Exhibit 10.1
EMBARQ CORPORATION
EXECUTIVE SEVERANCE
PLAN
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ARTICLE I
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PURPOSE AND TERM OF PLAN
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1
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Section 1.01
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Purpose of the Plan
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1
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Section 1.02
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Term of the Plan
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1
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ARTICLE II
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DEFINITIONS
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1
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Section 2.01
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“Base Salary”
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1
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Section 2.02
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“Board”
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1
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Section 2.03
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“Cause”
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1
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Section 2.04
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“Change in Control”
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2
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Section 2.05
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“CIC Termination”
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3
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Section 2.06
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“COBRA”
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3
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Section 2.07
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“Code”
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3
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Section 2.08
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“Committee”
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3
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Section 2.09
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“Company”
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3
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Section 2.10
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“Competitive Employment”
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3
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Section 2.11
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“Competitor”
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4
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Section 2.12
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“Effective Date”
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4
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Section 2.13
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“Eligible Employee”
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4
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Section 2.14
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“Employee”
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Section 2.15
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“Employer”
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4
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Section 2.16
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“ERISA”
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5
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Section 2.17
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“Exchange Act”
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5
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Section 2.18
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Good Reason Resignation”
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5
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Section 2.19
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“Involuntary
Termination”
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5
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Section 2.20
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“Non-CIC Termination”
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6
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Section 2.21
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“Non-Comparable
Position”
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6
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Section 2.22
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“Non-Compete Period”
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6
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Section 2.23
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“Non Executive Separation
Plan”
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6
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Section 2.24
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“Participant”
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6
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Section 2.25
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“Permanent Disability”
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6
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Section 2.26
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“Plan”
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6
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Section 2.27
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“Plan Administrator”
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6
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Section 2.28
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“Release”
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Section 2.29
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“Service”
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7
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Section 2.30
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“Severance Benefit”
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7
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Section 2.31
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“Severance Period”
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Section 2.32
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“Specified Employee”
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Section 2.33
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“Subsidiary”
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7
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Section 2.34
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“Termination Date”
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Section 2.35
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“Voluntary Resignation”
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Section 2.36
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“Year of Service”
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ARTICLE III
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PARTICIPATION AND ELIGIBILITY FOR
BENEFITS
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8
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Section 3.01
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Participation
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Section 3.02
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Conditions
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ARTICLE IV
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DETERMINATION OF SEVERANCE BENEFITS
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Section 4.01
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Non-CIC Termination
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Section 4.02
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CIC Termination
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10
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Section 4.03
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Voluntary Resignation; Termination for Death or
Permanent Disability
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Section 4.04
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Termination for Cause
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Section 4.05
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Approved Military Leave
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13
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Section 4.06
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Reduction of Severance Benefits
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13
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Section 4.07
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Certain Terminations
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13
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ARTICLE V
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METHOD OF PAYMENT AND LIMITATION ON
BENEFITS
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Section 5.01
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Method of Payment
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14
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Section 5.02
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409(A) Delay
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14
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Section 5.03
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Limitation on Benefits
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14
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ARTICLE VI
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RESTRICTIVE COVENANTS
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15
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Section 6.01
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Principles of Business Conduct
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Section 6.02
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Proprietary Information
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Section 6.03
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Non-Competition
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Section 6.04
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Inducement of Employees, Customers and
Others
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Section 6.05
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No Adverse Actions
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Section 6.06
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Return of Property
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Section 6.07
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Non-Disparagement
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Section 6.08
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Assistance with Claims
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Section 6.09
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Reasonableness
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Section 6.10
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Equitable Relief
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Section 6.11
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Survival of Provisions
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ARTICLE VII
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COMMITTEE; PLAN ADMINISTRATOR
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Section 7.01
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Authority and Duties
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Section 7.02
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Compensation of the Plan Administrator and the
Committee
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Section 7.03
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Records, Reporting and Disclosure
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Section 7.04
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Discretion
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ARTICLE VIII
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AMENDMENT, SUSPENSION AND
TERMINATION
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Section 8.01
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Amendment, Suspension and
Termination
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19
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Section 8.02
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Continuation of Plan following a Change in
Control
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20
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ARTICLE IX
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CLAIMS PROCEDURES
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20
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Section 9.01
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Claims
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20
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Section 9.02
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Initial Claim
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20
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Section 9.03
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Appeals of Denied Administrative
Claims
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21
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Section 9.04
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Appointment of the Named Appeals
Fiduciary
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21
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ARTICLE X
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MISCELLANEOUS
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22
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Section 10.01
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Waiver of Jury Trial
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Section 10.02
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Forum Selection
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22
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Section 10.03
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Nonalienation of Benefits
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22
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Section 10.04
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Notices
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22
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Section 10.05
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No Mitigation
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Section 10.06
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No Contract of Employment
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23
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Section 10.07
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Severability of Provisions
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23
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Section 10.08
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Headings and Captions
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23
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Section 10.09
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Gender and Number
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23
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Section 10.10
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Unfunded Plan
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23
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Section 10.11
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Payments to Incompetent Persons
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23
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Section 10.12
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Lost Payees
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23
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Section 10.13
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Section 409(A) Compliance
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Section 10.14
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Controlling Law
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24
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EXHIBIT A
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Participation Agreement
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A
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Release
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1
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Arbitration Provision
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6
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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.
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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,
8
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
9
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.
10
(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