Exhibit 10.28
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this “ Agreement ”) is made and
entered into as of December 31, 2008 and amends and restates
the Employment Agreement (the “ Original Employment
Agreement ”), originally entered into as of
November 17, 2003 (the “ Effective Date ”),
by and among SPRINT CORPORATION, renamed SPRINT NEXTEL CORPORATION,
a Kansas corporation (“ Sprint ”), SPRINT/UNITED
MANAGEMENT COMPANY, a Kansas corporation and subsidiary of Sprint
(“ SUMC ”) (Sprint, SUMC and the subsidiaries of
Sprint are collectively referred to herein as the “
Company ”), and PAGET L. ALVES (“
Executive ”).
Recitals
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1.
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Because the
Company is mindful of Executive’s attractiveness in the
competitive marketplace, both within and outside of the
telecommunications industry, it desires to insure his employment
with the Company and to provide him appropriate compensation
arrangements that continue to motivate him to focus on and increase
shareholder value.
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2.
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The Company
desires to continue to secure the long-term employment of
Executive.
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3.
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Executive and
the Company desire to amend and restate the Original Employment
Agreement as provided herein.
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4.
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Certain
capitalized terms used herein are defined parenthetically
throughout this Agreement or defined in Section 6 of this
Agreement.
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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, the
parties hereby amend and restate the Original Employment Agreement
as follows:
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1.
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Employment
and Termination
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1.01.
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Conditions of Employment
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Subject to the terms of this
Agreement, the Company hereby agrees to continue to employ
Executive as President—Sales and Distribution, with such
authority, power, responsibilities, and duties customarily
exercised by a person holding such position in a company of the
size and nature of the Company.
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1.02.
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Performance of Duties
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Executive shall, during his
employment with the Company, owe an undivided duty of loyalty to
the Company and agrees to use his best efforts to promote and
develop the business of the Company. Executive agrees that, during
his employment with the Company, he must devote his full business
time, energies, and talents to serving as a senior executive
officer of the Company
and that he shall perform his duties faithfully
and efficiently subject to the directions of the Board.
Notwithstanding the foregoing, Executive may, subject in all cases
to the Company’s Principles of Business Conduct (or any
successor code of conduct) (i) serve as a director, trustee,
or officer or otherwise participate in not-for-profit educational,
welfare, social, religious, and civic organizations;
(ii) serve as a director of any for-profit business listed on
Exhibit A hereto or, with prior consent as required pursuant to the
Principles of Business Conduct (or any successor code of conduct),
serve as a director of any for-profit business that is not a
Competitor; and (iii) acquire passive investment interests in
one or more entities, to the extent that the other activities do
not inhibit or interfere with the performance of Executive’s
duties under this Agreement, or to the knowledge of Executive
conflict in any material way with the business or policies of the
Company.
The term of Executive’s
employment under this Agreement (the “ Employment Term
”) began on the Effective Date and ends on Executive’s
65th birthday (the “ End Date ”). This Agreement
sets forth certain terms of Executive’s employment during the
Employment Term, the consequences of any termination of employment
during the Employment Term, and the terms of certain restrictive
covenants by Executive during and after the Employment Term. The
Company and Executive agree that the employment relationship is at
will, and either party may terminate the employment relationship
for any reason in accordance with the procedures and with the
consequences set forth in this Agreement.
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1.04.
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Procedures for Termination
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Except as set forth below, any
purported termination of this Agreement or of Executive’s
employment by the Company or by Executive during the Employment
Term, other than by Executive’s death, shall be communicated
by a written notice of termination to the other party hereto
delivered in accordance with Section 14 below indicating the
specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so
indicated. Any such termination will be effective on the
Termination Date.
The Company may not terminate
Executive’s employment for Cause during the Employment Term
until it delivers to Executive a written notice stating that
Executive is guilty of conduct constituting Cause by reference to
one or more clauses of Section 6.06 and specifying the
particulars thereof in reasonable detail.
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(c)
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Good Reason
Termination
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Executive may terminate his
employment for Good Reason at any time during the Employment Term
following written notice and an opportunity for the Company to
cure. In order to effect a termination for Good Reason, Executive
must deliver a written notice to the Company within 60 days
following the event or circumstance giving rise to
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Executive’s claim of Good
Reason. The notice must set forth the specific event or
circumstance giving rise to Good Reason by reference to one or more
clauses of the definition of Good Reason set forth in
Section 6.18 of this Agreement. If, within 30 days following
notice from Executive, the Company corrects, in all material
respects, the events or circumstances giving rise to
Executive’s claim for Good Reason, Executive shall not be
entitled to terminate his employment for Good Reason by reason of
such event or circumstance.
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(d)
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Payment of
Compensation Earned Through Termination Date
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Upon a termination of
Executive’s employment hereunder for any reason, Executive
or, in the event of his death, Executive’s estate, in
addition to any other payments or benefits to which Executive may
be entitled hereunder, is entitled to
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(i)
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Executive’s Base Salary prorated through
the date of Separation from Service,
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(ii)
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any payment
under the Incentive Plan for Performance Periods ending before the
date of Separation from Service, unless eliminated or reduced, and
then only to the extent that such payments are eliminated or
reduced, for all Similarly Situated Executives, and
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(iii)
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any vacation
pay for vacation accrued by Executive in the calendar year of
termination but not taken at the date of Separation from
Service.
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Except as otherwise provided herein,
the Company must pay any other employee benefits to which Executive
is entitled by reason of his employment to Executive or his estate
at the time or times required by the terms of the applicable
Company plan or policy.
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(e)
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Effect of
Termination on Other Positions
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If, on the Termination Date,
Executive (i) is a member of the Board or any board of
directors of one of Sprint’s subsidiaries, (ii) serves
on the board of directors of any other corporation by nomination,
appointment, or designation by Sprint or any of its subsidiaries,
or (iii) holds any other position with Sprint or any of its
subsidiaries, Executive shall, unless otherwise agreed to by the
Company, be deemed to have resigned from all such positions as of
the Termination Date. Executive agrees to execute such documents
and take such other actions as the Company may request to reflect
such resignations.
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(f)
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Condition to
Certain Payments
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Payments under Section 4 are
conditioned on Executive’s compliance with the requirements
of Section 4.02(b).
At the Company’s request,
Executive shall participate in an exit interview prior to
Executive’s last day worked as an employee of the Company to
provide for the orderly
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transition of his duties, to arrange
for the return of the Company’s property, to discuss his
intended new employment, and to discuss and complete such other
matters as may be necessary to ensure full compliance with this
Agreement.
Subject to the terms of this
Agreement, during the Employment Term, while Executive is employed
by the Company, the Company will compensate him for his services as
follows:
Executive shall receive an annual
base salary in an amount not less than his annual salary on the
Effective Date, payable in monthly or more frequent installments in
accordance with the Company’s payroll policies and practices
(such annual base salary as adjusted pursuant to this
Section 2.01 shall hereinafter be referred to as the “
Base Salary ”). Executive’s Base Salary shall be
reviewed, and may be increased but not decreased below the rate in
effect on the Effective Date (other than across-the-board
reductions similarly affecting all Similarly Situated Executives),
by the Board in a manner that is fair and pursuant to its normal
performance review policies for Similarly Situated
Executives.
Executive will continue to
participate in the Incentive Plan, subject to its terms and
conditions as they may from time to time be established, amended,
interpreted, or terminated in accordance with the Company’s
plans or policies governing such benefits to Similarly Situated
Executives generally. Executive’s Targeted Compensation under
the Incentive Plan shall be reviewed, and may be increased but not
decreased below his Targeted Compensation in effect in 2003 (other
than across-the-board reductions similarly affecting all Similarly
Situated Executives), by the Board in a manner that is fair and
pursuant to its normal performance review policies for Similarly
Situated Executives.
The Company will provide Executive
with the employee benefits (including, without limitation, life,
disability, medical and dental insurance coverage, participation in
the Company’s Deferred Compensation Plan, Savings Plan, and
the Pension Plan, and other benefits generally provided to
Similarly Situated Executives) that are no less favorable in the
aggregate to Executive than those provided to him as of the
Effective Date, subject to amendment, modification, interpretation
by the Company, or termination in accordance with the
Company’s plans or policies governing such benefits to
Similarly Situated Executives generally.
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2.04.
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Confidentiality of Agreement.
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Executive shall not disclose or
discuss the existence of this Agreement or any of the terms of this
Agreement except
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(i)
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to members of
his immediate family,
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(ii)
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to his
financial advisor or attorney, but then only to the extent
necessary for them to assist him,
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(iii)
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to a potential
employer on a strictly confidential basis, and then only to the
extent necessary for reasonable disclosure in the course of serious
negotiations, or
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(iv)
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as required by
law or to enforce his legal rights.
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2.05.
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Expense
Reimbursement
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The Company will reimburse Executive
for reasonable out-of-pocket expenses incurred and accounted for in
accordance with the policies and procedures of the Company for
Similarly Situated Executives generally, as they may from time to
time be established, interpreted, amended, or
terminated.
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3.01.
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Principles of Business
Conduct
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Executive shall adhere in all
respects to the Company’s Principles of Business Conduct (or
any successor code of conduct) as they may from time to time be
established, interpreted, amended, or terminated.
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3.02.
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Proprietary Information
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Executive acknowledges that during
the course of his employment he has learned or will learn or
develop Proprietary Information. Executive further acknowledges
that unauthorized disclosure or use of such Proprietary
Information, other than in discharge of Executive’s duties,
will cause the Company irreparable harm. Except in the course of
his employment with the Company under this Agreement, in the
pursuit of the business of the Company, or as otherwise required in
employment with the Company, Executive shall not, during the course
of his employment or at any time following termination of his
employment, directly or indirectly, disclose, publish, communicate,
or use on his behalf or another’s behalf, any Proprietary
Information. If during or after his employment Executive has any
questions about whether particular information is Proprietary
Information he shall consult with the Company’s Corporate
Secretary or other representative designated by the
Company.
Executive also agrees to promptly
disclose to the Company any information, ideas, or inventions made
or conceived by him that result from or are suggested by services
performed by him for the Company under this Agreement, and to
assign to the Company all rights pertaining to such information,
ideas, or inventions. Knowledge or information of any kind
disclosed by Executive to the Company shall be deemed to have been
disclosed without obligation on the part of the Company to hold the
same in confidence, and the Company shall have the full right to
use and disclose such knowledge and information without
compensation to Executive beyond that specifically provided in this
Agreement.
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Alves Employment
Agreement
During Executive’s employment
with the Company and during the Non-Compete Period, Executive shall
not engage in Competitive Employment, whether paid or unpaid and
whether as a consultant, employee, or otherwise.
If Executive ceases to be employed
by the Company because of the sale, spin-off, divestiture, or other
disposition by the Company of a subsidiary, division, or other
divested unit employing Executive, this provision shall continue to
apply during the Non-Compete Period, except that Executive’s
continued employment for the subsidiary, division, or other
divested unit disposed of by the Company shall not be deemed a
violation of this provision.
Executive agrees that because of the
worldwide nature of the Company’s business, breach of this
Agreement by accepting Competitive Employment would irreparably
injure the Company and that, therefore, a limited geographic
restriction is neither feasible nor appropriate to protect the
Company’s interests.
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3.04.
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Inducement of Employees, Customers and
Others
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During Executive’s employment
with the Company and during the Non-Compete Period, Executive shall
not directly or indirectly solicit, induce, or encourage any
employee, consultant, agent, or customer of the Company, or vendor
or other parties doing business with the Company, to terminate
their employment, agency, or other relationship with the Company or
to render services for or transfer business to any Competitor, and
Executive shall not initiate discussion with any such person for
any such purpose or authorize or knowingly cooperate with the
taking of any such actions by any other individual or entity on
behalf of the Competitor.
During the Non-Compete Period,
Executive shall not, without the prior written consent of the
Company, in any manner, solicit, request, advise, or assist any
other person to (a) undertake any action that would be
reasonably likely to, or is intended to, result in a Change in
Control, or (b) seek to control in any material manner the
Board.
Executive shall, upon his
Termination Date, return to the Company all property of the Company
in his possession, including all notes, reports, sketches, plans,
published memoranda, or other documents, whether in hard copy or in
electronic form, created, developed, generated, received, or held
by Executive during his employment, concerning or related to the
Company’s business, whether containing or relating to
Proprietary Information or not. Executive shall not remove, by
e-mail, by removal of computer discs or hard drives, or by other
means, any of the above property containing Proprietary
Information, or reproductions or copies thereof, or any apparatus
from the Company’s premises without the Company’s
written consent.
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3.07.
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Mutual
Non-disparagement
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Executive agrees to refrain from
making any statements about the Company or its officers or
directors that would disparage, or reflect unfavorably upon the
image or reputation of the Company or any such officer or director.
The Company agrees to use reasonable efforts to prevent its
directors and officers from making any statements about Executive
that would disparage, or reflect unfavorably upon the image or
reputation of, Executive.
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3.08.
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Assistance with Claims
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Executive agrees that, consistent
with Executive’s business and personal affairs, during and
after his employment by the Company, he will assist the Company in
the defense of any claims or potential claims that may be made or
threatened to be made against it in any action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative (“ Proceeding ”) and will assist
the Company in the prosecution of any claims that may be made by
the Company in any Proceeding, to the extent that such claims may
relate to Executive’s services provided under this
Agreement.
Executive agrees, unless precluded
by law, to promptly inform the Company if Executive is asked to
participate (or otherwise become involved) in any Proceeding
involving such claims or potential claims.
Executive also
agrees, unless precluded by law, to promptly inform the Company if
Executive is asked to assist in any investigation (whether
governmental or private) of the Company (or its actions),
regardless of whether a lawsuit has then been filed against the
Company with respect to such investigation. The Company agrees to
reimburse Executive for all of Executive’s reasonable
out-of-pocket expenses associated with such assistance, including
travel expenses and any attorneys’ fees and shall pay a
reasonable per diem fee (equal to 1/250 th of his Base Salary rate at his
Termination Date) for Executive’s services within 30 days of
such services.
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3.09.
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Key Man
Life Insurance
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The Company may, at its discretion,
purchase for its own benefit and at its own expense, key man life
insurance on the life of Executive. Neither Executive nor
Executive’s spouse or dependents shall have any right, title,
or interest in or to such insurance or the proceeds thereof.
Executive agrees to cooperate with the life insurance company and
the Company in the insurance underwriting process, including
submitting to a physical examination and other tests necessary to
secure coverage, and signing all appropriate applications and
written forms as may be required by the insurance
company.
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4.
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Payments On
Certain Terminations
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4.01.
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Payments
on Certain Terminations
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If, during the Employment Term,
(a) the Company terminates Executive’s employment with
the Company for any reason other than (x) Cause or
(y) Executive’s Total Disability or (b) Executive
terminates his employment with the Company for Good Reason and, in
either event, such termination constitutes a Separation from
Service, then Executive shall, subject to the applicable provisions
of this Section 4, be entitled to the following payments and
benefits (the “ Severance Benefits
”):
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(i)
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The Company will pay Executive
his Base Salary, at the rate in effect prior to his termination of
employment, in equal bi-weekly installments on the regular payroll
dates under the Company’s payroll practices applicable to
Executive on the date of this Agreement for the Severance Period,
except that (A) if the Release Consideration and Revocation
Period ends on or after December 15 th of the calendar year of
Executive’s Separation from Service, such installments that
are otherwise payable in the 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
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)
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The Company
will pay Executive, at the time and in the amounts set forth
immediately below, Executive’s (x) bonus amount earned
under the Incentive Plan for that portion of the Termination
Performance Period ending on Executive’s date of Separation
from Service and (y) the bonus amount under the Incentive Plan
for the Severance Period. Such amounts shall be calculated and paid
as follows:
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(A)
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For the
Termination Performance Period, the Company will pay Executive, at
the time when payouts are made for that Performance Period, an
amount equal to the Termination Period Incentive Payout.
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(B)
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For the Post I
Termination Performance Period, the Company will pay Executive, at
the time when payouts are made for that Performance Period, an
amount equal to the Capped Incentive Payout for such Performance
Period or, alternatively, in the event that the Severance Period
ends within such Performance Period, the Capped Incentive Payout
for such Performance Period prorated through the month in which the
Severance Period ends.
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(C)
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In the event
that the Severance Period ends in the Post II Termination
Performance Period, the Company will pay Executive, at the time
when payouts are made for that Performance Period, the Capped
Incentive Payout for such Performance Period prorated through the
month in which the Severance Period ends.
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For purposes of Sections 4.01(ii)
(B) and (C), in determining whether to count the month in
which the Severance Period ends, if the end of the Severance
Period
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falls on a date on or before the
15th of a month, such month shall not be counted but, if the end of
the Severance Period falls on a date after the 15th of a month,
such month shall be counted.
This Section 4.01(ii) assumes
that Performance Periods under the Incentive Plan are 12 months in
length. To the extent that Performance Periods are greater or
lesser than 12 months, the above payout schedule shall be
appropriately adjusted by the Company, either by increasing or
decreasing the number of Performance Periods in which severance
payouts shall be made, such that (i) the final payment made to
Executive under this Section 4.01(ii) shall be made at the
time payouts are made for the Performance Period in which the
Severance Period ends, and (ii) Executive shall receive no
less than nor no greater than the amount, using concepts and
formulas consistent with those provided in this
Section 4.01(ii), that would have accrued and been payable to
Executive under the Incentive Plan for the Severance Period had the
Performance Periods remained 12 months in length.
Notwithstanding
anything in this Section 4.01(ii) to the contrary, each such
payment shall be payable in accordance with the provisions of the
Incentive Plan in the calendar year in which the Termination Period
Incentive Payout or Capped Incentive Payout, as applicable, is
determined, and in all events, not later than
December 31 st of the year in which each such
payout is determined.
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(iii)
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During the
Severance Period, the Company will provide any employee benefit
(including, but not limited to, executive medical, dental and life
coverage, qualified or nonqualified retirement benefits, and other
benefits generally provided to Similarly Situated Executives other
than country club membership dues and accrual of vacation) that
Executive was receiving or was entitled to receive as of the date
of Separation from Service, except that long-term disability and
short-term disability benefits shall cease on Executive’s
date of Separation from Service, but if Executive becomes employed
full-time during the Severance Period, Executive’s
entitlement to continued participation in any medical, dental or
other group health plan sponsored by the Company shall immediately
cease, except that Executive shall retain any rights to continue
coverage under the COBRA continuation provisions of such
Company’s group health care plans by paying the applicable
premium therefor.
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(iv)
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During the
Severance Period, the Company will pay for outplacement counseling
by a firm selected by the Company to continue until the earlier of
such time as Executive becomes re-employed or the end of the
Severance Period; 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 Executive’s Separation from
Service occurs.
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(v)
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The end of the
Severance Period will be treated as Executive’s termination
date for purposes of the Company’s stock option and
restricted stock programs.
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In all events, Executive’s right to
receive the Severance Benefits shall cease immediately if Executive
is re-employed by the Company or an Affiliate of the Company or if
Executive breaches any of the Restrictive Covenants. In all cases,
the Company’s rights under Section 5 shall
continue.
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4.02.
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Other
Provisions Regarding Payments and Benefits
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(a)
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No
Mitigation; No Offset
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In the event of any termination of
employment resulting in payments under this Section 4,
Executive need not seek other employment and, except as expressly
provided herein, there shall be no offset against amounts due to
Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that he may
obtain.
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(b)
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Settlement
and Release
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The payments and benefits provided
for hereunder shall be in full settlement and satisfaction of all
of Executive’s claims and demands relating to or arising out
of his employment with the Company or the termination thereof
except for any claims Executive may have against the Company under
this Agreement and any indemnification agreements entered into
between Executive and the Company. The Company’s obligation
to provide such payments and benefits is expressly made subject to
and conditioned upon Executive executing a Release within the
Release Consideration Period and delivering it to the Company with
the Release Revocation Period expired without
revocation.
Notwithstanding anything in the
Release and Section 4.01 to the contrary, to the extent
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
