Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement”) is made and entered into on May 8,
2009 as of May 20, 2009 (the “Effective Date”), by
and between Sprint Nextel Corporation, a Kansas corporation (the
“Company”) on behalf of itself and any of its
subsidiaries, affiliates and related entities, and Robert H.
Johnson (the “Executive”) (the Company and the
Executive, collectively, the “Parties,” and each, a
“Party”). Certain capitalized terms are defined in
Section 29.
WITNESSETH
:
WHEREAS, the Company desires to
employ the Executive the Company as President—CDMA and the
Executive desires to accept such employment; and
WHEREAS, the Executive and the
Company desire to enter into this Agreement.
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 agree as follows:
1. Employment .
(a) The Company will employ the
Executive and the Executive will 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
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 24 months commencing on the
Effective Date and shall continue through the second anniversary of
the Effective Date (the “Initial Employment Term”). 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 12 months (each, a
“Renewal Term”), unless, not less than 12 months prior
to the end of the Initial Employment Term or any Renewal Term,
either the Executive or the Company has given the other written
notice (in accordance with Section 20) of nonrenewal. The
Executive shall provide the Company with written notice of his
intent to terminate employment with the Company at least 30 days
prior to the effective date of such termination.
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3. Position and Duties of the
Executive .
(a) The Executive shall serve as
President—CDMA, and agrees to serve as an officer of any
enterprise 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 of the Company or such other officer of the
Company as may be designated by the Chief Executive Officer. The
Executive shall have such duties, responsibility and authority as
may be assigned to the Executive from time to time by the Chief
Executive Officer, the Board or such other officer of the Company
as may be designated by the Chief Executive Officer or the
Board.
(b) During the Employment Term, the
Executive shall, except as may from time to time be otherwise
agreed to in writing by the Company, during reasonable vacations
(as set forth in Section 7 hereof) and authorized leave and
except as may from time to time otherwise be permitted pursuant to
Section 3(c), devote his best efforts, full attention and
energies during his normal working time to the business of the
Company, to any duties as may be delineated in the Company’s
Bylaws 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
designated by the Board, or the Chief Executive Officer, in each
case, within the framework of the Company’s policies and
objectives.
(c) During the Employment Term, and
provided that such activities do not contravene the provisions of
Section 3(a) or (b) or Sections 10, 11, 12 or 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, subject to the prior approval of the Chief Executive
Officer serve as a member of the governing board of any such
organization or any private or public for-profit company. 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 an annual
base salary of $475,000 (the “Base Salary”), which Base
Salary shall be payable at the times and in the manner consistent
with the Company’s general policies regarding compensation of
the Company’s senior executives. The Base Salary will be
reviewed periodically by the Compensation Committee and may be
increased (but not decreased, except for across-the-board
reductions generally applicable to the Company’s senior
executives) from time to time in the Compensation Committee’s
sole discretion.
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(b) Incentive Compensation .
The Executive will 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.
(i) Annual Performance Bonus
. During the Employment Term, the Executive shall be entitled to
participate in the STIP, with such opportunities as may be
determined by the Compensation Committee in its sole discretion
(“Target Bonuses”), and as may be increased (but not
decreased, except for across-the-board reductions generally
applicable to the Company’s senior executives) from time to
time, and the Executive shall be entitled to receive full payment
of any award under the STIP, determined pursuant to the STIP (a
“Bonus Award”).
(ii) Long-Term Performance
Bonus . During the Employment Term, the Executive shall be
entitled to participate in the LTSIP with such opportunities, if
any, as may be determined by the Compensation Committee
(“LTSIP Target Award Opportunities”).
(iii) 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.
(iv) 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 as performance-based compensation under Section 162(m)
of the Code.
(c) Equity Compensation . The
Executive shall 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.
During the Employment Term, the Compensation Committee may, in its
sole discretion, grant equity awards to the Executive, which would
be subject to the terms of the respective award agreements
evidencing such grants and the applicable plan or
program.
(i) Sign-On Cash Bonus Award.
The Company will pay the Executive as cash sign-on bonus in the
amount of $75,000 not later than 30 days after the Effective Date,
provided, however, that if the Executive does not remain employed
by the Company through the first anniversary of the Effective Date,
the Executive will repay the Company this amount upon his
termination of employment unless the Executive’s employment
is terminated by the Company without Cause.
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(ii) Special Stock Option and
Performance Unit Award . The Compensation Committee hereby
grants to the Executive as of the Effective Date a special award of
154,333 stock options and 167,708 performance units, which shall be
subject to the terms and conditions of the award agreement attached
hereto as Exhibit A, and, except as otherwise provided in such
agreement, shall be governed by the provisions of the
LTSIP.
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, dental,
vision, 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.
(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
participate in the Company’s vacation policy in accordance
with the Company’s policy generally 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 (the “Place of
Performance”), except for travel reasonably required for
Company business. The Executive will relocate the Executive’s
residence to the area surrounding the Executive’s Place of
Performance within three months of the Effective Date, and to the
extent so relocated, the Company will pay or reimburse the
Executive’s relocation expenses in accordance with the
Company’s relocation policy applicable to senior executives.
If the Company relocates the Executive’s Place of Performance
more than 50 miles from his Place of Performance prior to such
relocation, the Executive shall relocate to a residence within the
greater of (a) 50 miles of such relocated Place of Performance
or (b) such total miles that does
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not exceed the total number of miles the
Executive commuted to his Place of Performance prior to relocation
of the Executive’s Place of Performance. To the extent the
Executive relocates his residence as provided in this
Section 8, the Company will pay or reimburse the
Executive’s relocation expenses in accordance with the
Company’s relocation policy applicable to senior executives.
Exceptions to the policy will be limited to home selling benefits
and shall be administered in a manner consistent with the
Company’s normal exception process subject in each case to
approval by the Chief Executive Officer.
9. Termination .
(a) Termination by the Company
for Cause or Resignation by the Executive Without Good Reason .
If, during the Employment Term, the Executive’s employment is
terminated by the Company for Cause, or if the Executive resigns
without Good Reason, 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 accrued but unpaid cash
compensation and vested benefits under any Employee Plan in
accordance with the terms of such Employee Plan and applicable
law.
(b) Termination by the Company
Without Cause or Resignation by the Executive for Good Reason
outside of the CIC Severance Protection Period . If, during the
Employment Term, the Executive’s employment is terminated by
the Company without Cause or the Executive terminates for Good
Reason prior to, or following expiration of, the CIC Severance
Protection Period and such termination constitutes a Separation
from Service or the Executive is entitled to severance compensation
and benefits under this Section 9(b) pursuant to the
provisions of Section 9(c), 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 any vested benefits under any Employee Plan
in accordance with the terms of such Employee Plan and applicable
law, 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, and in full satisfaction of the Executive’s
rights and any benefits the Executive might be entitled to under
the Separation Plan and this Agreement and any requirements of the
Worker Adjustment and Retraining Notification Act or similar law,
unless otherwise specified herein:
(i) 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 the Payment Period, except that 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 Code Section 409A, 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
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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;
(ii) (A) receive a pro rata
payment of the Bonus Award for the portion of the Company’s
current fiscal year prior to the date of termination of his
employment; (B) receive a pro rata payment of the Capped Bonus
Award for the portion of the Company’s current fiscal year
following the date of termination of his employment;
(C) receive for the next fiscal year following the fiscal year
during which his termination of employment occurs, the Capped Bonus
Award, or if his Payment Period ends during such fiscal year, a pro
rata portion of the Capped Bonus Award; and (D) if his Payment
Period ends in the second year following the fiscal year during
which the Executive’s termination of employment occurs,
receive payment of a pro rata portion of the Capped Bonus Award for
such fiscal year; provided , however , that to the
extent the Executive’s employment is terminated for Good
Reason due to a reduction of the Executive’s Target Bonus, in
accordance with Section 29(x)(ii), the Executive’s
Target Bonus for the purposes of this Section 9(b)(ii) shall
be the Executive’s Target Bonus immediately prior to such
reduction; and provided, further , that any pro rata payment
shall be determined based on the methodology for determining pro
rated awards under the STIP and each such payment shall be payable
in accordance with the provisions of the STIP in the calendar year
in which the Bonus Award or each Capped Bonus Award, as applicable,
is determined, and in all events, not later than
December 31 st of
the year in which each such award is determined;
(iii) continue from the date of
Separation from Service for the number of months equal to the
period of continuation coverage the Executive would be entitled to
pursuant to Section 4980B of the Code participation in the
Company’s group health plans at then-existing participation
and coverage levels comparable to the terms in effect from time to
time for the Company’s senior executives, including any
co-payment and premium payment requirements, for which the Company
shall deduct from each payment payable to the Executive pursuant to
Section 9(b)(i) the amount of any employee contributions
necessary to maintain such coverage for such period, except that
(A) following such period, the Executive shall retain any
rights to continue coverage under the Company’s group health
plans under the benefits continuation provisions pursuant to
Section 4980B of the Code by paying the applicable premiums of
such plans; and (B) the Executive shall no longer be eligible
to receive the benefits otherwise receivable pursuant to this
Section 9(b)(iii) as of the date that the Executive becomes
eligible to receive comparable benefits from a new
employer;
(iv) continue for the Payment Period
participation in the Company’s employee life insurance plans
at then-existing participation and coverage levels, comparable to
the terms in effect from time to time for the Company’s
senior executives, including any premium payment requirements, for
which the Company shall deduct from each payment payable to the
Executive pursuant to Section 9(b)(i) the amount of any
employee contributions necessary to maintain such coverage for such
period, except that the Executive shall no longer be
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eligible to receive the benefits
otherwise receivable pursuant to this Section 9(b)(iv) as of
the date that the Executive becomes eligible to receive comparable
benefits from a new employer; and
(v) receive outplacement services by
a firm selected by the Company at its expense in an amount not to
exceed $35,000; provided , however , that all such
outplacement services must be completed, and all payments by the
Company must be made, by December 31 st of
the second calendar year following the calendar year in which the
Executive’s Separation from Service occurs.
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 the Company
Without Cause or Resignation by the Executive for Good Reason
During the CIC Severance Protection Period . Subject to
(i)-(iv) below, if the Executive’s employment is
terminated by the Company without Cause, or the Executive
terminates employment for Good Reason, before the Employment Term
expires and during the CIC Severance Protection Period, and the
termination constitutes a Separation from Service, subject to the
terms of the CIC Severance Plan, the Executive will become entitled
to severance compensation and benefits under the CIC Severance Plan
as of (x) the date the Separation from Service occurs, or
(y) in the event of a Pre-CIC Termination, the date the Change
in Control occurs, as of which date all rights to severance
benefits under this Agreement will cease.
(i) The CIC Severance Plan will not
apply and the Executive will be entitled to severance compensation
and benefits under Section 9(b) of this Agreement if the
Executive (x) as of his Separation from Service is not a
Participant in, or (y) is otherwise not entitled to severance
compensation and benefits under, the CIC Severance Plan.
(ii) If the Executive is entitled to
severance benefits under the CIC Severance Plan as a result of a
Pre-CIC Termination, any benefits payable before the Change in
Control will be paid under this Agreement and any additional
benefits payable after the Change in Control will be paid under the
CIC Severance Plan.
(iii) In no event may there be
duplication of benefits under this Agreement and the CIC Severance
Plan.
(iv) The terms “Change in
Control” and “Pre-CIC Termination” are defined in
the CIC Severance Plan.
(d) Termination by Death . If
the Executive dies during the Employment Term, the
Executive’s employment will terminate and the
Executive’s
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beneficiary or if none, the
Executive’s estate, shall be entitled to receive from the
Company, the Executive’s accrued, but unpaid, Base Salary
through the date of termination of employment and any vested
benefits under any Employee Plan in accordance with the terms of
such Employee Plan and applicable law.
(e) Termination by Disability
. If the Executive becomes Disabled prior to the expiration of the
Employment Term, the Executive’s employment will terminate,
and provided that such termination constitutes a Separation from
Service, the Executive shall be entitled to:
(i) receive from the Company
periodic payments equal to his Base Salary in effect prior to the
termination of his employment (reduced by any amounts paid on a
monthly basis under any long-term disability plan (the “LTD
Plan”) now or hereafter sponsored by the Company), which
payments shall be paid to the Executive commencing on the
Separation from Service date for 12 months in equal installments on
the regular payroll dates under the Company’s payroll
practices applicable to the Executive on the date of this
Agreement; provided , however , that in the event
that the Executive is a Specified Employee, with respect to any
amount payable by reason of the Executive’s Separation from
Service that constitutes deferred compensation within the meaning
of Code Section 409A, such installments shall not commence
until the earlier to occur of (A) the first business day of
the seventh month following the date of the Executive’s
Separation from Service and (B) death, in which case the
Executive (or the Executive’s estate in the event of
Executive’s death) shall be paid on the earlier of
(1) the first day of the seventh month following the date of
the Executive’s Separation from Service and (2) the
Executive’s death a lump-sum cash payment equal to the
aggregate amount of any such payments that constitutes deferred
compensation within the meaning of Code Section 409A that the
Executive would have been entitled to receive during such period
following the Executive’s Separation from Service;
and
(ii) continue participation in the
Company’s group health plans at then-existing participation
and coverage levels for 12 months (measured from the
Executive’s Separation from Service), comparable to the terms
in effect from time to time for the Company’s senior
executives, including any co-payment and premium payment
requirements, and the Company shall deduct from each payment
payable to the Executive pursuant to Section 9(e)(i), the
amount of any employee contributions necessary to maintain such
coverage for such period; except that following such period, the
Executive shall retain any rights to continue coverage under the
Company’s group health plans under the benefits continuation
provisions pursuant to Code Section 4980B by paying the
applicable premiums of such plans.
(f) No Mitigation Obligation
. No amounts paid under Section 9 will be reduced by any
earnings that the Executive may receive from any other source. The
Executive’s coverage under the Company’s medical,
dental, vision and employee life insurance plans will terminate as
of the date that the Executive is eligible for
comparable
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benefits from a new employer. The
Executive shall notify the Company within 30 days after becoming
eligible for coverage of any such benefits.
(g) Forfeiture .
Notwithstanding the foregoing, any right of the Executive to
receive termination payments and benefits hereunder shall be
forfeited to the extent of any amounts payable after any breach of
Section 10, 11, 12, 13 or 15 by the Executive.
10. Confidential Information;
Statements to Third Parties .
(a) During the Employment Term and
on a permanent basis upon and following termination of the
Executive’s employment, the Executive acknowledges
that:
(i) all information, whether or not
reduced to writing (or in a form from which information can be
obtained, translated, or derived into reasonably usable form) or
maintained in the mind or memory of the Executive and whether
compiled or created by the Company, any of its Subsidiaries or any
affiliates of the Company or its Subsidiaries (collectively, the
“Company Group”), which derives independent economic
value from not being readily known to or ascertainable by proper
means by others who can obtain economic value from the disclosure
or use of such information, of a proprietary, private, secret or
confidential (including, without exception, inventions, products,
processes, methods, techniques, formulas, compositions, compounds,
projects, developments, sales strategies, plans, research data,
clinical data, financial data, personnel data, computer programs,
customer and supplier lists, trademarks, service marks, copyrights
(whether registered or unregistered), artwork, and contacts at or
knowledge of customers or prospective customers) nature concerning
the Company Group’s business, business relationships or
financial affairs (collectively, “Proprietary
Information”) shall be the exclusive property of the Company
Group;
(ii) the Proprietary Information of
the Company Group gained by the Executive during the
Executive’s association with the Company Group was or will be
developed by and/or for the Company Group through substantial
expenditure of time, effort and money and constitutes valuable and
unique property of the Company Group;
(iii) reasonable efforts have been
put forth by the Company Group to maintain the secrecy of its
Proprietary Information;
(iv) such Proprietary Information is
and will remain the sole property of the Company Group;
and
(v) any retention or use by the
Executive of Proprietary Information after the termination of the
Executive’s services for the Company Group will constitute a
misappropriation of the Company Group’s Proprietary
Information.
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(b) The Executive further
acknowledges and agrees that he will take all affirmative steps
reasonably necessary or required by the Company to protect the
Proprietary Information from inappropriate disclosure during and
after his employment with the Company.
(c) The Executive further agrees
that all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, electronic, or other tangible material
containing or constituting Proprietary Information, whether created
by the Executive or others, which shall come into his custody or
possession, regardless of medium, shall be and are the exclusive
property of the Company to be used by him only in the performance
of his duties for the Company. All such materials or copies thereof
and all tangible things and other property of the Company Group in
the Executive’s custody or possession shall be delivered to
the Company (to the extent the Executive has not already returned)
in good condition, on or before five business days subsequent to
the earlier of: (i) a request by the Company or (ii) the
Executive’s termination of employment for any reason or
Cause, including for nonrenewal of this Agreement, Disability,
termination by the Company or termination by the Executive. After
such delivery, the Executive shall not retain any such materials or
portions or copies thereof or any such tangible things and other
property and shall execute any statements or affirmations of
compliance under oath that the Company may require.
(d) The Executive further agrees
that his obligation not to disclose or to use information and
materials of the types set forth in Sections 10(a), 10(b) and 10(c)
above, and his obligation to return materials and tangible
property, set forth in Section 10(c) above, also extends to
such types of information, materials and tangible property of
customers of the Company Group, consultants for the Company Group,
suppliers to the Company Group, or other third parties who may have
disclosed or entrusted the same to the Company Group or to the
Executive.
(e) The Executive further
acknowledges and agrees that he will continue to keep in strict
confidence, and will not, directly or indirectly, at any time,
disclose, furnish, disseminat