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AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Employee Retention Agreement

AMENDED AND RESTATED EMPLOYMENT AGREEMENT | Document Parties: Nextel Communications, Inc | Sprint Nextel Corporation You are currently viewing:
This Employee Retention Agreement involves

Nextel Communications, Inc | Sprint Nextel Corporation

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Title: AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Governing Law: Maryland     Date: 2/27/2009
Industry: Communications Services     Sector: Services

AMENDED AND RESTATED EMPLOYMENT AGREEMENT, Parties: nextel communications  inc , sprint nextel corporation
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Exhibit 10.26.1

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of December 31, 2008, by and between Sprint Nextel Corporation, a Kansas corporation (the “Company”), and Robert L. Johnson (the “Executive”) and amends and restates the Employment Agreement (the “Original Employment Agreement”), originally entered into as of April 1, 2004 (the “Effective Date”), by and between Nextel Communications, Inc., a Delaware corporation, and a subsidiary of the Company, and the Executive (the Company and the Executive, collectively, the “Parties,” and each, a “Party”). Certain capitalized terms are defined in Section 30.

WITNESSETH :

WHEREAS, the Executive serves the Company as its Chief Service Officer;

WHEREAS, the Executive and Nextel Communications, Inc. are parties to a Nextel Confidentiality Agreement dated November 15, 1998 (the “Confidentiality Agreement”); and

WHEREAS, the Executive and the Company desire to amend and restate the Original Employment Agreement as provided herein.

NOW, THEREFORE, in consideration of the premises and of the covenants and agreements set forth herein and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and the Executive hereby amend and restate the Original Employment Agreement as follows:

1. Employment .

(a) The Company will continue to employ the Executive and the Executive will continue to be employed by the Company upon the terms and conditions set forth herein.

(b) The employment relationship between the Company and the Executive shall be governed by the general employment policies and practices of the Company, including without limitation, those relating to the Company’s Code of Corporate Conduct, confidential information and avoidance of conflicts, except that when the terms of this Agreement differ from or are in conflict with the Company’s general employment policies or practices, this Agreement shall control.

2. Term . Subject to termination under Section 9, the Executive’s employment shall be for an initial term of thirty-six (36) months commencing on the Effective Date and shall continue through the third anniversary of the Effective Date (the “Employment Term”); provided , however , that at the end of the initial Employment Term and on each succeeding anniversary of the Effective Date, the Employment Term will be automatically extended by an additional twelve (12) months, unless, not less than twelve (12) months prior to the end of the initial Employment Term or any such succeeding anniversary date either the Executive or the Company has given the other written notice of nonrenewal.


3. Position and Duties of the Executive .

(a) The Executive serves as the Senior Vice President, National Field Operations of the Company, and agrees to serve as an officer and/or agrees to be an employee of any Subsidiary as may be requested from time to time by the Board of Directors of the Company (the “Board”), any committee or person delegated by the Board or the Chief Executive Officer of the Company (the “Chief Executive Officer”). In such capacity, the Executive shall report directly to the Chief Executive Officer or the Chief Operating Officer of the Company. The Executive shall perform such duties as may be delineated in the By-laws of the Company, and such other duties commensurate with the Executive’s title and position, as may be assigned to the Executive from time to time by the Chief Executive Officer or such other officer of the Company as may be designated by the Chief Executive Officer. For purposes of this Agreement, “Subsidiary” shall mean any entity, corporation, partnership (general or limited), limited liability company, entity, firm, business organization, enterprise, association or joint venture in which the Company directly or indirectly controls ten percent (10%) or more of the voting interest. Notwithstanding the foregoing, for purposes of the first sentence of this Section 3(a), “Subsidiary” shall mean any affiliate with which the Company would be considered a single employer as described in the definition of Separation from Service.

(b) Throughout the Employment Term, the Executive shall, except as may from time to time be otherwise agreed in writing by the Company and during reasonable vacations as set forth in Section 7 hereof and authorized leave, devote his best efforts, full attention and energies during his normal working time to the business of the Company, any duties as may be delineated in the Company’s By-laws for the Executive’s position and title and such other related duties and responsibilities as may from time to time be reasonably prescribed by the Board, any committee or person delegated by the Board, or the Chief Executive Officer, in each case, within the framework of the Company’s policies and objectives.

(c) Throughout the Employment Term, and provided that such activities do not contravene the provisions of Section 3(a) or Sections 10, 11, 12 and 13 hereof and provided further the Executive does not engage in any other substantial business activity for gain, profit or other pecuniary advantage which materially interferes with the performance of his duties hereunder, the Executive may participate in any governmental, educational, charitable or other community affairs and serve as a member of the governing board of any such organization or of up to three (3) private or public for profit companies, subject in each case to the prior approval of the Chief Executive Officer. The Executive may retain all fees and other compensation from any such service, and the Company shall not reduce his compensation by the amount of such fees.

4. Compensation .

(a) Base Salary . During the Employment Term the Company shall pay to the Executive a base salary of not less than his base salary as of the Effective Date (the “Base Salary”), payable at the times and in the manner consistent with the Company’s general policies regarding compensation of senior executive employees. The Base Salary will be reviewed not less than annually by the Chief Executive Officer and may be increased (but not decreased) in the Chief Executive Officer’s sole discretion. The Executive’s position shall be classified as pay grade EX3 or better (as adjusted for any changes to the Company’s system of classifying employees by salary grade level implemented subsequent to the Effective Date).

 

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(b) Incentive Compensation .

(i) The Executive will continue to be eligible to participate in any short-term and long-term incentive compensation plans, annual bonus plans and such other management incentive programs or arrangements of the Company approved by the Board that are generally available to the Company’s senior executives, including, but not limited to, the STIP and the LTSIP. Incentive compensation shall be paid in accordance with the terms and conditions of the applicable plans, programs and arrangements.

(ii) Annual Performance Bonus . During the Employment Term, the Executive shall continue to be entitled to participate in the STIP, with such opportunities as may be determined by the Chief Executive Officer (“Target Bonuses”); provided, however, that effective for the bonus year ending December 31, 2004 the Executive participated in the STIP at a Target Bonus opportunity of 50% of his Base Salary and was entitled to receive full payment of any award under the STIP, determined pursuant to the STIP (a “Bonus Award”).

(iii) Long-Term Performance Bonus . During the Employment Term, the Executive shall continue to be entitled to participate in the LTPP with such opportunities, if any, as may be determined by the Chief Executive Officer (“LTPP Target Award Opportunities”).

(iv) Incentive bonuses, if earned, shall be paid when incentive compensation is customarily paid to the Company’s senior executives in accordance with the terms of the applicable plans, programs or arrangements.

(v) Pursuant to the Company’s applicable incentive or bonus plans as in effect from time to time, the Executive’s incentive compensation during the term of this Agreement may be determined according to criteria intended to qualify under Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”).

(c) Equity Compensation . The Executive shall continue to be eligible to participate in such equity incentive compensation plans and programs as the Company generally provides to its senior executives, including, but not limited to, the LTSIP.

(i) Options . During the Employment Term, the Compensation Committee of the Board (the “Compensation Committee”) may, in its sole discretion, grant stock options to the Executive, which would be subject to the terms of the respective option agreements evidencing such grants.

(ii) Deferred Shares . The Compensation Committee awarded to the Executive 90,000 Deferred Shares (as such term is defined in the Incentive Equity Plan) of common stock of the Company, par value $.001 per share (“Common

 

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Stock”), (the “Deferred Shares Award”) in three (3) tranches as follows: 30,000 Deferred Shares as of the Effective Date (the “Tranche 1 Shares”), 30,000 Deferred Shares as of the date of a Compensation Committee meeting in February 2005 (the “Tranche 2 Shares”) and 30,000 Deferred Shares immediately upon the Change of Control (as defined in the Incentive Equity Plan) of Nextel Communications, Inc. that occurred in 2005 (the “Tranche 3 Shares”). Subject to the terms and conditions of the Deferred Shares Award agreement evidencing each such Tranche, one-third (  1 / 3 ) of the Tranche 1 Shares vested and became nonforfeitable on the first anniversary of the Effective Date, and the remaining two thirds of the Tranche 1 Shares and the remaining tranches of the Deferred Shares Award immediately vested and became nonforfeitable upon the aforementioned Change of Control.

5. Benefits .

(a) During the Employment Term, the Company shall make available to the Executive, subject to the terms and conditions of the applicable plans, participation for the Executive and his eligible dependents in (i) Company-sponsored group health, major medical, pension and profit sharing, 401(k) and employee welfare benefit plans, programs and arrangements (the “Employee Plans”) and such other usual and customary benefits in which senior executives of the Company participate from time to time, and (ii) such fringe benefits and perquisites as may be made available to senior executives of the Company as a group, including but not limited to, long-term disability insurance, life insurance coverage and the CIC Severance Plan.

(b) The Executive acknowledges that the Company may change its benefit programs from time to time, which may result in certain benefit programs being amended or terminated for its senior executives generally.

6. Expenses . The Company shall pay or reimburse the Executive for reasonable and necessary business expenses incurred by the Executive in connection with his duties on behalf of the Company in accordance with the Company’s Enterprise Financial Services Employee Travel and Expense Policy, as may be amended from time to time, or any successor policy, plan, program or arrangement thereto and any other of its expense policies applicable to senior executives of the Company, following submission by the Executive of reimbursement expense forms in a form consistent with such expense policies.

7. Vacation . In addition to such holidays, sick leave, personal leave and other paid leave as is allowed under the Company’s policies applicable to senior executives generally, the Executive shall be entitled to twenty (20) days of vacation per 12-month period and subject to the terms and conditions of the Company’s vacation policy applicable to senior executives. The duration of such vacations and the time or times when they shall be taken will be determined by the Executive in consultation with the Company.

8. Place of Performance . In connection with his employment by the Company, the Executive shall be based at the principal executive offices of the Company in the vicinity of Overland Park, Kansas, except for travel reasonably required for Company business. If the

 

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Company relocates his place of work more than 30 miles, the Executive shall relocate to a residence within 30 miles of such relocated executive offices, subject, however, to reimbursement of the Executive’s relocation expenses in accordance with the Company’s relocation policy applicable to senior executives.

9. Termination .

(a) Termination by the Company for Cause or Resignation by the Executive Without Good Reason . If, prior to the expiration of the Employment Term, the Executive’s employment is terminated by the Company for Cause, as defined in Section 9(d), or if the Executive resigns from his employment hereunder without Good Reason, as defined in Section 9(f), the Executive shall not be eligible to receive Base Salary or to participate in any Employee Plans with respect to future periods after the date of such termination or resignation except for the right to receive vested benefits under any Employee Plan in accordance with the terms of such Employee Plan.

(b) Termination by the Company Without Cause or Resignation by the Executive for Good Reason . If, prior to the expiration of the Employment Term, the Executive’s employment is terminated by the Company without Cause or the Executive terminates his employment hereunder for Good Reason and such termination constitutes a Separation from Service, the Executive shall be entitled to receive from the Company: (1) the Executive’s accrued, but unpaid, Base Salary through the date of termination of employment, payable in accordance with the Company’s normal payroll practices, and (2) conditioned upon the Executive executing a Release within the Release Consideration Period and delivering it to the Company with the Release Revocation Period expired without revocation, notwithstanding any provision in the terms of any incentive compensation plan or agreement to the contrary, in full satisfaction of the Executive’s rights and any benefits the Executive might be entitled to under the Separation Plan and this Agreement, unless otherwise specified herein, the Executive shall be entitled to:

(i) periodic payments equal to his Base Salary in effect prior to termination of employment, which payments shall be paid in equal installments on the regular payroll dates under the Company’s payroll practices applicable to the Executive on the date of this Agreement for the greater of the remainder of the Employment Term or twenty-four (24) months (the “Severance Period”) following the Separation from Service, except that (A) if the Release Consideration and Revocation Period ends on or after December 15 th of the calendar year of the Executive’s Separation from Service, such installments that are otherwise payable in the calendar year of the Executive’s Separation from Service shall be paid in a lump sum on the first business day of the following calendar year or (B) if the Executive is a Specified Employee, with respect to any amount payable by reason of the Separation from Service that constitutes deferred compensation within the meaning of Section 409A of the Code, such installments shall not commence until after the end of the six continuous month period following the date of the Executive’s Separation from Service, in which case, the Executive shall be paid a lump-sum cash payment equal to the aggregate amount of missed installments during such period on the first day of the seventh month following the date of the Executive’s Separation from Service;

 

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(ii) continue participation in the Company’s health care, life and long-term disability plans, substantially on the same basis that the Executive participated in such health care, life and long-term disability plans prior to the termination of his employment for the Severance Period; provided, however, that benefits otherwise receivable by the Executive pursuant to this Section 9(b)(ii) shall be applied against the maximum period of continuation coverage provided under Section 4980B of the Code;

(iii) (A) receive full payment of the Bonus Award for the Company’s current fiscal year during which his termination of employment occurs, (B) receive full payment of the Bonus Award for the next fiscal year following the fiscal year during which his termination of employment occurs and (C) receive payment of a pro rata portion of the Bonus Award for the second year following the fiscal year during which the Executive’s employment terminates (such pro rata formula shall be determined based on the number of months of service provided by the Executive during the fiscal year during which his termination of employment occurs), in each case at the greater of the annual Target Bonus or actual performance for such fiscal year in accordance with the then existing terms of such cash incentive compensation, which shall not be payable until the Compensation Committee has determined that any incentive targets have been achieved and the subsequent designated payout date has arrived, and each such payment shall be payable in accordance with the provisions of the STIP in the calendar year in which the Bonus Award is determined, and in all events, not later than December 31 st of the year in which each such award is determined;

(iv) receive either (A) a pro rata portion of any LTPP Target Award Opportunity to which he would otherwise be entitled for the LTPP performance period during which his termination of employment occurs (but not for any later years) if such termination occurs during the first year of the two-year LTPP performance period or (B) full payment of any LTPP Target Award Opportunity to which he would otherwise be entitled for the LTPP performance period during which his termination of employment occurs (but not for any later years) if such termination occurs during the second year of the two-year LTPP performance period, in each case, in accordance with the then existing terms of the LTPP, which shall not be payable until the Compensation Committee has determined that any incentive targets have been achieved and the subsequent designated payout date has arrived, and each such payment shall be payable in accordance with the LTPP in the calendar year in which the payment is determined, and in all events, not later than December 31 st of the year in which each such award is determined;

(v) accelerated vesting of any unvested deferred shares, restricted shares and stock options granted to the Executive which have not otherwise vested and any vested stock options shall remain outstanding and exercisable for twelve (12) months following the Executive’s termination of employment; and

 

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(vi) receive outplacement services by a firm selected by the Company at its expense in an amount not to exceed the lesser of $50,000 or 10% of the Executive’s Base Salary, and the Company will not provide for cash in lieu of this benefit; provided, however, that all such outplacement services must be completed, and all payments by the Company must be made, by December 31st of the second calendar year following the calendar year in which the Executive’s Separation from Service occurs.

Notwithstanding the foregoing, if the Executive terminates his employment for Good Reason due to the relocation of the Executive’s principal place of work, as set forth in Section 9(f)(iii) and such termination constitutes a Separation from Service, in lieu of payments and benefits set forth under Section 9(b)(i), (ii), (iii), (iv), (v) and (vi), the Executive shall be entitled to receive (A) the compensation and benefits provided under Sections 9(b)(i), (ii) and (iii) for a maximum period of twelve (12) months and under Section 9(b)(v), as provided in such provision and (B) a pro rata portion of the Executive’s LTPP Target Award Opportunity, if any, for the Company’s fiscal year during which the Executive’s termination occurs (but not for any later years) payable in accordance with the then existing terms of such cash incentive compensation, which shall not be payable until the Compensation Committee has determined that any incentive targets have been achieved and the subsequent designated payout has arrived, and each such payment shall be payable in accordance with the LTPP in the calendar year in which the payment is determined, and in all events, not later than December 31 st of the year in which each such award is determined.

Notwithstanding anything in this Section 9(b) to the contrary, to the extent the Executive has not executed the Release within the Release Consideration Period and delivered it to the Company, or has revoked the executed Release within the Release Revocation Period, as determined at the end of such Release Revocation Period, the Executive will forfeit any right to receive the payments and benefits specified in this Section 9(b) (other than any accrued but unpaid payments and benefits through the date of termination of employment).

(c) Termination by Death or Disability . If the Executive dies or becomes Disabled, as defined in Section 9(e), prior to the expiration of the Employment Term, the Executive’s employment will terminate, and the Executive, or in the case of death, the Executive’s beneficiary, or if none, the Executive’s estate, shall be entitled to:

(i) in the event of the Executive’s death, receive an amount equal to twelve (12) months Base Salary payable in a lump on the date of the Executive’s death; in the case of Disability, provided that such termination constitutes a Separation from Service, receive from the Company periodic payments equal to his Base Salary in effect prior to the termination of his employment, which payments shall be paid to the Executive in equal installments on the regular payroll dates under the Company’s payroll practices applicable to the Executive on the date of this Agreement for 12 months commencing on the Separation from Service date; provided, however, that in the event that the Executive is a Specified

 

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Employee, with respect to any amount payable by reason of the Separation from Service that constitutes deferred compensation within the meaning of Section 409A of the Code, such installments shall commence the earlier to occur of (A) the first business day of the seventh month following the date of the Executive’s Separation from Service or (B) death, except that on the first day of the seventh month following the date of the Executive’s Separation from Service (or the Executive’s death, if earlier), the Executive shall be paid a lump-sum cash payment equal to the aggregate amount of any such payments that constitutes deferred compensation within the meaning of Section 409A of the Code that the Executive would have been entitled to receive during the applicable period following the Executive’s Separation from Service;

(ii) in the case of Disability, continue participation in any health care and life plans for a period of twelve (12) months or in the event of the Executive’s death, receive any health care benefits under the terms of the Employee Plans; and

(iii) receive a pro rata portion of the Executive’s Bonus Award and LTPP Target Award Opportunity, if any, for the Company’s fiscal year during which the Executive’s death or Disability occurs (but not for any later years) payable in accordance with the then existing terms of such cash incentive compensation, which shall not be payable until the Compensation Committee has determined that any incentive targets have been achieved and the subsequent designated payout has arrived, and each such payment shall be payable in accordance with the LTPP or the STIP, as applicable, in the calendar year in which such payments, as applicable, are determined, and in all events, not later than December 31 st of the year in which each such award is determined; and

(iv) accelerated vesting of any unvested deferred shares, restricted shares and stock options, and payment thereof on the date of, and exercise of any unexercised vested stock options for a period of twelve (12) months following, Separation from Service due to the Executive’s death or Disability;

provided , however , if the Executive also becomes entitled to receive benefits under a long-term disability plan (“LTD Plan”) now or hereafter paid for by the Company, then the Executive’s disability benefits under Section 9(c)(i) (calculated on a monthly basis) shall be reduced by the amount of the benefits paid under such LTD Plan.

(d) Cause . For purposes of this Agreement, “Cause” shall mean:

(i) any act or omission constituting a material breach by the Executive of any provisions of this Agreement or the willful failure by the Executive to perform his duties hereunder (other than any such failure resulting from the Executive’s Disability), after demand for performance is delivered by the Company that identifies the manner in which the Company believes the Executive has not performed his duties, if, within thirty (30) days of such demand, the Executive fails to cure any such failure capable of being cured;

 

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(ii) any intentional act or misconduct materially injurious to the Company or any Subsidiary, financial or otherwise, or the misappropriation, fraud, embezzlement or conversion by the Executive of the Company’s or any of its Subsidiary’s property in connection with the Executive’s duties or in the course of the Executive’s employment with the Company;

(iii) the conviction or plea of no contest of the Executive for any felony or the indictment of the Executive for any felony involving fraud, moral turpitude, embezzlement or theft in connection with the Executive’s duties or in the course of the Executive’s employment with the Company;

(iv) the commission of any intentional or knowing violation of any antifraud provision of the federal or state securities laws or the Board reasonably believes that the Executive has committed any of the acts referred to in this Section 9(d)(iv);

(v) there is a final, non-appealable order in a proceeding before a court of competent jurisdiction or a final order in an administrative proceeding finding that the Executive committed any willful misconduct or criminal activity (excluding traffic violations or other minor offenses) which commission is materially inimical to the interests of the Company or any Subsidiary, whether for his personal benefit or in connection with his duties for the Company or any Subsidiary;

(vi) current alcohol or prescription drug abuse affecting work performance;

(vii) current illegal use of drugs; or

(viii) violation of the Company’s Code of Corporate Conduct.

For purposes of this Agreement, no act or failure to act on the part of the Executive shall be deemed “intentional” if it was due primarily to an error in judgment or negligence, but shall be deemed “intentional” only if done or omitted to be done by the Executive not in good faith and without reasonable belief that the Executive’s action or omission was in the best interest of the Company.

(e) Disability . For purposes of this Agreement, “Disability” or “Disabled” shall mean:

(i) the Executive’s incapacity due to physical or mental illness to substantially perform his duties and the essential functions of his position, with or without reasonable accommodation, on a full-time basis for at least six (6) months in any 12-month period as determined by the Board in its reasonable discretion, and within thirty (30) days after a notice of termination is thereafter given by the Company, the Executive shall not have returned to the full-time performance of the Executive’s duties; or

 

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(ii) the Executive becomes eligible to receive benefits under the Company’s LTD Plan;

provided , however , if the Executive shall not agree with a determination to terminate his employment because of Disability, the q


 
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