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.
1997 LTSIP 11.04.08
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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
1997 LTSIP 11.04.08
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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:
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(i)
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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;
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(ii)
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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;
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(iii)
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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;
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(iv)
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(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;
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(v)
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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;
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(vi)
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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;
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(vii)
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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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1997 LTSIP 11.04.08
4
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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;
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(viii)
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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
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(ix)
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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.
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(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
1997 LTSIP 11.04.08
5
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.
1997 LTSIP 11.04.08
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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.
1997 LTSIP 11.04.08
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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
1997 LTSIP 11.04.08
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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
1997 LTSIP 11.04.08
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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.
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(i)
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Each Option
shall be a Non-Qualified Stock Option.
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(ii)
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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).
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(iii)
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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.
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(iv)
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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.
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(v)
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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.
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(vi)
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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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