds, projects,
developments, sales strategies, plans, research data, clinical
data, financial data, personnel data, computer programs, customer
and supplier lists, trademarks, service marks, copyrights (whether
registered or unregistered), artwork, and contacts at or knowledge
of customers or prospective customers) nature concerning the
Company Group’s business, business relationships or financial
affairs (collectively, "Proprietary Information") shall be the
exclusive property of the Company Group.
(ii) reasonable efforts have been put forth by the Company Group
to maintain the secrecy of its Proprietary Information;
(iii) such Proprietary Information is and will remain the sole
property of the Company Group; and
(iv) any retention or use by the Executive of Proprietary
Information after the termination of the Executive’s services
for the Company Group will constitute a misappropriation of the
Company Group’s Proprietary Information.
(b) The Executive further acknowledges and agrees that he will
take all affirmative steps reasonably necessary or required by the
Company to protect the Proprietary Information from inappropriate
disclosure during and after his employment with the Company.
(c) All materials or copies thereof and all tangible things and
other property of the Company Group that constitute Proprietary
Information in the Executive’s custody or possession shall be
delivered to the Company (to the extent the Executive has not
already returned) in good condition, on or before five business
days subsequent to the earlier of: (i) a request by the
Company or (ii) the Executive’s termination of
employment for any reason or Cause, including for nonrenewal of
this Agreement, Disability, termination by the Company or
termination by the Executive. After such delivery, the Executive
shall not retain any such materials or portions or copies thereof
or any such tangible things and other property and shall execute
any statements or affirmations of compliance under oath that the
Company may require.
(d) The Executive further agrees that his obligation not to
disclose or to use information and materials of the types set forth
in Sections 10(a), 10(b) and 10(c) above, and his obligation to
return materials and tangible property, set forth in
Section 10(c) above, also extends to such types of
information, materials and tangible property of customers of the
Company Group, consultants for the Company Group, suppliers to the
Company Group, or other third parties who may have disclosed or
entrusted the same to the Company Group or to the Executive.
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(e) The Executive further acknowledges and agrees
that he will continue to keep in strict confidence, and will not,
directly or indirectly, at any time, disclose, furnish,
disseminate, make available, use or suffer to be used in any manner
any Proprietary Information of the Company Group without limitation
as to when or how the Executive may have acquired such Proprietary
Information and that he will not disclose any Proprietary
Information to any person or entity other than appropriate
employees of the Company or use the same for any purposes (other
than in the performance of his duties as an employee of the
Company) without written approval of the Board, either during or
after his employment with the Company.
(f) Further the Executive acknowledges that his obligation of
confidentiality will survive, regardless of any other breach of
this Agreement or any other agreement, by any party hereto, until
and unless such Proprietary Information of the Company Group has
become, through no fault of the Executive, generally known to the
public. In the event that the Executive is required by law,
regulation, or court order to disclose any of the Company
Group’s Proprietary Information, the Executive will promptly
notify the Company prior to making any such disclosure to
facilitate the Company seeking a protective order or other
appropriate remedy from the proper authority. The Executive further
agrees to cooperate with the Company in seeking such order or other
remedy and that, if the Company is not successful in precluding the
requesting legal body from requiring the disclosure of the
Proprietary Information, the Executive will furnish only that
portion of the Proprietary Information that is legally required,
and the Executive will exercise all legal efforts to obtain
reliable assurances that confidential treatment will be accorded to
the Proprietary Information.
(g) The Executive’s obligations under this Section 10
are in addition to, and not in limitation of, all other obligations
of confidentiality under the Company’s policies, general
lega
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