Exhibit (10)(w)
AGREEMENT REGARDING SPECIAL COMPENSATION
AND POST EMPLOYMENT RESTRICTIVE COVENANTS
THIS AGREEMENT made this 9th day of November, 1993, by and
between SPRINT/UNITED MANAGEMENT COMPANY, a Kansas corporation
and subsidiary of Sprint Corporation ("Employer"), and XXXX X.
XXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, Employer and its parent and affiliates are engaged
in the telecommunications business;
WHEREAS, Executive has expertise, experience and capability
in the business of Employer and the telecommunications business
in general;
WHEREAS, Executive has been, and/or now is serving Employer
as Senior Vice President, Staff Operations;
WHEREAS, Employer desires to enter into this Agreement to
provide severance and other benefits for Executive and obtain
Executive's agreements regarding confidentiality and post-
employment restrictive covenants for Employer; and
WHEREAS, Executive is willing to provide such agreements to
Employer.
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which consideration
is mutually acknowledged by the parties, it is hereby agreed as
follows:
1. Recitals.
The recitals hereinbefore set forth constitute an integral
part of this Agreement, evidencing the intent of the parties in
executing this Agreement, and describing the circumstances
surrounding its execution. Said recitals are by express
reference made a part of the covenants hereof, and this Agreement
shall be construed in light thereof.
2. Duties and Responsibilities.
The duties and responsibilities of Executive are and shall
continue to be of an executive nature as shall be required by
Employer in the conduct of its business. Executive's powers and
authority shall include all those presently delegated to him or
such other duties and responsibilities as from time to time may
be assigned to him. Executive recognizes, that during his
employment hereunder, he owes an undivided duty of loyalty to
Employer, and agrees to devote his entire business time and
attention to the performance of said duties and responsibilities
and to use his best efforts to promote and develop the business
of Employer.
3. Employment Term.
Executive's employment may be terminated by either party in
accordance with Sections 5, 6, 7, or 8 herein.
4. Compensation and Benefits.
During employment, Executive shall be entitled to receive a
base annual salary, shall be reimbursed for reasonable expenses
incurred and accounted for in accordance with the policies and
procedures of Employer, and shall be entitled to vacation pay and
other benefits applicable to employees generally, each as may
from time to time be established, amended or terminated. In
addition, upon execution of this Agreement, Executive shall be
awarded five thousand (5,000) shares of restricted stock as set
forth in a restricted stock agreement of even date herewith,
attached hereto and incorporated herein (the "Restricted Stock
Agreement"), shall be entitled to the Special Compensation set
forth in Section 6 hereof in accordance with the terms of this
Agreement, and shall be entitled, subject to approval of the
Organization and Compensation Committee, to participation in the
Key Management Benefit Plan in accordance with the terms of said
plan.
5. Termination by Employer: Special Compensation.
At any time, Employer may terminate Executive's employment
for any reason. If Executive's termination is other than
pursuant to Section 6, Executive shall, subject to the other
provisions of this Section 5, be entitled to the following
Special Compensation (as that term is defined in this Section 5)
in lieu of any benefits available under any and all Employer
separation plans or policies. If Executive's termination is
pursuant to Sections 5, 6 or 7, Executive's obligations under
Sections 11, 12, 13, and 14 hereof shall continue.
For purposes of this Agreement, "Special Compensation" shall
consist of :
(a) to continue to receive for a period of eighteen
(18) months from the date of termination (the "Severance
Period") biweekly compensation at the rate equal to the
biweekly amount of his base annual salary in effect at the
date of termination of employment;
(b) to receive a bonus, based on actual performance
results, up to the target amount, under the Management
Incentive Plan ("MIP") throughout the Severance Period
provided that the amount, if any, payable under such Plan
for the award period including the last day of the Severance
Period shall be pro rated based upon the number of months of
the Severance Period that fall within the award period and
the total number of months in such award period;
(c) to receive an award under the Long Term Incentive
Plan, pro rated based on the Executive's last day worked,
exclusive of any Severance Period, determined in accordance
with the terms of said Plan;
(d) acceleration of vesting of restricted stock in
accordance with the relevant provisions of the Restricted
Stock Agreement;
(e) to continue to receive throughout the Severance
Period any executive medical, dental, life, and qualified or
nonqualified retirement benefits which the Executive was
receiving or was entitled to receive at the time of
termination, except that long term disability and short term
disability benefits cease on the last day worked;
(f) outplacement counseling by a firm selected by
Employer to continue until Executive becomes employed; and
(g) to continue to receive throughout the Severance
Period all applicable executive perquisites (including
automobile allowance, long distance services and all
miscellaneous services) except country club membership dues
and accrual of vacation.
Employer shall pay or cause to be paid the amounts payable
under paragraph (a) above in equal installments, bi-weekly in
arrears, and the amount payable under paragraphs (b) and (c) in
accordance with the terms of the Plans. All payments pursuant to
this Section shall be subject to applicable federal and state
income and other withholding taxes.
In addition to the Special Compensation described above,
Executive shall also be entitled to any vacation pay for vacation
accrued by Executive in the calendar year of termination but not
taken at the time of termination.
In the event Executive becomes employed full time during the
Severance Period, Executive's entitlement to continuation of the
benefits described in paragraph (e) shall immediately cease,
however, Executive shall retain any rights to continue medical
insurance coverage under the COBRA continuation provisions of the
group medical insurance plan by paying the applicable premium
therefor.
The payments and benefits provided for in this Section shall
be in addition to all other sums then payable and owing to
Executive hereunder and, except as expressly provided herein,
shall not be subject to reduction for any amounts received by
Executive for employment or services provided after termination
of employment hereunder, and shall be in full settlement and
satisfaction of all of Executive's claims and demands.
In all events, Executive's right to receive severance and/or
other benefits pursuant to this Section shall cease immediately
in the event Executive is re-employed by Employer or an affiliate
or Executive breaches his Confidential Information Covenant (as
defined in Section 11 hereof), or breaches Sections 12, 13 or 14
hereof. In all cases, Employer's rights under Section 15 shall
continue.
6. Voluntary Resignation by Executive; Termination
for Cause; Total Disability
Upon termination of Executive's employment by either
Voluntary Resignation, Termination for Cause (as those terms are
defined in this Section 6), or Total Disability, as that term is
defined in the Long Term Disability Plan, Executive shall have no
right to compensation, severance pay or other benefits described
herein but Executive's obligations under Sections 11, 12, 13 and
14 hereof shall continue.
(a) Voluntary Resignation by Executive. At any
time, Executive has the right, by written notice to
Employer, to terminate his services hereunder ("Voluntary
Resignation"), effective as of thirty (30) days after such
notice.
(b) Termination for Cause by Employer. At any
time, Employer has the right to terminate Executive's
employment. Termination upon the occurrence of any of the
following shall be deemed termination for cause
("Termination for Cause"):
(i) Conduct by the Executive which reflects
adversely on the Executive's honesty, trustworthiness
or fitness as an Executive, or
(ii) Executive's willful engagement in conduct
which is demonstrably and materially injurious to the
Employer.
For Termination for Cause, written notice of the
termination of Executive's employment by Employer shall be
served upon Executive and shall be effective as of the date
of such service. Such notice given by Employer shall specify
the act or acts of Executive underlying such termination.
(c) Total Disability. Upon the total disability of
the Executive, as that term is defined in the Long Term
Disability Plan, Executive shall have no right to
compensation or severance pay described herein but shall
be entitled to long term disability and other such
benefits afforded under the applicable policies and plans.
7. Resignation Following Constructive Discharge.
If at any time, except in connection with a termination
pursuant to Section 5, 6, or 8 Executive is Constructively
Discharged (as that term is defined in this Section 7) then
Executive shall have the right, by written notice to Employer
within sixty (60) days of such Constructive Discharge, to
terminate his services hereunder, effective as of thirty (30)
days after such notice. Executive shall in such event be
entitled to the compensation and benefits as if such employment
were terminated pursuant to Section 5 of this Agreement.
For purposes of this Agreement, the Executive shall be
"Constructively Discharged" upon the occurrence of any one of the
following events:
(a) Executive is removed from his position with Employer
other than as a result of Executive's appointment to
positions of equal or superior scope and responsibility; or
(b) Executive's targeted total compensation is reduced
by more than 10% (other than across-the-board reductions
similarly affecting all officers of the Long Distance
Division of Employer).
8. Effect of Change in Control.
In the event that within one year of a Change in Control (as
that term is defined in this Section 8) Executive's employment is
terminated:
(a) by the Employer other than pursuant to Section 6
hereof, or,
(b) by Executive pursuant to Section 7 hereof,
then Executive shall be entitled to the Special Compensation
described in Section 5 and shall be bound by Section 11, but
shall not have any continuing obligations under Sections 12, 13,
and 14, except as otherwise required by common law or statute.
For purposes of this Agreement, a "Change in Control" shall
be deemed to have occurred if:
(i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act")) other than a trustee or other fiduciary
holding securities under an employee benefit plan of Sprint
Corporation ("Sprint") or any of its affiliates, and other
than Sprint or a corporation owned, directly or indirectly,
by the stockholders of Sprint in substantially the same
proportions as their ownership of stock of Sprint, is or
becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of
securities of Sprint representing 20% or more of the
combined voting power of Sprint's then outstanding
securities, or
(ii) during any period of two consecutive years (not
including any period prior to the date of this Agreement),
incumbent members cease for any reason to constitute a
majority of the members of the Board of Directors of Sprint.
A member of the Board of Directors of Sprint shall be an
"incumbent member" if such individual is as of the date of this
Agreement or at the beginning of the applicable two consecutive
year period a member of the Board of Directors of Sprint, and any
new director after the date of this Agreement (other than a
director designated by person who has entered into an agreement
to effect a transaction described in subparagraph (i) above)
whose election to the Board or nomination for election by the
stockholders of Sprint was approved by a vote of at least two-
thirds (2/3) of the directors still in office who either were
directors as of the date hereof or as of the first day of the
applicable two consecutive year period or whose election or
nomination for election was previously so approved.
9. Dispute Resolution.
All disputes arising under this Agreement, other than those
disputes relating to Executive's alleged violations of Sections
11 through 14 herein, shall be submitted to arbitration by the
American Arbitration Association of Kansas City, Missouri. Costs
of arbitration shall be borne equally by the parties. The
decision of the arbitrators shall be final and there shall be no
appeal from any award rendered. Any award rendered may be
entered as a judgment in any court of competent jurisdiction. In
any judicial enforcement proceeding, the losing party shall
reimburse the prevailing party for its reasonable costs and
attorneys' fees for enforcing its rights under this Agreement, in
addition to any damages or other relief granted. This Section 9
does not apply to any action by Employer to enforce Sections 11
through 14 of this Agreement and does not in any way restrict
Employer's rights under Section 15 herein.
10. Enforcement.
In the event Employer shall fail to pay any amounts due to
Executive under this Agreement as they come due, Employer agrees
to pay interest on such amounts at a rate of prime plus two
percent (2%) per annum. Employer agrees that Executive and any
successor shall be entitled to recover all costs of successfully
enforcing any provision of this Agreement, including reasonable
attorney fees and costs of litigation.
11. Confidential Information.
Executive acknowledges that during the course of his
employment he has learned or will learn or develop Confidential
Information (as that term is defined in this Section 11).
Executive further acknowledges that unauthorized disclosure or
use of such Confidential Information, other than in discharge of
Executive's duties, will cause Employer irreparable harm.
For purposes of this Section, Confidential Information means
trade secrets (such as technical and non-technical data, a
formula, pattern, compilation, program, device, method,
technique, drawing, process) and other proprietary information
concerning the products, processes or services of Employer or its
parent, and/or affiliates, including but not limited to: computer
programs; unpatented inventions, discoveries or improvements;
marketing, manufacturing, or organizational research and
development; business plans; sales forecasts; personnel
information, including the identity of other employees of
Employer, their responsibilities, competence, abilities, and
compensation; pricing and financial information; current and
prospective customer lists and information on customers or their
employees; information concerning planned or pending acquisitions
or divestitures; and information concerning purchases of major
equipment or property, which information: (a) has not been made
generally available to the public; and (b) is useful or of value
to the current or anticipated business, or research or
development activities of Employer or of any customer or supplier
of Employer, or (c) has been identified to Employee as
confidential by Employer, either orally or in writing.
Except in the course of his employment and in the pursuit of
the business of Employer or any of its subsidiaries or
affiliates, Executive shall not, during the course of his
employment, or for a period of eighteen (18) months following
termination of his employment for any reason, directly or
indirectly, disclose, publish, communicate or use on his behalf
or another's behalf, any proprietary information or data of
Employer or any of its subsidiaries or affiliates.
Executive acknowledges that Employer operates and competes
nationally, and that Employer will be harmed by unauthorized
disclosure or use of Confidential Information regardless of where
such disclosure or use occurs, and that therefore this
confidentiality agreement is not limited to any single state or
other jurisdiction.
12. Non-Competition.
Executive acknowledges that use or disclosure of Confidential
Information described in Section 11 is likely if Executive were
to perform telecommunications functions relating to long distance
services on behalf of a competitor of Employer. Therefore,
Executive shall not, for eighteen (18) months following
termination of employment for any reason (the "Non-Compete
Period"), accept any position, including but not limited to a
position in the long distance operations of AT&T or MCI, where
the performance of duties in that position will involve managing,
controlling, participating in, investing in, acting as consultant
or advisor to, rendering services for, or otherwise assisting any
person or entity in the long distance business and performing
functions relating to long distance services, including all forms
of interexchange, interstate, intrastate, interlata and
international communications.
Executive acknowledges that Employer operates and competes
nationally, and that therefore this non-competition agreement is
not limited to any single state or other jurisdiction.
This section shall not prevent Executive from using general
skills and experience developed during employment with Employer
or other employers; or from accepting a position of employment
with another company, firm, or other organization which competes
with Employer, if its business is diversified and Executive is
employed in a part of the business that is not related to long
distance Services and provided that such position does not
require or permit the disclosure or use of Confidential
Information.
13. Inducement of Other Employees.
For a eighteen (18) month period following termination of
employment, Executive will not directly or indirectly solicit,
induce or encourage any employee or agent of Employer to
terminate his relationship with Employer.
14. Return of Employer's Property.
All notes, reports, sketches, plans, published memoranda or
other documents created, developed, generated or held by
Executive during employment, concerning or related to Employer's
business, and whether containing or relating to Confidential
Information or not, are the property of Employer and will be
promptly delivered to Employer upon termination of Executive's
employment for any reason whatsoever. During the course of
employment, Executive shall not remove any of the above property
containing Confidential Information, or reproductions or copies
thereof, or any apparatus from Employer's premises without
authorization.
15. Remedies.
Executive acknowledges that the restraints and agreements
herein provided are fair and reasonable, that enforcement of the
provisions of Sections 11, 12, 13 and 14 will not cause him undue
hardship and that said provisions are reasonably necessary and
commensurate with the need to protect Employer and its legitimate
and proprietary business interests and property from irreparable
harm.
Executive acknowledges that failure to comply with the terms
of this Agreement will cause irreparable damage to Employer.
Therefore, Executive agrees that, in addition to any other
remedies at law or in equity available to Employer for
Executive's breach or threatened breach of this Agreement,
Employer is entitled to specific performance or injunctive
relief, without bond, against Executive to prevent such damage or
breach, and the existence of any claim or cause of action
Executive may have against Employer will not constitute a
defense thereto. Executive further agrees to pay reasonable
attorney fees and costs of litigation incurred by Employer in any
proceeding relating to the enforcement of the Agreement or to any
alleged breach thereof in which Employer shall prevail in whole
or in part.
In the event of a breach or a violation by Executive of any
of the covenants and provisions of this Agreement, the running of
the Non-Compete Period (but not of Executive's obligation
thereunder), shall be tolled during the period of the continuance
of any actual breach or violation.
16. Confidentiality of Agreement.
As a specific condition to Executive's right to Special
Compensation or other benefits described herein, Executive agrees
that he will not disclose or discuss: the existence of this
Agreement; the Special Compensation provided hereunder; or any
other terms of the Agreement except: (1) to members of his
immediate family; (2) to his financial advisor or attorney but
then only to the extent necessary for them to assist him; or (3)
as required by law or to enforce legal rights.
17. Entire Understanding.
This Agreement constitutes the entire understanding between
the parties relating to Executive's employment hereunder and
supersedes and cancels all prior written and oral understandings
and agreements with respect to such matters, except for the terms
and provisions of the Key Management Benefit Plan and any other
employee benefit or other compensation plans (or any agreements
or awards thereunder) referred to in or contemplated by this
Agreement and except for the SPRINT UNITED EMPLOYEE
AGREEMENT REGARDING PROPERTY RIGHTS AND BUSINESS
PRACTICES which the Executive has signed and by which Executive
continues to be bound.
18. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of Executive's executors, administrators, legal representatives,
heirs and legatees and the successors and assigns of Employer.
19. Partial Invalidity.
The various provisions of this Agreement are intended to be
severable and to constitute independent and distinct binding
obligations. Should any provision of this Agreement be
determined to be void and unenforceable, in whole or in part, it
shall not be deemed to affect or impair the validity of any other
provision or part thereof, and such provision or part thereof
shall be deemed modified to the extent required to permit
enforcement. Without limiting the generality of the foregoing,
if the scope of any provision contained in this Agreement is too
broad to permit enforcement to its full extent, but may be made
enforceable by limitations thereon, such provision shall be
enforced to the maximum extent permitted by law, and Executive
hereby agrees that such scope may be judicially modified
accordingly.
20. Strict Construction.
The language used in this Agreement will be deemed to be the
language chosen by Employer and Executive to express their mutual
intent and no rule of strict construction shall be applied
against any person.
21. Waiver.
The waiver of any party hereto of a breach of any provision
of this Agreement by any other party shall not operate or be
construed as a waiver of any subsequent breach.
22. Notices.
Any notice or other communication required or permitted to be
given hereunder shall be determined to have been duly given to
any party (a) upon delivery to the address of such party
specified below if delivered personally or by courier; (b) upon
dispatch if transmitted by telecopy or other means of facsimile,
provided a copy thereof is also sent by regular mail or courier;
or (c) within forty-eight (48) hours after deposit thereof in the
U.S. mail, postage prepaid, for delivery as certified mail,
return receipt requested, addressed, in any case to the party at
the following address(es) or telecopy numbers:
If to Executive:
Xxxx X. Xxxxxx
Sprint Communications Company, L.P.
0000 Xxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
If to Employer and/or Company:
Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Secretary
or to such other address(es) or telecopy number(s) as any party
may designate by Written Notice in the aforesaid manner.
23. Governing Law.
This Agreement shall be governed by, and interpreted,
construed and enforced in accordance with, the laws of the State
of Kansas.
24. Gender and Number.
Wherever from the context it appears appropriate, each term
stated in either the singular of plural shall include the
singular and the plural, and the pronouns stated in either the
masculine, the feminine or the neuter gender shall include the
masculine, feminine or neuter.
25. Headings.
The headings of the Sections of this Agreement are for
reference purposes only and do not define or limit, and shall not
be used to interpret or construe the contents of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed at Westwood, Kansas, on the date above set
forth.
XXXX X. XXXXXX SPRINT/UNITED MANAGEMENT COMPANY
/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxx
Authorized Officer
AMENDMENT
The Agreement Regarding Special Compensation and Post
Employment Restrictive Covenants (the "Special Agreement")
between Sprint/United Management Company and Xxxx X. Xxxxxx (the
"Executive") is hereby amended as follows, effective January 3,
1994:
1. The first sentence of Section 8 shall be changed by
adding the word "or" at the end of item (b) and by adding
the following item (c):
(c) by Executive if Executive is required to be based
anywhere other than the Kansas City metropolitan area
or the Dallas, Texas metropolitan area except for
required travel on business to an extent substantially
consistent with Executive's business travel obligations
immediately prior to the Change in Control;
2. Section 12 shall be changed by:
(a) deleting from the second sentence of the first
paragraph the words "the performance of duties in that
position will involve", and substituting in lieu
thereof the words "Executive dedicates his time and
efforts principally to"; and
(b) changing the last sentence of the Section to read:
This section shall not prevent Executive from using
general skills and experience developed during
employment with Employer or other employers; or from
accepting a position of employment with another
company, firm, or other organization which competes
with Employer, if its business is diversified and
Executive is employed in a part of the business that is
not related principally to long distance services and
provided that such position does not require or permit
the disclosure or use of Confidential Information.
Except as amended herein, the terms of the Special Agreement
shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed at Westwood, Kansas, as of the date
above set forth.
EXECUTIVE SPRINT/UNITED MANAGEMENT
COMPANY
/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxx
1/10/94 Title: SVP - HR
Amendment No. 2
This amendment (the "Amendment") is made as of the 12th
day of August, 1996, by and between Sprint/United
Management Company, a Kansas Corporation and a wholly-
owned subsidiary of Sprint ("Employer") and Xxxx X.
Xxxxxx ("Executive").
Recitals
1. Employer and Executive entered into an Agreement
Regarding Special Compensation and Post Employment
Covenants, dated November 9, 1993 (the
"Agreement").
2. Employer and Executive amended the Agreement as of
January 3, 1994.
3. Employer desires to expand the scope of
Executive's covenants not to compete under the
Agreement.
4. Employer is issuing to Executive additional
shares* of restricted stock in consideration for
Executives agreement to amend the Agreement.
Now, therefore, in consideration of the foregoing
premises and other good and valuable consideration, the
receipt and sufficiency of which the parties hereby
acknowledge, the parties agree as follows.
1. Section 12 of the Agreement is amended by adding
the following language to the end of the last sentence
of the first paragraph: ", together with related
services such as information services."
2. In all other respects, the parties ratify and
affirm the Agreement as previously amended.
In Witness Whereof, the parties have executed this
Amendment as of the 12th day of August, 1996.
Sprint/United Management
Corporation
/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxx
Xxxx X. Xxxxxx Authorized Officer
* 15,000 shares
