Exhibit 10.27.1
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 on April 28, 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 Steven L. Elfman (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
President - Network Operations and Wholesale; 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 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 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
President of Network Operations and Wholesale, 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 or such other officer of the
Company as may be designated by the Chief Executive Officer. 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 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 $650,000 (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 Chief Executive Officer 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 Chief Executive
Officer’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 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.
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Elfman Employment
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(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 Chief Executive Officer in his sole discretion
(“Target Bonuses”), and 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 Chief Executive
Officer (“LTSIP Target Award
Opportunities”).
(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.
(i) Sign-On Option Award .
The Compensation Committee authorized the grant to the Executive,
as of the Effective Date, of an option right (“the Sign-On
Option Award”) to purchase 435,730 shares of Common Stock at
an option price equal to 120% of the Market Value Per Share on the
Date of Grant. The Sign-On Option Award will be subject to the
terms and conditions of the option agreement attached hereto as
Exhibit A. Subject to the terms and conditions of the option
agreement, the Sign-On Option Award shall vest on the second
anniversary of the Date of Grant. 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.
(ii) Sign-On RSU Award . On
the Effective Date the Compensation Committee granted to the
Executive 129,032 restricted stock units (the “Sign-On RSU
Award”). The Sign-On RSU Award will be subject to the terms
and
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Elfman Employment
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conditions of the restricted stock
award agreement evidencing such grant attached here to as Exhibit B
and shall vest on the second anniversary of the Date of Grant.
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.
(iii) 2008 LTSIP . Subject to
approval by the Compensation Committee, the Executive will be
eligible to participate in the 2008 LTSIP at a target award of
$3,000,000.
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.
(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 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.
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Elfman Employment
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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.
(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;
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Elfman Employment
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(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
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 29(x)(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) 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 (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;
(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),
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Elfman Employment
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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;
(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; and
(vi) 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 31 st 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
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Elfman Employment
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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.
(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.
(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 12 months (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 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;” and
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Elfman Employment
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(ii) continue participation in the
Company’s group health plans at then-existing participation
and coverage levels for 12 months (measured from the
Executive’s Separation from Service), 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.
(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:
(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
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Elfman Employment
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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.
(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) The Executive further agrees
that all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, electronic, or other tangible material
containing or constituting Proprietary Information, whether created
by the Executive or others, which shall come into his custody or
possession, regardless of medium, shall be and are the exclusive
property of the Company to be used by him/her only in the
performance of his duties for the Company. All such materials or
copies thereof and all tangible things and other property of the
Company Group 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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Elfman Employment
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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 legal or equitable principles
or statutes.
(h) During the Employment Term and
following his termination of employment:
(i) the Executive shall not,
directly or indirectly, make or cause to be made any statements,
including but not limited to, comments in books or printed media,
to any third parties criticizing or disparaging the Company Group
or commenting on the character or business reputation of the
Company Group. Without the prior written consent of the Board,
unless otherwise required by law, the Executive shall not
(A) publicly comment in a manner adverse to the Company Group
concerning the status, plans or prospects of the business of the
Company Group or (B) publicly comment in a manner adverse to
the Company Group concerning the status, plans or prospects of any
existing, threatened or potential claims or litigation involving
the Company Group;
(ii) the Company shall comply with
its policies regarding public statements with respect to the
Executive and any such statements shall be deemed to be made by the
Company only if made or authorized by a member of the Board or a
senior executive officer of the Company; and
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Elfman Employment
Agreement
(iii) nothing herein precludes
honest and good faith reporting by the Executive to appropriate
Company or legal enforcement authorities.
(i) The Executive acknowledges and
agrees that a violation of the foregoing provisions of this
Section 10 would cause irreparable harm to the Company Group,
and that the Company’s remedy at law for any such violation
would be inadequate. In recognition of the foregoing, the Executive
agrees that, in addition to any other relief afforded by law or
this Agreement, including damages sustained by a breach of this
Agreement and any forfeitures under Section 9(g), and without
the necessity or proof of actual damages, the Company shall have
the right to enforce this Agreement by specific remedies, which
shall include, among other things, temporary and permanent
injunctions, it being the understanding of the undersigned parties
hereto that damages, the forfeitures described above and
injunctions shall all be proper modes of relief and are not to be
considered as alternative remedies.
11. Non-Competition . In
consideration of the Company entering into this Agreement, for a
period commencing on the Effective Date and ending on the
expiration of the Restricted Period:
(a) The Executive covenants and
agrees that the Executive will not, directly or indirectly, engage
in any activities on behalf of or have an interest in any
Competitor of the Company Group, whether as an owner, investor,
executive, manager, employee, independent consultant, contractor,
advisor, or otherwise. The Executive’s ownership of less than
one percent (1%) of any class of stock in a publicly traded
corporation shall not be a breach of this paragraph.
(b) A “Competitor” is
any entity doing business directly or indirectly (e.g., as an
owner, investor, provider of capital or otherwise) in the United
States including any territory of the United States (the
“Territory”) that provides products and/or services
that are the same or similar to the products and/or services that
are currently being provided at the time of Executive’s
termination or that were provided by the Company Group during the
two-year period prior to the Executive’s separation from
service with the Company Group.
(c) The Executive acknowledges and
agrees that due to the continually evolving nature of the Company
Group’s industry, the scope of its business and/or the
identities of Competitors may change over time. The Executive
further acknowledges and agrees that the Company Group markets its
products and services on a nationwide basis, encompassing the
Territory and that the restrictions imposed by this covenant,
including the geographic scope, are reasonably necessary to protect
the Company Group’s legitimate interests.
(d) The Executive covenants and
agrees that should a court at any time determine that any
restriction or limitation in this Section 11 is unreasonable
or unenforceable, it will be deemed amended so as to provide the
maximum protection to the Company Group and be deemed reasonable
and enforceable by the court.
12. Non-Solicitation . In
consideration of the Company entering into this Agreement, for a
period commencing on the Effective Date and ending on the
expiration of the Restricted Period, the Executive hereby covenants
and agrees that he shall not, directly or indirectly, individually
or on behalf of any other person or entity do or suffer any of the
following:
(a) hire or employ or assist in
hiring or employing any person who was at any time during the last
18 months of the Executive’s employment an employee,
representative or agent of any member of the Company Group or
solicit, aid, induce or attempt to solicit, aid, induce or
persuade, directly or indirectly, any person who is an employee,
representative, or agent of any member of the Company Group to
leave his or her employment with any member of the Company Group to
accept employment with any other person or entity;
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Elfman Employment
Agreement
(b) induce any person who is an
employee, officer or agent of the Company Group, or any of its
affiliated, related or subsidiary entities to terminate such
relationship;
(c) solicit any customer of the
Company Group, or any person or entity whose business the Company
Group had solicited during the 180-day period prior to termination
of the Executive’s employment for purposes of business which
is competitive to the Company Group within the Territory;
or
(d) solicit, aid, induce, persuade
or attempt to solicit, aid, induce or persuade any person or entity
to take any action that would result in a Change in Control of the
Company or to seek to control the Board in a material
manner.
(e) For purposes of this
Section 12, the term “solicit or persuade”
includes, but is not limited to, (i) initiating communications
with an employee of the Company Group relating to possible
employment, (ii) offering bonuses or additional compensation
to encourage an employee of the
