Exhibit 10.24
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this “Agreement”) is made and entered into
as of December 31, 2008 and amends and restates the Employment
Agreement (the “Original Employment Agreement”),
originally entered into as of May 1, 2008 (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 Robert Brust (the “Executive”)
(the Company and the Executive, collectively, the
“Parties,” and each, a “Party”). Certain
capitalized terms are defined in Section 29.
WITNESSETH
:
WHEREAS, the Executive serves as
Chief Financial 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 24 months commencing on the
Effective Date and shall continue through the second 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 90 days 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 nonrenewal. 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 Chief
Financial Officer 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 requested from time to time by the Board of Directors of
the Company (the “Board”), any committee or person
delegated by the Board or the Chief Executive Officer of the
Company (the “Chief Executive Officer”). In such
capacity, the Executive shall report directly to the Chief
Executive Officer of the Company. The Executive shall have such
duties, responsibility and authority as may be assigned to the
Executive from time to time by the Chief Executive Officer, the
Board or such other officer of the Company as may be designated by
the Chief Executive Officer or the Board.
(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, 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, any committee or person
designated by the Board, or the Chief Executive Officer, 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 Chief Executive
Officer, serve as a member of the governing board of any such
organization. Without the prior approval of the Board, the
Executive shall not serve in any executive capacity or as a member
of the governing board of any private or public for-profit company.
The Executive has resigned from the board of directors of any
public for-profit company on which he served except for the boards
set forth on Exhibit A hereto.
4. Compensation .
(a) Base Salary . During the
Employment Term, the Company shall pay to the Executive an annual
base salary of $1,000,000 (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, a Target
Bonus opportunity of 130% of the Executive’s Base Salary will
be pro rated for the period from the Effective Date to
December 31, 2008, and thereafter during the Employment Term
the Executive will participate at an annual Target Bonus
opportunity of 130% 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 from time to
time), and the Executive shall be entitled to receive full payment
of any award under the STIP, 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 shall not be
eligible for any award under the LTSIP in 2008 (except for the
sign-on awards under Section 4(d)) or 2009.
(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 respective
award agreements evidencing such grants and the applicable plan or
program.
(d) Sign-On Compensation
.
(i) Sign-On Cash Bonus Award
. The Company will pay the Executive a cash sign-on bonus in the
amount of $1,650,000 on the following payment schedule:
(1) $250,000 not later than 30 days after the Effective Date,
provided, however, that if the Executive does not remain employed
by the Company through the first anniversary of the Effective Date,
the Executive will
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repay the Company this amount upon
his termination of employment unless the Executive’s
employment is terminated by the Company without Cause;
(2) $700,000 as soon as administratively practicable after
December 31, 2008 (but not later than 30 days after such
date); provided, however, that if the Executive has a termination
of employment before December 31, 2008 for any reason other
than for cause, he shall receive a prorated bonus based on a
fraction, the numerator of which is the number of days from the
Effective Date to his termination of employment and the denominator
is the number of days from the Effective Date to December 31,
2008; and (3) $700,000 as soon as administratively practicable
after December 31, 2009 (but not later than 30 days after such
date); provided, however, that if the Executive has a termination
of employment after December 31, 2008 and before
December 31, 2009 for any reason other than for cause, he
shall receive a prorated bonus based on a fraction, the numerator
of which is the number of days from January 1, 2009 to his
termination of employment and the denominator is 365. If the
Executive is terminated for Cause before the payment of a bonus
payment to be made under this Section 4(d)(i), the Executive
will not be entitled to such unpaid bonus payment.
(ii) Sign-On Option Award .
On the Effective Date the Compensation Committee granted to the
Executive an option to purchase 677,201 shares of the
Company’s Common Stock under the LTSIP (the “Sign-On
Option Award”). The Sign-On Option Award will be subject to
terms and conditions of the option agreement attached hereto as
Exhibit B. Except as otherwise provided in the Executive’s
Option 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 469,484 restricted stock units under the LTSIP (the
“Sign-On RSU Award”). The Sign-On RSU Award will be
subject to the terms and conditions of the restricted stock unit
agreement evidencing such grant attached as Exhibit C. 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.
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, pension and profit sharing, 401(k) and employee welfare
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.
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(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 in accordance
with the Company’s policy generally applicable to senior
executives. The duration of such vacations and the time or times
when they shall be taken will be determined by the Executive in
consultation with the Company.
8. Place of Performance . In
connection with his employment by the Company, the Executive shall
be based at the principal executive offices of the Company in the
vicinity of Overland Park, Kansas (the “Place of
Performance”), except for travel reasonably required for
Company business. 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 secondary
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 secondary 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.
The Executive established, no later than July 1, 2008, a
secondary residence in the area surrounding the Executive’s
Place of Performance.
For each year during the Initial
Employment Term, the Executive will be entitled to receive up to 35
round-trip personal domestic flights on either, at the
Company’s discretion, Company aircraft or charter
aircraft.
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) receive a Bonus
Award for the remainder of the Employment Term (pro rated for any
period of less than twelve months), and computed at the lesser of
his Target Bonus for such period or actual performance, and such
payment shall be payable in accordance with the provisions of the
STIP in the calendar year in which the Bonus Award is determined,
and in all events, not later than December 31
st
of the year in
which such award is determined;
(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, but
not beyond the end of the Employment Term, comparable to the terms
in effect from time to time for the Company’s senior
executives, including any co-payment and premium payment
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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
(A) subject to Section 9(b)(iv), 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; and
(iv) continue participation at the
Executive’s sole cost in the Company’s group health
plans at then-existing participation and coverage levels for the
remainder, if any, of the Employment Term following the period of
continuation coverage the Executive would be entitled to, if any,
pursuant to Section 9(b)(iii) above, 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
such 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;
and
(v) continue participation in the
Company’s employee life insurance plans at then-existing
participation and coverage levels for the remainder of the
Employment Term, 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.
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).
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(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, as modified
below if applicable, 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.
(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.
To the extent that
the Executive is not a Participant in the CIC Severance Plan at the
time of Separation from Service, the Executive shall be entitled to
severance compensation and benefits pursuant to the terms of
Section 9(b), except that a Bonus Award for the remainder of
the Employment Term (pro rated for any period of less than twelve
months), will be computed at his Target Bonus for such period, and
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 if (A) 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) the
Executive is a Specified Employee, with respect to any amount
payable by reason of 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 the missed installments during such period on
the first day of the seventh month following the date of the
Executive’s Separation from Service.
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(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.
(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 lesser of 12 months or the remainder of the
Employment Term (reduced by any amounts paid under a long-term
disability plan (“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 constitutes 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 constitutes deferred compensation within
the meaning of Section 409A of the Code that the 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 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;” and
(ii) continue participation in the
Company’s group health plans at then-existing participation
and coverage levels for the lesser of 12 months (measured from the
Executive’s Separation from Service) or the remainder of the
Employment Term comparable to the terms in effect from time to time
for the Company’s senior executives, including any co-payment
and premium payment requirements.
(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
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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:
(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) or
maintained in the mind or memory of the Executive 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) the Proprietary Information of
the Company Group gained by the Executive during the
Executive’s association with the Company Group was or will be
developed by and/or for the Company Group through substantial
expenditure of time, effort and money and constitutes valuable and
unique property of the Company Group;
(iii) reasonable efforts have been
put forth by the Company Group to maintain the secrecy of its
Proprietary Information;
(iv) such Proprietary Information is
and will remain the sole property of the Company Group;
and
(v) 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.
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(b) The Executive further
acknowledges and agrees that he will take all affirmative steps
r