|
Exhibit 10.1
AGREEMENT AND GENERAL RELEASE
THIS Agreement made as of the 19th day of December 2006, between
Embarq Corporation, a Delaware corporation (the "Company"), and
Michael B. Fuller (the "Executive").
I. BACKGROUND
A. The Company, or one of it subsidiaries, currently employs
Executive as its Chief Operating Officer and the Company (as
successor to Sprint Corporation) and Executive are parties to that
certain Special Compensation and Non-Compete Agreement, dated
August 12, 1997 (the "Non-Compete Agreement"), and that
certain Contingency Employment Agreement, dated August 12,
1997, as amended June 30, 1999 (the "Contingency Employment
Agreement"), and the Company has assumed all obligations to
Executive under the Sprint Corporation January 2005 Retention
Program (the "Retention Program").
B. The Company and Executive wish to enter into an agreement
whereby (i) Executive agrees to additional restrictive
covenants and provides a release by Executive of the Company, as
further described herein, and (ii) assuming that Executive
complies with, executes, and does not revoke this Agreement,
Company agrees to provide Executive with the benefits and
entitlements described below.
II. SUBSTANTIVE PROVISIONS
In consideration of the mutual promises contained in this
Agreement, the Company and Executive, intending to be legally
bound, agree as follows:
1. The Company and Executive have mutually agreed that
Executive’s position will be eliminated, effective after
December 31, 2006, and that, after transitioning his duties,
he will leave the Company on January 12, 2007 (the "Separation
Date"). The Company and Executive also agree that this Agreement
will constitute the written notice of termination as required by
section 1 of the Non-Compete Agreement. Executive shall cease to be
an executive officer after December 31, 2006 and shall resign
from all other officer and director positions. Thereafter, until
the Separation Date, he shall transition his duties and
responsibilities to other executives designated by the
Company’s Chief Executive Officer but shall have no executive
responsibilities or power to bind the Company after
December 31, 2006. Executive agrees that the Contingency
Employment Agreement is terminated and of no further force or
effect, nor does Executive have any further right or claim under
the Contingency Employment Agreement, on the date of this
Agreement.
2. In exchange for Executive’s agreement to additional
restrictive covenants and the release by Executive as to any claims
that might be asserted by the Executive, as further described
herein, the Company will accelerate the vesting of
Executive’s unvested 2006 equity grants at the end of
Executive’s severance period which shall be on July 12,
2008.
3. In exchange for the payments and benefits set forth in
Section 2 above, Executive agrees as follows:
EXECUTION COPY
(a) Until July 12, 2008, Executive shall not engage in
Competitive Employment, whether paid or unpaid and whether as a
consultant, employee, or otherwise including, without limitation,
the ownership of any interest in, the provision of any financing,
management or advisory services to, any connection with or being a
principal, partner or agent of any Competitor, provided that the
Executive may passively own less than 1% of the outstanding shares
of any Competitor whose shares are traded in the public market. For
the purposes of this Agreement, "Competitive Employment" shall mean
any business that competes with any material portion of the
business of the Company as its business (including its geographic
scope) exists from time to time and "Competitor" shall mean any
business that competes with any material portion of the
Company’s business as its business (including its geographic
scope) exists from time to time;
(b) By reason of his employment by and service to the Company,
he has had access to confidential information of the Company, and,
therefore, hereby reaffirms his obligations under, and agrees that
he will continue to be subject to, the terms of Non-Compete
Agreement, including section 2.02;
(c) Consistent with Executive’s business and personal
affairs, after the Separation Date, he will assist the Company in
the defense of any claims or potential claims that may be made or
threatened to be made against it in any action, suit or proceeding,
whether civil, criminal, administrative, or investigative
("Proceeding"), and will assist the Company in the prosecution of
any claims that may be made by the Company in any Proceeding, to
the extent that such claims may relate to Executive’s
services provided to the Company or are within Executive’s
knowledge. Executive agrees, unless precluded by law, to promptly
inform the Company if Executive is asked to participate (or
otherwise become involved) in any Proceeding. Executive also
agrees, unless precluded by law, to promptly inform the Company if
Executive is asked to assist in any investigation (whether
governmental or private) of the Company (or its actions),
regardless of whether a lawsuit has then been filed against the
Company with respect to such investigation. The Company agrees to
reimburse Executive for all of Executive’s reasonable
out-of-pocket expenses associated with such assistance, including
travel expenses and any attorneys’ fees; and, if Executive is
required to spend more than two full days on any one Proceeding the
Company will pay Executive a per diem amount of $3,000 for each
full day thereafter;
(d) Until July 12, 2008 , Executive will not,
without prior written consent of the Company, in any manner,
solicit, request, advise, or assist any other person to undertake
any action that would be reasonably likely to, or is intended to,
result in a Change in Control (as defined in section 6.02 of the
Non-Compete Agreement) or (b) seek to control in any material
manner the Bo
|
