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1997 LONG-TERM STOCK INCENTIVE PROGRAM

Executive Compensation Plan Agreement

1997 LONG-TERM STOCK INCENTIVE PROGRAM | Document Parties: SPRINT NEXTEL CORP You are currently viewing:
This Executive Compensation Plan Agreement involves

SPRINT NEXTEL CORP

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Title: 1997 LONG-TERM STOCK INCENTIVE PROGRAM
Governing Law: Kansas     Date: 2/27/2009
Industry: Communications Services     Sector: Services

1997 LONG-TERM STOCK INCENTIVE PROGRAM, Parties: sprint nextel corp
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Exhibit 10.9

1997 LONG-TERM STOCK INCENTIVE PROGRAM

(As Modified for Recombination Pursuant to Capital Changes Provisions,

May 13, 1999 2-1 FON Stock Split,

January 14, 2000 2 -1 PCS Stock Split, August 7, 2000,

October 10, 2000, December 11, 2001, February 10, 2004, February 28, 2004,

October 11, 2004, August 12, 2005 and November 5, 2008 Amendments.)

Section 1. Purpose. The purposes of the Sprint Nextel 1997 Long-Term Stock Incentive Program (the “Plan”) are to encourage Directors of Sprint Nextel Corporation (the “Company”) and officers and selected key employees of the Company and its Affiliates to acquire a proprietary and vested interest in the growth and performance of the Company, to generate an increased incentive to contribute to the Company’s future success and prosperity, thus enhancing the value of the Company for the benefit of stockholders, and to enhance the ability of the Company and its Affiliates to attract and retain individuals of exceptional talent upon whom, in large measure, the sustained progress, growth and profitability of the Company depends. The portion of any Award that would provide for a “deferral of compensation” (as such term is defined under Code Section 409A), but for the fact that such Award is earned and vested under the Plan prior to January 1, 2005 (the “Grandfathered Award”), if any, shall be governed by the terms of the Plan and applicable Award Agreement as in effect on October 3, 2004, and as subsequently amended on October 11, 2004 and August 12, 2005. Amendments made effective October 11, 2004 and August 12, 2005 did not result in a material modification of the Plan as in effect on October 3, 2004. Nothing in this amended Plan document shall affect deferred amounts under the Plan that were earned and vested prior to January 1, 2005. It is intended that Grandfathered Awards be grandfathered from the application of Code Section 409A. The determination of whether a portion of an Award is earned and vested under the Plan prior to January 1, 2005 shall be made in accordance with Code Section 409A and the guidance and Treasury regulations issued thereunder. The portion of any Award that provides for a “deferral of compensation” (as such term is defined under Code Section 409A) that is earned and vested under the Plan after December 31, 2004 (the “Non-Grandfathered Award”) shall be subject to the application of Code Section 409A and the guidance and Treasury regulations issued thereunder, to the extent applicable.

Section 2. Definitions. As used in the Plan, the following terms shall have the meanings set forth below:

(a) “Affiliate” shall mean (i) any Person that directly, or through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company or (ii) any entity in which the Company has a significant equity interest, as determined by the Committee.

(b) “Award” shall mean any Option, Restricted Stock Award, Performance Share, Performance Unit, Dividend Equivalent, Other Stock Unit Award, or any other right, interest, or option relating to Shares granted pursuant to the provisions of the Plan.


(c) “Award Agreement” shall mean any written agreement, contract, or other instrument or document evidencing any Award granted hereunder and signed by both the Company and the Participant.

(d) “Board” shall mean the Board of Directors of the Company.

(e) “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

(f) “Committee” means the Compensation Committee of the Board, composed of not less than two directors each of whom is a Non-Employee Director.

(g) “Company” shall mean Sprint Nextel Corporation.

(h) “Dividend Equivalent” shall mean any right granted pursuant to Section 14(h) hereof.

(i) “Employee” shall mean any employee of the Company or of any Affiliate.

(j) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time and as interpreted and implemented by the rules and regulations issued thereunder.

(k) “Executive Officer” shall mean an officer of the Company that is subject to the liability provisions of Section 16 of the Exchange Act.

(l) “Fair Market Value” shall mean, with respect to any property, the market value of such property determined by such methods or procedures as shall be established from time to time by the Committee; except that the “Fair Market Value” of a share of common stock of the Company for purposes of Section 6 and Section 11 shall mean the average of the high and low prices of the common stock for composite transactions, as published by major newspapers, for the date in question or, if no trade of the common stock shall have been made on that date, the next preceding date on which there was a trade of common stock.

(m) “Grant Date” shall mean the date as of which an Award is made to a Participant. For an Option, the Grant Date cannot be a date earlier than the date of the action granting the Option.

(n) “Incentive Stock Option” shall mean an Option granted under Section 6 hereof that is intended to meet the requirements of Section 422 of the Code or any successor provision thereto.

(o) “Non-Employee Director” shall have the meaning provided for in Rule 16b-3(b)(3) under the Exchange Act, 17 CFR §240.16b-3(b)(3), as amended.

(p) “Non-Qualified Stock Option” shall mean an Option granted to a Participant under Section 6 hereof that is not intended to be an Incentive Stock Option.

 

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(q) “Normal Retirement” with respect to any Employee, shall mean Retirement at or later than an age qualifying as “normal retirement” under the Company’s defined benefit pension plan, whether or not the person is a participant in that plan and, with respect to any Outside Director, shall mean Separation From Service as an Outside Director at the mandatory retirement age or term limit for members of the Board under its policies, as amended from time to time.

(r) “Option” shall mean any right granted to a Participant under the Plan allowing such Participant to purchase Shares at such price or prices and during such period or periods as the Committee shall determine.

(s) “Other Stock Unit Award” shall mean any right granted to a Participant by the Committee pursuant to Section 9 hereof.

(t) “Outside Director” shall mean a member of the Board who is not an Employee of the Company or of any Affiliate.

(u) “Participant” shall mean an Employee or Outside Director who is selected to receive an Award under the Plan.

(v) “Performance Award” shall mean any Award of Performance Shares or Performance Units pursuant to Section 8 hereof.

(w) “Performance Period” shall mean that period established by the Committee at the time any Performance Award is granted or at any time thereafter during which any performance goals specified by the Committee with respect to such Award are to be measured.

(x) “Performance Share” shall mean any grant pursuant to Section 8 hereof of a unit valued by reference to a designated number of Shares, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including, without limitation, cash, Shares, or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee shall establish at the time of such grant or thereafter.

(y) “Performance Unit” shall mean any grant pursuant to Section 8 hereof of a unit valued by reference to a designated amount of property other than Shares, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including, without limitation, cash, Shares, or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee shall establish at the time of such grant or thereafter.

(z) “Person” shall mean any individual, corporation, partnership, association, joint-stock company, trust, unincorporated organization, or government or political subdivision thereof.

(aa) “Resignation with Good Reason” shall mean a Separation From Service resulting from a resignation of a Participant after a Change in Control for the reasons specified in the Participant’s employment agreement, or in the event a

 

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Participant is an Employee but has no employment agreement, or the employment agreement has no provision for resignation with good reason following a Change in Control, “Resignation with Good Reason” shall mean a Separation From Service resulting from a resignation of a Participant following the occurrence, after a Change in Control, of any one or more of the following events or circumstances without that Participant’s prior written consent unless each of the events or circumstances are corrected in all material respects:

 

 

(i)

a substantial adverse change in the nature or status of the Participant’s duties from those in effect immediately before the Change in Control, any reduction in job grade or any substantial adverse alteration of the Participant’s title from that in effect immediately before the Change in Control;

 

 

(ii)

a reduction in the Participant’s base salary as in effect immediately before the Change in Control, except for across-the-board salary reductions similarly affecting all officers of the Company and all officers of any person in control of the Company;

 

 

(iii)

the failure, without the Participant’s consent, to pay to the Participant any portion of the Participant’s current compensation within seven days of the date it is due, except pursuant to an across-the-board compensation deferral similarly affecting all officers of the Company and all officers of any person in control of the Company;

 

 

(iv)

(A) the relocation of the Company’s principal executive offices to a location outside the metropolitan area in which such offices are located immediately before the Change in Control; or (B) the Company’s requiring the Participant to be based anywhere other than the Company’s principal executive offices except for required travel on the Company’s business to an extent substantially consistent with Participant’s present business travel obligations; or (C) the Company’s requiring the Participant to travel to an extent substantially inconsistent with the Participant’s business travel obligations as in effect immediately before the Change in Control;

 

 

(v)

a substantial and involuntary change in the physical conditions under or in which the Participant is expected to perform the Participant’s duties, other than a change similarly affecting all officers of the Company and all officers of any person in control of the Company;

 

 

(vi)

the Company’s failure to continue in effect any compensation plan in which the Participant participated immediately before the Change in Control and that is material to the Participant’s total compensation, including but not limited to the Management Incentive Plan or any substitute plans adopted before the Change in Control, unless an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to the terminated plan, or the Company’s failure to continue the Participant’s participation therein (or in such substitute or alternative plan) on a basis not materially less favorable, both in terms of the amount of benefits provided and the level of the Participant’s participation relative to other Participants, as existed at the time of the Change in Control;

 

 

(vii)

the Company’s failure to continue to provide the Participant with benefits substantially similar in the aggregate to those the Participant enjoyed under any of the Company’s benefit plans in which the

 

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Participant was participating at the time of the Change in Control; the taking of any action by the Company that would directly or indirectly materially reduce any of such benefits or deprive the Participant of any material fringe benefit enjoyed by Participant at the time of the Change in Control; or the failure by the Company to provide the Participant with the number of paid vacation days to which the Participant is entitled on the basis of years of service with the Company in accordance with the Company’s normal vacation policy in effect at the time of the Change in Control; unless, in any of the foregoing events in this clause (viii), an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to such benefits;

 

 

(viii)

the Company’s failure to obtain a satisfactory agreement from any successor to assume and agree to perform any employment agreement between the Participant and the Company in effect at the time of the Change in Control; or

 

 

(ix)

the Company’s attempt to terminate the Participant’s employment without complying with the procedures set forth in any employment agreement between the Participant and the Company in effect as of the Change in Control.

(bb) “Restricted Stock” shall mean any Share issued with restrictions on the holder’s right to sell, transfer, pledge, or assign such Share and with such other restrictions as the Committee, in its sole discretion, may impose (including, without limitation, any restriction on the right to vote such Share, and the right to receive any cash dividends), which restrictions may lapse separately or in combination at such time or times, in installments or otherwise, as the Committee may deem appropriate.

(cc) “Restricted Stock Award” shall mean an award of Restricted Stock under Section 7 hereof.

(dd) “Retirement” shall mean, in the case of an Employee, termination of employment by an Employee who is entitled to receive payment of pension benefits in accordance with the Sprint Retirement Pension Plan or the Employee’s employer’s defined benefit pension plan, if any, immediately after the Employee’s Termination Date and, in the case of an Outside Director, Separation From Service as an Outside Director after five years of service as an Outside Director.

(ee) “Seasoned Shares” means with respect to any Person, shares of common stock of the Company (i) acquired by such Person from the Company and owned by such Person for a period of at least six months; or (ii) acquired by such Person other than from the Company.

(ff) “Separation From Service” means a “separation from service” as such term is defined under Code Section 409A and the Treasury regulations issued thereunder. Except as otherwise required to comply with Code Section 409A, an employee shall be considered not to have had a Separation From Service where the level of bona fide services performed continues at a level that is at

 

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least 21 percent or more of the average level of service performed by the employee during the immediately preceding 36-month period (or if providing services for less than 36 months, such lesser period) after taking into account any services that the employee provided prior to such date or that the Company and the employee reasonably anticipate the employee may provide (whether as an employee or independent contractor) after such date.

For purposes of the determination of whether a Participant has had a “separation from service” as described under Code Section 409A and the guidance and Treasury regulations issued thereunder, the terms “Sprint Nextel,” “employer” and “service recipient” mean Sprint Nextel Corporation and any affiliate with which Sprint Nextel Corporation would be considered a single employer under Code Section 414(b) or 414(c), provided that in applying Code Sections 1563(a)(1), (2), and (3) for purposes of determining a controlled group of corporations under Code Section 414(b), the language “at least 50 percent” is used instead of “at least 80 percent”, each place it appears in Code Sections 1563(a)(1), (2) and (3), and in applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Code Section 414(c), “at least 50 percent” is used instead of “at least 80 percent” each place it appears in Treasury Regulation Section 1.414(c)-2.

(gg) “Shares” shall mean shares of Series 1 common stock, $2.00 par value, and such other securities of the Company as the Committee may from time to time determine.

(hh) “Stockholders Meeting” shall mean the annual meeting of stockholders of the Company in each year.

(ii) “Termination Date” shall mean (i) with respect to any Employee, the date on which the Employee ceases to be employed by the Company, or any Affiliate, and ceases to receive severance benefits under any applicable plan for the payment of severance benefits by the employing entity, or (ii) with respect to any Outside Director, the date of the Outside Director’s Separation From Service.

(jj) “Termination for Cause” shall mean, in the case of an Employee, an involuntary termination of employment because (i) the Employee has materially breached the Company’s Code of Ethics, or the code of ethics of the employer; (ii) the Employee has materially breached the Sprint Employee Agreement Regarding Property Rights and Business Practices (as it may be amended and renamed from time to time); (iii) the Employee has engaged in acts or omissions constituting dishonesty, intentional breach of a fiduciary obligation, or intentional acts of wrongdoing or misfeasance; or (iv) the Employee has acted intentionally and in bad faith in a manner that results in a material detriment to the assets, business, or prospects of the employer.

In determining whether any particular Employee was Terminated for Cause, the characterization of the reason for termination used for purposes of other employee benefit plans of the Company or the Employee’s employer shall apply to this Plan.

 

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In the case of an Outside Director, “Termination for Cause” means removal for cause from service as a director.

(kk) “Total Disability” shall mean, in the case of an Employee, Separation From Service, under circumstances that would make the Employee eligible to receive benefits under the employer’s long-term disability plan and, in the case of Outside Directors, Separation From Service as an Outside Director resulting from circumstances that would make the Outside Director eligible to receive Social Security disability benefits.

(ll) “1989 Plan” shall mean the Long-Term Stock Incentive Program adopted by the Company’s stockholders in 1989, as amended.

(mm) “total outstanding Shares” means, the total shares outstanding of Series 1 and Series 2 common stock.

Section 3. Administration. The Plan shall be administered by the Committee. The Committee shall have full power and authority, subject to such orders or resolutions not inconsistent with the provisions of the Plan as may from time to time be adopted by the Board, to: (i) select the Participants to whom Awards may from time to time be granted hereunder; (ii) determine the type or types of Awards to be granted to each Participant hereunder; (iii) determine the number of Shares to be covered by each Award granted hereunder; provided, however, that Shares subject to Options granted to any individual Participant during any calendar year shall not exceed a total of 7,500,000 Shares; (iv) determine the terms and conditions, not inconsistent with the provisions of the Plan, of any Award granted hereunder; (v) determine whether, to what extent and under what circumstances Awards may be settled in cash, Shares or other property, or canceled or suspended; (vi) determine whether, to what extent and under what circumstances cash, Shares and other property and other amounts payable with respect to an Award under this Plan shall be deferred either automatically or at the election of the Participant, provided that no Option shall be deferred; (vii) interpret and administer the Plan and any instrument or agreement entered into under the Plan; (viii) establish such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (ix) make any other determination and take any other action that the Committee deems necessary or desirable for administration of the Plan. Decisions of the Committee shall be final, conclusive and binding upon all persons, including the Company, any Participant, any stockholder, and any employee of the Company or of any Affiliate.

The Corporate Secretary shall have the discretion and authority to establish any and all procedures, forms, and rules of a ministerial nature that the Corporate Secretary considers necessary or desirable for the orderly administration of the Plan and shall have other administrative responsibilities as set forth elsewhere in the Plan.

The Committee shall appoint an administrator of the Plan for purposes of interpreting and administering the provisions of Section 11 of the Plan.

 

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For purposes of this section, shares granted pursuant to the last sentence of Section 4(a) shall be counted in the year granted, not in the year first exercisable.

Section 4. Shares Subject to the Plan.

(a) Subject to adjustment as provided in Section 4(b), the total number of Shares available for grant under the Plan in a calendar year shall be nine tenths of one percent (0.9%) of the total outstanding Shares as of the first day of calendar year 1997, plus a number of Shares equal to the number of Shares available for grant under the 1989 Plan as of the close of business on the date of the 1997 Stockholders Meeting, for calendar year 1997, and one and one-half percent (1.5%) of the total outstanding Shares as of the first day of each such year for which the Plan is in effect beginning with calendar year 1998 and ending with calendar year 2007 plus 10,000,000 Shares; provided that such number shall be increased in any year by the number of Shares available for grant hereunder in previous years but not covered by Awards granted hereunder in such years; and provided further, that no more than 10,000,000 Shares shall be cumulatively available for the grant of Incentive Stock Options under the Plan. In addition, any Shares issued by the Company through the assumption or substitution of outstanding grants from an acquired company shall not reduce the shares available for grants under the Plan. Any Shares issued hereunder may consist, in whole or in part, of authorized and unissued shares or treasury shares. If any Shares subject to any Award granted hereunder or the Award itself are forfeited, cancelled, expired, or otherwise terminated without the issuance of such Shares or of other consideration in lieu of such Shares pursuant to the terms of the Award, the Shares subject to such Award, to the extent of any such forfeiture, cancellation, expiration, or termination, shall again be available for grant under the Plan. The number of shares with respect to which Options are granted in any calendar year may exceed the total number of Shares available for grant under the Plan in such year (taking into account all other Awards granted in such year), provided that the terms of the Options provide that they may only be exercised to the extent of the number of Shares available for grant at the time of exercise, and provided further that this sentence shall not be construed to increase the total number of shares reserved for issuance pursuant to the Plan.

(b) In the event of any merger, reorganization, consolidation, recapitalization, stock dividend, spin-off, or other change in the corporate structure affecting the Shares, such adjustment shall be made in the aggregate number and class of Shares which may be delivered under the Plan, in the number and class of shares that may be subject to an option granted to any individual in any year under the Plan, in the number, class and option price of Shares subject to outstanding Options granted under the Plan, and in the value of, or number or class of Shares subject to, Awards granted under the Plan as may be determined to be appropriate by the Committee, in its sole discretion, provided that the number of Shares subject to any Award shall always be a whole number and provided further, that any Option, as so adjusted, shall be exempt from, or compliant with, the requirements of Code Section 409A and the Treasury regulations issued thereunder. In the case of an adjustment with respect to an Option, (i) the

 

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excess of the aggregate value of the shares subject to an Option immediately after the adjustment over the aggregate exercise price of such shares cannot exceed the excess of the aggregate value of the shares subject to the Option immediately before the adjustment over the aggregate exercise price of such shares, and (ii) the ratio of the exercise price to the market value of the shares subject to the Option immediately after the adjustment cannot be more favorable to the optionee than the ratio of the exercise price to the value of the shares subject to the Option immediately before the adjustment.

Section 5. Eligibility. Any Employee or Outside Director shall be eligible to be selected as a Participant.

Section 6. Stock Options. Options may be granted hereunder to Participants either alone or in addition to other Awards granted under the Plan. Any Option granted to a Participant under the Plan shall be evidenced by an Award Agreement in such form as the Committee may from time to time approve. Any such Option shall be subject to the following terms and conditions and to such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall deem desirable:

(a) Exercise Price. The exercise price per Share purchasable under an Option shall be determined by the Committee in its sole discretion; provided that such exercise price shall not be less than the Fair Market Value of the Share on the date of the grant of the Option.

(b) Option Period. The term of each Option shall be fixed by the Committee in its sole discretion; provided that no Incentive Stock Option shall be exercisable after the expiration of ten years from the date the Option is granted.

(c) Exercisability. Options shall be exercisable at such time or times as determined by the Committee at or subsequent to grant. Unless otherwise determined by the Committee at or subsequent to grant, no Incentive Stock Option shall be exercisable until the first anniversary date of the granting of the Incentive Stock Option.

(d) Method of Exercise. Subject to the other provisions of the Plan and any applicable Award Agreement, any Option may be exercised by the Participant in whole or in part at such time or times, and the Participant may pay the exercise price in such form or forms, including, without limitation, payment by delivery of cash, Shares or other consideration (including, where permitted by law and the Committee, Awards) having a Fair Market Value on the exercise date equal to the total exercise price, or by any combination of cash, Shares and other consideration, as the Committee may permit.

(e) Incentive Stock Options. In accordance with rules and procedures established by the Committee, the aggregate Fair Market Value (determined as of the time of grant) of the Shares with respect to which Incentive Stock Options held by any Participant that are exercisable for the first time by such Participant during any calendar year under the Plan (and under any other benefit plans of the Company or of any parent or subsidiary corporation of the Company) shall

 

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not exceed $100,000 or, if different, the maximum limitation in effect at the time of grant under Section 422 of the Code, or any successor provision, and any regulations promulgated thereunder. The terms of any Incentive Stock Option granted hereunder shall comply in all respects with the provisions of Section 422 of the Code, or any successor provision, and any regulations promulgated thereunder.

(f) Form of Settlement. In its sole discretion, the Committee may provide, at the time of grant, that the shares to be issued upon an Option’s exercise shall be in the form of Restricted Stock or other similar securities, or may reserve the right so to provide after the time of grant.

(g) Standard Terms of Options. Unless the Committee, or an Executive Officer or committee of Executive Officers under Section 14(i), specifies otherwise, the terms set forth in this Section 6(g) shall apply to all Options granted under this Plan. Any Option Award Agreement that incorporates the terms of the Plan by reference shall be deemed to have incorporated the terms set forth in this Section 6(g) to the extent that these terms are not in conflict with those terms explicitly set forth in the Option Award Agreement.

 

 

(i)

Each Option shall be a Non-Qualified Stock Option.

 

 

(ii)

The Grant Date of each Option shall be the date of the Committee’s action granting the Option, or the date of the action by the Executive Officer or committee of Executive Officers under Section 14(i).

 

 

(iii)

The Exercise Price of each Option shall be the Fair Market Value of one Share of the class of common stock subject to the Option on the Grant Date.

 

 

(iv)

The Option Period of each Option shall end on the close of business on the tenth anniversary of the Option’s Grant Date. The Option shall not be exercisable after its Option Period.

 

 

(v)

Each Option shall become exercisable with respect to 25% of the number of Shares subject to the Option on each of the first four anniversaries of the Grant Date if, on such anniversary date, the Participant shall have been continuously employed by the Company or an Affiliate, or continuously served as an Outside Director, from the Grant Date.

 

 

(vi)

Each Option may be exercised after the Participant’s Termination Date only with respect to the number of Shares that were exercisable on the Participant’s Termination Date (including Options exercisable under Section 6(g)(vii)). A Participant may exercise an Option before the expiration of the Option Period with respect to those shares during a limited period beginning on the Participant’s Termination Date


 
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