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EMBARQ CORPORATION EXECUTIVE SEVERANCE PLAN

Termination Severance Agreement

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This Termination Severance Agreement involves

EMBARQ CORPORATION

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Title: EMBARQ CORPORATION EXECUTIVE SEVERANCE PLAN
Governing Law: Kansas     Date: 10/30/2008
Industry: Communications Services     Sector: Services

EMBARQ CORPORATION EXECUTIVE SEVERANCE PLAN, Parties: embarq corporation
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Exhibit 10.1

EMBARQ CORPORATION

EXECUTIVE SEVERANCE PLAN

 

i


 

 

 

 

 

ARTICLE I

  

PURPOSE AND TERM OF PLAN

  

1

 

 

 

Section 1.01

  

Purpose of the Plan

  

1

 

 

 

Section 1.02

  

Term of the Plan

  

1

 

 

 

ARTICLE II

  

DEFINITIONS

  

1

 

 

 

Section 2.01

  

“Base Salary”

  

1

 

 

 

Section 2.02

  

“Board”

  

1

 

 

 

Section 2.03

  

“Cause”

  

1

 

 

 

Section 2.04

  

“Change in Control”

  

2

 

 

 

Section 2.05

  

“CIC Termination”

  

3

 

 

 

Section 2.06

  

“COBRA”

  

3

 

 

 

Section 2.07

  

“Code”

  

3

 

 

 

Section 2.08

  

“Committee”

  

3

 

 

 

Section 2.09

  

“Company”

  

3

 

 

 

Section 2.10

  

“Competitive Employment”

  

3

 

 

 

Section 2.11

  

“Competitor”

  

4

 

 

 

Section 2.12

  

“Effective Date”

  

4

 

 

 

Section 2.13

  

“Eligible Employee”

  

4

 

 

 

Section 2.14

  

“Employee”

  

4

 

 

 

Section 2.15

  

“Employer”

  

4

 

 

 

Section 2.16

  

“ERISA”

  

5

 

 

 

Section 2.17

  

“Exchange Act”

  

5

 

 

 

Section 2.18

  

Good Reason Resignation”

  

5

 

 

 

Section 2.19

  

“Involuntary Termination”

  

5

 

 

 

Section 2.20

  

“Non-CIC Termination”

  

6

 

 

 

Section 2.21

  

“Non-Comparable Position”

  

6

 

 

 

Section 2.22

  

“Non-Compete Period”

  

6

 

 

 

Section 2.23

  

“Non Executive Separation Plan”

  

6

 

 

 

Section 2.24

  

“Participant”

  

6

 

 

 

Section 2.25

  

“Permanent Disability”

  

6

 

 

 

Section 2.26

  

“Plan”

  

6

 

 

 

Section 2.27

  

“Plan Administrator”

  

6

 

 

 

Section 2.28

  

“Release”

  

7

 

i


 

 

 

 

 

 

 

 

Section 2.29

  

“Service”

  

7

 

 

 

Section 2.30

  

“Severance Benefit”

  

7

 

 

 

Section 2.31

  

“Severance Period”

  

7

 

 

 

Section 2.32

  

“Specified Employee”

  

7

 

 

 

Section 2.33

  

“Subsidiary”

  

7

 

 

 

Section 2.34

  

“Termination Date”

  

7

 

 

 

Section 2.35

  

“Voluntary Resignation”

  

8

 

 

 

Section 2.36

  

“Year of Service”

  

8

 

 

 

ARTICLE III

  

PARTICIPATION AND ELIGIBILITY FOR BENEFITS

  

8

 

 

 

Section 3.01

  

Participation

  

8

 

 

 

Section 3.02

  

Conditions

  

8

 

 

 

ARTICLE IV

  

DETERMINATION OF SEVERANCE BENEFITS

  

9

 

 

 

Section 4.01

  

Non-CIC Termination

  

9

 

 

 

Section 4.02

  

CIC Termination

  

10

 

 

 

Section 4.03

  

Voluntary Resignation; Termination for Death or Permanent Disability

  

13

 

 

 

Section 4.04

  

Termination for Cause

  

13

 

 

 

Section 4.05

  

Approved Military Leave

  

13

 

 

 

Section 4.06

  

Reduction of Severance Benefits

  

13

 

 

 

Section 4.07

  

Certain Terminations

  

13

 

 

 

ARTICLE V

  

METHOD OF PAYMENT AND LIMITATION ON BENEFITS

  

14

 

 

 

Section 5.01

  

Method of Payment

  

14

 

 

 

Section 5.02

  

409(A) Delay

  

14

 

 

 

Section 5.03

  

Limitation on Benefits

  

14

 

 

 

ARTICLE VI

  

RESTRICTIVE COVENANTS

  

15

 

 

 

Section 6.01

  

Principles of Business Conduct

  

15

 

 

 

Section 6.02

  

Proprietary Information

  

15

 

 

 

Section 6.03

  

Non-Competition

  

16

 

 

 

Section 6.04

  

Inducement of Employees, Customers and Others

  

16

 

 

 

Section 6.05

  

No Adverse Actions

  

16

 

 

 

Section 6.06

  

Return of Property

  

17

 

 

 

Section 6.07

  

Non-Disparagement

  

17

 

 

 

Section 6.08

  

Assistance with Claims

  

17

 

ii


 

 

 

 

 

 

 

 

Section 6.09

  

Reasonableness

  

17

 

 

 

Section 6.10

  

Equitable Relief

  

18

 

 

 

Section 6.11

  

Survival of Provisions

  

18

 

 

 

ARTICLE VII

  

COMMITTEE; PLAN ADMINISTRATOR

  

18

 

 

 

Section 7.01

  

Authority and Duties

  

18

 

 

 

Section 7.02

  

Compensation of the Plan Administrator and the Committee

  

19

 

 

 

Section 7.03

  

Records, Reporting and Disclosure

  

19

 

 

 

Section 7.04

  

Discretion

  

19

 

 

 

ARTICLE VIII

  

AMENDMENT, SUSPENSION AND TERMINATION

  

19

 

 

 

Section 8.01

  

Amendment, Suspension and Termination

  

19

 

 

 

Section 8.02

  

Continuation of Plan following a Change in Control

  

20

 

 

 

ARTICLE IX

  

CLAIMS PROCEDURES

  

20

 

 

 

Section 9.01

  

Claims

  

20

 

 

 

Section 9.02

  

Initial Claim

  

20

 

 

 

Section 9.03

  

Appeals of Denied Administrative Claims

  

21

 

 

 

Section 9.04

  

Appointment of the Named Appeals Fiduciary

  

21

 

 

 

ARTICLE X

  

MISCELLANEOUS

  

22

 

 

 

Section 10.01

  

Waiver of Jury Trial

  

22

 

 

 

Section 10.02

  

Forum Selection

  

22

 

 

 

Section 10.03

  

Nonalienation of Benefits

  

22

 

 

 

Section 10.04

  

Notices

  

22

 

 

 

Section 10.05

  

No Mitigation

  

22

 

 

 

Section 10.06

  

No Contract of Employment

  

23

 

 

 

Section 10.07

  

Severability of Provisions

  

23

 

 

 

Section 10.08

  

Headings and Captions

  

23

 

 

 

Section 10.09

  

Gender and Number

  

23

 

 

 

Section 10.10

  

Unfunded Plan

  

23

 

 

 

Section 10.11

  

Payments to Incompetent Persons

  

23

 

 

 

Section 10.12

  

Lost Payees

  

23

 

 

 

Section 10.13

  

Section 409(A) Compliance

  

23

 

 

 

Section 10.14

  

Controlling Law

  

24

 

 

 

EXHIBIT A

  

Participation Agreement

  

A

 

 

Release

  

1

 

 

Arbitration Provision

  

6

 

iii


ARTICLE I

PURPOSE AND TERM OF PLAN

Section 1.01 Purpose of the Plan . The purposes of the Plan are to attract, retain and motivate Eligible Employees upon whom, in large measure, the substantial progress, growth and profitability of the Company depends, as well as, to provide them with a measure of financial protection and assistance in the transition from Embarq employment in the event the Eligible Employee’s employment with the Company or a Subsidiary is terminated due to a Non-CIC Termination or a CIC Termination. The Plan is not intended to be an “employee pension benefit plan” or “pension plan” within the meaning of section 3(2) of ERISA. Rather, this Plan is intended to be a “welfare benefit plan” within the meaning of Section 3(1) of ERISA and to meet the descriptive requirements of a plan constituting a “severance pay plan” within the meaning of regulations published by the Secretary of Labor at Title 29, CFR, section 2510.3-2(b). Accordingly, the benefits paid by the Plan are not deferred compensation and no employee shall have a vested right to such benefits.

Section 1.02 Term of the Plan . The Plan shall generally be effective as of the Effective Date. The Plan supersedes, and does not duplicate, the provisions of the Non-Executive Separation Plan in any case in which an Eligible Employee would otherwise be entitled to severance or related benefits under both this Plan and the Non-Executive Separation Plan arising out of the Eligible Employee’s Non-CIC Termination. Moreover, this Plan supersedes any other plan, program, arrangement or agreement providing an Eligible Employee with severance or related benefits, including the Non Executive Separation Plan, with respect to an Eligible Employee’s CIC Termination or Non-CIC Termination to the extent provided in Section 3.01. The Plan shall continue until terminated pursuant to Article VIII of the Plan.

ARTICLE II

DEFINITIONS

Section 2.01 Base Salary ” means the annual rate of base salary in effect on the Participant’s Termination Date or the date of the Change in Control, if higher.

Section 2.02 Board ” means the Board of Directors of the Company, or any successor thereto, or a committee thereof specifically designated for purposes of making determinations hereunder.

Section 2.03 Cause ” means an Eligible Employee’s (i) willful and continued failure to substantially perform his or her duties, (ii) willfully engaging in conduct that is a serious violation of the Employer’s Principles of Business Conduct, (iii) willfully engaging in conduct that is demonstrably and materially injurious to the Employer or (iv) willful violation of any of the restrictive covenants found in Article VI. The Committee shall determine Cause.

 

1


Section 2.04 Change in Control ” means any of the following events:

(a) the acquisition , directly or indirectly, by any “person” or “group” (as those terms are defined in sections 3(a)(9), 13(d), and 14(d) of the Exchange Act and the rules thereunder, including Rule 13d-5(b)) of “beneficial ownership” (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors (‘ voting securities ”) of the Company that represent 30% or more of the combined voting power of the Company’s then outstanding voting securities, other than

(i) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or

(ii) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly, by the stockholders of at least 50% of the voting power of the Company’s then outstanding securities in substantially the same proportions as their ownership of stock of the Company, or

(iii) an acquisition of voting securities pursuant to a transaction described in Section 2.04(c) below that would not be a Change in Control under Section 2.04(c);

(b) a change in the composition of the Board that causes less than a majority of the directors of the Company to be directors that meet one or more of the following descriptions:

(i) a director who has been a director of the Company for a continuous period of at last 24 months (or, if less, since the date the shares of Company common stock were listed on the New York Stock Exchange) or,

(ii) a director whose election or nomination as a director was approved by a vote of at least two-thirds of the then directors described in subsections 2.04(b)(i), (ii) or (iii) by prior nomination or election, but excluding, for the purpose of this subsection (ii), any director whose initial assumption to office occurred as a result of an actual or threatened (y) election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or group other than the Board or (z) tender offer, merger, sale of substantially all of the Company’s assets, consolidation, reorganization or business combination that would be a Change in Control under Section 2.04(c) on consummation thereof, or

(iii) who were serving on the Board as result of the consummation of a transaction described in Section 2.04(c) that would not be a Change in Control under Section 2.04(c);

(c) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of

(i) a consolidation, merger, reorganization or business combination or

 

2


(ii) a sale or disposition of all or substantially all of the Company’s assets or

(iii) the acquisition of assets or stock of another entity,

in each case, other than in a transaction, (x) that results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “ Successor Entity ”)) directly or indirectly, at least 50% of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction and (y) after which more than 50% of the members of the Board of the Successor Entity were members of the Board at the time of the Board’s approval of the transaction or other action of the Board approving the transaction (or whose election or nomination was approved by a vote of at least two-thirds of the members who were members of the Board at that time), and (z) after which no person or group beneficially owns voting securities representing 30% or more of the combined voting power of the Successor Entity; provided, however, no person or group shall be treated for purposes of this subsection (z) as beneficially owning 30% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company before the consummation of the transaction; or

(d) a liquidation or dissolution of the Company other than in connection with a transaction described in subsection 2.04(c) above that would not be a Change in Control thereunder.

Section 2.05 CIC Termination ” means an Eligible Employee’s Involuntary Termination or Good Reason Resignation that occurs within 6 months before or one year after the date of a Change in Control.

Section 2.06 COBRA ” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

Section 2.07 Code ” means the Internal Revenue Code of 1986, as amended.

Section 2.08 Committee ” means the Compensation Committee of the Board or such other committee appointed by the Board to assist the Company in making determinations required under the Plan in accordance with its terms. The “Committee” may delegate its authority under the Plan to one or more individuals or another committee which may or may not include members of the Board.

Section 2.09 Company ” means Embarq Corporation and any successor thereto.

Section 2.10 Competitive Employment ” means the direct or indirect performance of duties or responsibilities (whether paid or unpaid and whether as a consultant, employee or otherwise) for a Competitor, 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 Eligible Employee may passively own less than 1% of the outstanding shares of any Competitor.

 

3


Section 2.11 Competitor ” means any one or more of the following:

(a) any person doing business in the United States or any of its Divisions ( i.e., any distinct group or unit organized as a segment or portion of a person that is devoted to the production, provision or management of a common product or service or group of related products or services, regardless of whether the group is organized as a legally distinct entity) employing the Eligible Employee if the person or its Division receives at least 15% of its gross U.S. operating revenues from a line of business in which the Company receives at least 3% of its gross U.S. operating revenues;

(b) any person doing business in the United States or any of its Divisions employing the Eligible Employee, operating for less than five years a line of business from which the Company derives at least 3% of its gross U.S. operating revenues, notwithstanding such person’s or Division’s lack of substantial revenues in such line of business; or

(c) any person doing business in the United States or any of its Divisions employing the Eligible Employee if the person or its Division receives at least 15% of its gross U.S. operating revenues from a line of business in which the Company has operated for less than five years, notwithstanding the Company’s lack of substantial revenues in such line of business.

For purposes of the foregoing, gross U.S. operating revenues of the Company and such other person shall be those of the Company or such person, together with their consolidated affiliates (with whom the financial statements of such person are required, under generally accepted accounting principles, to be reported on a consolidated basis), but those of the Division then employing and the Division proposing to employ the Eligible Employee shall each be on a stand-alone basis, all measured by the most recent available financial information of both the Company and such other person or Division at the time the Eligible Employee accepts, or proposes to accept employment with or to otherwise perform services for such person. If financial information is not publicly available or is inadequate for purposes of applying this definition, the burden shall be on the Eligible Employee to demonstrate that such person is not a Competitor.

Section 2.12 Effective Date ” means July 1, 2007.

Section 2.13 Eligible Employee ” means an Employee who is in the Director job tier or above. If there is any question as to whether an Employee is deemed an Eligible Employee for purposes of the Plan, the Committee shall make the determination.

Section 2.14 Employee ” means an individual employed by the Employer as a common law employee, and shall not include any person working for the Employer through a temporary service or on a leased basis or who is hired by the Employer as an independent contractor, consultant, or otherwise as a person who is not an employee, or not treated as such, for purposes of withholding federal employment taxes, as evidenced by payroll records or a written agreement with the individual, regardless of any contrary governmental or judicial determination or holding relating to such status or tax withholding. Any change of characterization of an individual shall take effect on the actual date of such change without regard to any retroactive recharacterization.

Section 2.15 Employer ” means the Company and its Subsidiaries.

 

4


Section 2.16 ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and regulations thereunder.

Section 2.17 Exchange Act ” means the Securities Exchange Act of 1934, as amended.

Section 2.18 Good Reason Resignation ” means an Eligible Employee’s written resignation within 90 days of the occurrence of any of the following circumstances that occurs within 6 months before or 12 months after the date of a Change in Control, unless such circumstances are fully corrected by the Employer within 30 days following written notice from the Eligible Employee:

(a) a substantial adverse alteration in the nature or status of the Eligible Employee’s duties from those immediately before the Change in Control or any reduction in the Eligible Employee’s job grade or tier, if applicable;

(b) a reduction in the Eligible Employee’s Base Salary, except for an across the board reduction similarly affecting all Eligible Employees of the Company in the affected Eligible Employee’s job tier, of more than 10% of the Eligible Employee’s Base Salary in effect on the date of the Change in Control;

(c) a reduction in the Eligible Employee’s total incentive compensation opportunity (which includes short term target incentive opportunity and long term incentive target opportunity), except for an across the board reduction similarly affecting all Eligible Employees of the Company in the affected Eligible Employee’s job tier, of more than 20% of the Eligible Employee’s total incentive compensation opportunity in effect on the date of the Change in Control;

(d) relocation of the Eligible Employee’s principal place of business to a location more than 75 miles from its current location;

(e) the Company’s failure to provide the Eligible Employee with retirement, health, welfare and fringe benefits substantially similar in the aggregate to those he or she enjoyed under the Company’s benefit plans in which the Eligible Employee was participating at the time of the Change in Control, unless an equitable arrangement has been made on a basis not materially less favorable both in terms of the amount of benefits and the level of participation relative to other similarly situated executives, except for an across the board reduction similarly affecting all Eligible Employees of the Company; or

(f) the Company’s failure to obtain an agreement from any successor to assume and agree to continue this Plan for at least one year with respect to Eligible Employees who were employed by the Employer at the time of a Change in Control. If the Company elects not to correct such events or conditions or otherwise fails to so cure such events or conditions within the 30-day cure period, the eligible Employee may terminate his employment with the Company based upon the Eligible Employee’s Good Reason Resignation within 30 days after the expiration of the “cure” period. The decision to terminate employment must result in actual termination of employment, in order to be considered a Good Reason Resignation.

Section 2.19 Involuntary Termination ” means a termination of the Eligible Employee’s employment, initiated by the Employer for any reason other than Cause, Permanent Disability or death. An Eligible Employee’s refusal to accept a Non-Comparable Position is considered an Involuntary Termination.

 

5


Section 2.20 Non-CIC Termination ” means an Eligible Employee’s Involuntary Termination of employment prior to a Change in Control.

Section 2.21 Non-Comparable Position ” means a new job position offered to an Eligible Employee that reflects either of the following circumstances:

(a) a reduction in the Eligible Employee’s Base Salary, except for an across the board reduction similarly affecting all Eligible Employees of the Company in the affected Eligible Employee’s job tier, of more than 10% of the Eligible’s Employee’s Base Salary in effect immediately prior to the new job position;

(b) a reduction in the Eligible Employee’s total incentive compensation opportunity (which includes short term target incentive opportunity and long term incentive target opportunity), except for an across the board reduction similarly affecting all Eligible Employees of the Company in the affected Eligible Employee’s job tier, of more than 20% of the Eligible Employee’s total incentive compensation opportunity in effect immediately prior to the new job position; or

(c) for Eligible Employees in the Company’s director job tier at the time of the new job offer, relocation of the Eligible Employee’s principal place of business to a location more than 75 miles from its current location.

Section 2.22 Non-Compete Period ” means the period of time, as specified in Section 6.03(c), during which certain of the restrictive covenants in Article VI shall be enforceable.

Section 2.23 Non Executive Separation Plan ” means the Embarq Corporation Separation Plan, which plan is superseded by this Plan with respect to each Eligible Employee’s participation in such plan in the event of any Participant’s termination of employment.

Section 2.24 Participant ” means any Eligible Employee who meets the requirements of Article III and thereby becomes eligible for salary continuation and other benefits under the Plan.

Section 2.25 Permanent Disability ” means that an Eligible Employee has a permanent and total incapacity from engaging in any employment for the Employer for physical or mental reasons. A “Permanent Disability” shall be deemed to exist if the Eligible Employee is judged to satisfy the requirements for disability benefits under the Company’s long-term disability plan or the requirements for disability benefits under the Social Security law then in effect.

Section 2.26 Plan ” means the Embarq Corporation Executive Severance Plan, as set forth herein, as the same may be amended from time to time.

Section 2.27 Plan Administrator ” means one or more individuals appointed by the Committee to administer the terms of the Plan as set forth herein and if no individual is appointed by the Committee to serve as the Plan Administrator for the Plan, the Plan Administrator shall be the Senior Vice President of Human Resources (or the equivalent).

 

6


Notwithstanding the preceding sentence, in the event the Plan Administrator is entitled to Severance Benefits under the Plan, the Committee or its delegate shall act as the Plan Administrator for purposes of administering the terms of the Plan with respect to the Plan Administrator. The Plan Administrator may delegate all or any portion of its authority under the Plan to any other person(s).

Section 2.28 Release ” means the Separation of Employment Agreement and General Release, substantially in the form attached hereto as Exhibit B , as the same may be amended from time to time.

Section 2.29 Service ” means the total number of years and completed months the Participant was an Employee of the Employer. Service with any predecessor employer or with a Subsidiary prior to the Subsidiary’s becoming part of the Employer shall be recognized only to the extent specified in the merger or acquisition documentation. Periods of authorized leave of absence, such as military leave, will be included in Service only to the extent required by applicable law. Any period of employment with the Company, a Subsidiary, or a predecessor employer for which an Eligible Employee previously received severance benefits, shall be excluded from Service.

Section 2.30 Severance Benefit ” means the salary replacement amounts and other benefits that a Participant is eligible to receive pursuant to Article IV of the Plan.

Section 2.31 Severance Period ” means the period of time for which a Participant is entitled to receive Severance Benefits pursuant to Article IV of the Plan.

Section 2.32 Specified Employee ” means (i) an officer of the Company or its Subsidiaries having annual compensation greater than $135,000 (adjusted for inflation as described in section 416(i) of the Code), (ii) a 5 percent owner of the Company and its Subsidiaries, or (iii) a one percent owner of the Company and its Subsidiaries who has annual compensation from the Company and its Subsidiaries greater than $150,000, as determined by the Committee in accordance with section 409A of the Code. The number of officers who are considered Specified Employees shall be limited to 50 employees as described in section 416(i) of the Code. The Committee shall determine the Specified Employees each year in accordance with section 416(i) of the Code, the “specified employee” requirements of section 409A of the Code, and applicable regulations. Effective January 1, 2008, Specified Employees shall be identified as of December 31 of each year with respect to the 12-month period beginning on the next following April 1.

Section 2.33 Subsidiary ” means (i) a subsidiary of the Company (wherever incorporated), (ii) any separately organized business unit, whether or not incorporated, of the Company, and (iii) any employer that is required to be aggregated with the Company pursuant to section 414 of the Code and regulations issued thereunder.

Section 2.34 Termination Date ” means the date on which the active employment of the Eligible Employee by the Employer is severed, whether by reason of an Involuntary Termination, Voluntary Resignation, Good Reason Resignation or Termination for Cause.

 

7


Section 2.35 Voluntary Resignation ” means any retirement or termination of employment that is not initiated by the Employer other than a Good Reason Resignation.

Section 2.36 Year of Service ” means each completed year of Service.

ARTICLE III

PARTICIPATION AND ELIGIBILITY FOR BENEFITS

Section 3.01 Participation . Each Eligible Employee who incurs a CIC Termination or a Non-CIC Termination and who satisfies the conditions of Section 3.02 shall be a Participant and shall receive the Severance Benefits described in the Plan. Participation in the Plan is expressly conditioned upon the Eligible Employee executing a Participation Agreement, substantially in the form attached hereto as Exhibit A , pursuant to which the Eligible Employee agrees to be bound by the restrictive covenants set forth in Article VI as of the date of execution of the Participation Agreement. If an Eligible Employee is a party to an employment agreement with the Employer pursuant to which he or she is entitled to severance benefits upon his or her termination of employment, such Eligible Employee must agree to forego the severance benefits provided under the employment agreement and affirmatively elect to participate in the Plan by executing a Participation Agreement. Upon execution of a Participation Agreement, such Eligible Employee’s employment agreement shall be null and void. An Eligible Employee shall not be eligible to receive any other severance benefits from the Employer on account of a CIC Termination or a Non-CIC Termination, including pursuant to the Non Executive Separation Plan, unless otherwise provided in this Plan.

Section 3.02 Conditions .

(a) Eligibility for any Severance Benefits is expressly conditioned on the Eligible Employee’s (i) execution of a Release in connection with his or her termination of employment with the Employer; (ii) compliance with all the terms and conditions of such Release; (iii) execution of a Participation Agreement binding the Eligible Employee to the restrictive covenants set forth in Article VI during and after the Participant’s employment with the Employer; (iv) compliance with all the terms and conditions of such Participation Agreement and the restrictive covenants set forth in Article VI; (v) execution of a written agreement that authorizes the deduction of amounts owed to the Employer prior to the payment of any Severance Benefit (or in accordance with any other schedule as the Plan Administrator may determine to be appropriate); and (vi) acknowledgement that all decisions and determinations of the Board, the Committee and the Plan Administrator shall be final and binding on the Eligible Employee, his or her beneficiaries and any other person having or claiming an interest under the Plan on his or her behalf.

(b) If the Plan Administrator determines that the Participant has not fully complied with any of the terms of the Plan, the Participation Agreement and/or the Release, the Plan Administrator, acting on behalf of the Company, may deny Severance Benefits not yet in pay status or discontinue the payment of the Participant’s Severance Benefits and may require the Participant to repay any portion of any Severance Benefits already received under the Plan,

 

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by providing written notice of such repayment obligation to the Participant. If the Plan Administrator notifies a Participant that repayment of all or any portion of the Severance Benefit received under the Plan is required, such amounts shall be repaid within 30 calendar days of the date the written notice is sent. Any remedy under this subsection (b) shall be in addition to, and not in place of, any other remedy, including injunctive relief, that the Company may have.

ARTICLE IV

DETERMINATION OF SEVERANCE BENEFITS

Section 4.01 Non-CIC Termination . The Severance Benefits to be provided to a Participant who incurs a Non-CIC Termination and becomes a Participant shall be as follows:

(a) Base Salary . The Participant shall receive his or her Base Salary for the Severance Period applicable to the Participant as follows:

(i) If the Participant is a Director, he or she shall be entitled to receive 6 weeks of Base Salary plus an additional 2 weeks of Base Salary for each Year of Service up to a maximum of 52 weeks.

(ii) If the Participant is a Vice President, he or she shall be entitled to receive 12 weeks of Base Salary plus an additional 2 weeks of Base Salary for each Year of Service up to a maximum of 52 weeks.

(iii) If the Participant is a Senior Vice President or above, he or she shall be entitled to receive 52 weeks of Base Salary.

(b) Short-Term Incentive Payment . The Participant shall receive an additional, single lump sum payment based on his target opportunity under the Short-Term Incentive Program equal to 80% of the Participant’s target opportunity for the fiscal year in which the Termination Date occurs, prorated based on the length of the Severance Period.

(c) Continued Employee Benefits . All Participants shall continue to be eligible to participate in the Company’s Flexible Benefit Program (or successor thereto, but excluding participation in the supplemental long-term disability plan) and the Employee Assistance Program (or generally comparable coverage) for himself or herself and, where applicable, his or her eligible dependents, as the same may be changed from time to time for employees of the Employer generally, as if the Participant had continued in employment during the Severance Period. In accordance with the provisions of the Company’s Short-Term Disability Plan and the Company’s Basic Long-Term Disability Plan, a Participant shall not be eligible to participate in or receive benefits from these plans during the Severance Period. The Participant shall be responsible for the payment of the employee portion of the contributions that are required during the Severance Period and such contributions shall be made within the time period and in the amounts that Employees are required to pay to the Employer for similar coverage. The Participant’s failure to pay the applicable contributions shall result in the cessation of the applicable coverage for the Participant and his or her eligible dependents. Notwithstanding any other provision of the Plan to the contrary, in the event that a Participant commences employment with another company at any time during the Severance Period, the

 

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Participant will cease receiving coverage under the Employer’s benefit plans if eligible for coverage under the other company’s benefit plans. Within 30 days of a Participant’s commencement of employment with another company, the Participant shall provide the Company written notice of such employment and provide information to the Company regarding the benefits provided to the Participant by his or her new employer. The COBRA continuation coverage period under section 4980B of the Code shall begin coincident with the first day of the month following the Severance Period, or the first day of the month following the commencement of coverage with another company, whichever occurs first.

(d) Retirement Plans . The provisions of the Embarq Retirement Pension Plan and the Embarq Retirement Savings Plan, any successor plans thereto or any other retirement plans maintained by the Company pursuant to which a Participant is eligible to participate, shall control with respect to the recognition of service during the Severance Period and the eligibility for benefits following the Severance Period.

(e) Equity . The provisions of the Embarq Corporation 2006 Equity Incentive Plan, any successor plan thereto or any other equity compensation plan maintained by the Company pursuant to which a Participant has received an equity grant, and the Participant’s relevant grant agreement shall control with respect to the treatment of the Participant’s equity grants upon the Participant’s Non-CIC Termination.

(f) Outplacement Services . The Company will pay the cost of outplacement services for the Participant at the outplacement agency designated by the Company and in accordance with the Company’s procedures regarding outplacement services unless the Company provides prior approval for the Participant to use another outplacement agency.

Section 4.02 CIC Termination . The Severance Benefits to be provided to a Participant who incurs a CIC Termination and becomes a Participant shall be as follows:

(a) Base Salary . The Participant shall receive his or her Base Salary for the Severance Period applicable to the Participant as follows:

(i) If the Participant is a Director, he or she shall be entitled to receive 6 weeks of Base Salary plus an additional 2 weeks of Base Salary for each Year of Service up to a maximum of 52 weeks, but in no event less than 39 weeks.

(ii) If the Participant is a Vice President, he or she shall be entitled to receive 52 weeks of Base Salary.

(iii) If the Participant is a Senior Vice President, he or she shall be entitled to receive 78 weeks of Base Salary.

(iv) If the Participant is the Chief Executive Officer, Chief Financial Officer, General Counsel, President Consumer Markets or President Business Markets, he or she shall be entitled to receive 104 weeks of Base Salary.

(b) Short-Term Incentive Payment . The Participant shall receive an additional, single lump sum payment based on his target opportunity under the Short-Term Incentive Program equal to 80% of the Participant’s target opportunity for the fiscal year in which the Termination Date occurs, prorated based on the length of the Severance Period.

 

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(c) Continued Employee Benefits . All Participants shall continue to be eligible to participate in the Company’s Flexible Benefit Program (or successor thereto, but excluding participation in the supplemental long-term disability plan) and the Employee Assistance Program (or generally comparable coverage) for himself or herself and, where applicable, his or her eligible dependents, as the same may be changed from time to time for employees of the Employer generally, as if the Participant had continued in employment during the Severance Period. In accordance with the provisions of the Company’s Short-Term Disability Plan and the Company’s Basic Long-Term Disability Plan, a Participant shall not be eligible to participate in or receive benefits from these plans during the Severance Period. The Participant shall be responsible for the payment of the employee portion of the contributions that are required during the Severance Period and such contributions shall be made within the time period and in the amounts that Employees are required to pay to the Employer for similar coverage. The Participant’s failure to pay the applicable contributions shall result in the cessation of the applicable coverage for the Participant and his or her eligible dependents. In the event that a Participant’s Severance Period is longer than 18 months, beginning with the first day of the nineteenth month, the Participant will no longer be eligible to participate in the Flexible Benefit Program and the Company shall provide such Participant with an after-tax amount sufficient to cover the employer-paid portion of the cost of the continued medical, dental and vision coverage on the twelfth business day of each month beginning with the nineteenth month of the Severance Period and ending with the last month of the Severance Period. Notwithstanding any other provision of the Plan to the contrary, in the event that a Participant commences employment with another company at any time during the Severance Period, the Participant will cease receiving coverage under the Employer’s benefit plans if eligible for coverage under the other company’s benefit plans. Within 30 days of a Participant’s commencement of employment with another company, the Participant shall provide the Company written notice of such employment and provide information to the Company regarding the benefits provided to the Participant by his or her new employer. The COBRA continuation coverage period under section 4980B of the Code shall begin coincident with (i) the first day of the month following the Severance Period, (ii) the first day of the month following the commencement of coverage with another company, or (iii) in the event the Participant’s Severance Period is longer than 18 months, the first day of the nineteenth month, whichever occurs first.

(d) During the first 18 months of the Continuation Period (or, if shorter or longer, during the period in which you are eligible to elect COBRA continuation coverage under health and dental plans of the Company) (the “COBRA Period”), the Company will pay you a monthly payment on the first payroll date of each month equal to the COBRA cost of continued health and dental coverage under health and dental plans of the Comp


 
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