Exhibit 10.35
Executive Deferred Compensation
Plan
(as amended and restated
effective January 1, 2008)
ARTICLE I
PURPOSE
The purpose of the Sprint Nextel
Corporation Executive Deferred Compensation Plan (hereinafter
referred to as the “Plan”) is to provide funds for
retirement or death for executive employees (and their
Beneficiaries) of Sprint Nextel Corporation and its subsidiaries.
It is intended that the Plan will aid in retaining and attracting
employees of exceptional ability by providing such employees with a
means to supplement their standard of living at retirement. The
Plan, as amended, restated and renamed and as set forth herein,
shall be effective as of January 1, 2008 for the purpose of
permitting deferrals of compensation earned and vested after
December 31, 2004 and any amounts credited thereon, including
pursuant to paragraphs 6.3 or 6.4. All amounts deferred under the
Plan prior to January 1, 2005, that were earned and vested
prior to January 1, 2005, and any amounts credited thereon
(including pursuant to paragraphs 6.3 or 6.4), shall be governed by
the terms of the Plan as in effect on October 3, 2004 and as
subsequently amended on October 11, 2004. Amendments made
effective October 11, 2004 were to change the Plan Year to the
calendar year beginning in 2006 and to require deferral elections
to be made before the beginning of the Plan Year, and these
amendments did not result in a material modification of the Plan as
in effect on October 3, 2004. Nothing in this amended,
restated and renamed Plan document shall affect deferred amounts
under the Plan that were earned and vested prior to January 1,
2005 and any amounts credited thereon. It is intended that all
amounts deferred under the Plan that were earned and vested prior
to January 1, 2005, and any amounts credited thereon, shall be
grandfathered from the application of Internal Revenue Code
Section 409A. The determination of whether amounts deferred
under the Plan, or any amounts credited thereon, were earned and
vested prior to January 1, 2005 shall be made in accordance
with Internal Revenue Code Section 409A and the guidance and
Treasury regulations issued thereunder.
ARTICLE II
DEFINITIONS
For the purposes of this Plan, the
following words and phrases shall have the meanings indicated,
unless the context clearly indicates otherwise:
2.1 Account Transfer Request
. “Account Transfer Request” means a written notice, in
a form prescribed by the Company, by a Participant to transfer all
or any portion of one Deferred Benefit Account to another Deferred
Benefit Account as provided for in paragraph 6.6.
EDCP 11.04.08
2.2 Amendment of Payment Election Form .
“Amendment of Payment Election Form” means a written
notice, in a form prescribed by the Company, filed with the Company
by a Participant to change the manner in which such
Participant’s Deferral Benefits are to be paid.
2.3 Beneficiary .
“Beneficiary” means the person, persons or entity
designated by the Participant, or as provided in Article VIII, to
receive any benefits payable under the Plan. Any Participant
Beneficiary Designation shall be made in a written instrument filed
with the Company and shall become effective only when received,
accepted and acknowledged in writing by the Company.
2.4 Board .
“Board” means the Board of Directors of the
Company.
2.5 Committee .
“Committee” means the Employee Benefits Committee of
Sprint Nextel, as appointed by management of Sprint
Nextel.
2.6 Company .
“Company” means Sprint Nextel Corporation, or any
successor thereto.
2.7 Compensation .
“Compensation” means (i) Base Salary earned during
the Plan Year, and (ii) Annual Incentive Compensation and
Long-Term Incentive Compensation payable to a Participant with
respect to a performance period beginning during the Plan Year,
other than a distribution under this Plan.
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(a)
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Annual
Incentive Compensation .
“Annual Incentive Compensation” means any cash
incentive compensation earned by a Participant over a period of one
year or less.
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(b)
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Base
Salary . “Base
Salary” means all regular cash remuneration for services,
other than such items as Annual Incentive Compensation, payable by
the Employer to a Participant in cash, but before reduction for
amounts deferred pursuant to this Plan or any other Plan of the
Employer.
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EDCP 11.04.08
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(c)
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Long-Term
Incentive Compensation .
“Long-Term Incentive Compensation” means cash incentive
compensation, if any, earned by a Participant over a period of more
than one year.
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2.8 Deferral Benefit .
“Deferral Benefit” means the benefit payable to a
Participant or the Participant’s Beneficiary at the time and
in the form provided, and as calculated, in Article VII
hereof.
2.9 Deferred Benefit Account
. “Deferred Benefit Account” means the accounts
maintained on the books of account of the Employer for each
Participant pursuant to Article VI. Separate Deferred Benefit
Accounts shall be maintained for each Participant to reflect
(a) separate deferral elections and (b) Account A and
Account B elections.
A Participant’s Deferred
Benefit Accounts shall be used solely as a device for the
measurement and determination of the amounts to be paid to the
Participant pursuant to this Plan. A Participant’s Deferred
Benefit Account shall not constitute or be treated as a trust fund
of any kind. Unless the context requires otherwise, “Deferred
Benefit Account” shall mean the aggregate balance of all
accounts of a Participant.
2.10 Determination Date .
“Determination Date” means the date on which the amount
of a Participant’s Deferred Benefit Account is determined as
provided in Article VI hereof. The last day of each calendar month
shall be a Determination Date.
2.11 Disability .
“Disability” or “Disabled Participant”
means a physical or mental condition of a Participant resulting in
a determination of disability for purposes of receiving benefits
under the Employer’s Long-Term Disability Insurance
Plan.
2.12 Employer . Except as
otherwise provided in paragraph 7.1, “Employer” means
Sprint Nextel Corporation and, unless specifically excluded from
participation by the Committee, any affiliate with which Sprint
Nextel Corporation would be considered a single employer under
Internal Revenue Code Section 414(b) or 414(c), provided that
in applying Internal Revenue Code Sections 1563(a)(1), (2) and
(3) for purposes of determining a controlled group of
corporations under Internal Revenue Code Section 414(b), the
language “at least 50 percent” is used instead of
“at least 80 percent” each place it appears in Internal
Revenue Code Sections 1563(a)(1), (2) and (3), and in applying
Treasury Regulation
EDCP 11.04.08
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Section 1.414(c)-2 for purposes of
determining trades or businesses (whether or not incorporated) that
are under common control for purposes of Internal Revenue 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.
2.13 Internal Revenue Code .
“Internal Revenue Code” means the Internal Revenue Code
of 1986, as amended or supplemented from time to time. References
to any section of the Internal Revenue Code shall be to that
section as it is renumbered, amended, supplemented or
re-enacted.
2.14 Interest Yield .
“Interest Yield” means with respect to any calendar
month the greater of (i) the prime rate in effect at Citibank,
N.A. at the opening of business on the first business day of the
month, or if said bank, for any reason, no longer publishes its
prime rate, the prime rate similarly determined of another major
bank selected by the Company and (ii) six percent per
annum.
2.15 Participant .
“Participant” means any individual who is designated by
the Company in accordance with paragraph 4.1 to participate in this
Plan and who elects to participate by filing a Participation
Agreement as provided in Article IV.
2.16 Participation Agreement
. “Participation Agreement” means the agreement, in a
form prescribed by the Company, filed with the Company by a
Participant before the beginning of the period in which the
Participant’s Compensation is to be deferred pursuant to the
Plan and the Participation Agreement. A new Participation Agreement
shall be filed by the Participant for each separate Base Salary
deferral election and for each Annual Incentive Compensation
deferral election and, if applicable, each Long-Term Incentive
Compensation deferral election not accompanying a Base Salary
deferral election.
2.17 Plan .
“Plan” means the Sprint Nextel Corporation Executive
Deferred Compensation Plan as set forth in this document, effective
for amounts earned and vested after December 31, 2004. The
Plan was previously known as the Sprint Corporation Executive
Deferred Compensation Plan.
EDCP 11.04.08
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2.18 Plan Administrator . “Plan
Administrator” means the person appointed by the Company to
represent the Company in the administration of this
Plan.
2.19 Plan Year . “Plan
Year” means a twelve month period commencing January 1
of a year and ending on December 31 of the same
year.
2.20 Retirement Plan .
“Retirement Plan” means the Sprint Retirement Pension
Plan, as amended from time to time.
2.21 Separation from Service
. “Separation from Service” has the same meaning as
described under Internal Revenue Code Section 409A and the
guidance and Treasury regulations issued thereunder. Except as
otherwise required to comply with Internal Revenue 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 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 Participant 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 Internal Revenue Code
Section 409A and the guidance and Treasury regulations issued
thereunder, the terms “Employer,”
“employer” and “service recipient” mean
Sprint Nextel Corporation and any affiliate with which Sprint
Nextel Corporation would be considered a single employer under
Internal Revenue Code Section 414(b) or 414(c), provided that
in applying Internal Revenue Code Sections 1563(a)(1), (2), and
(3) for purposes of determining a controlled group of
corporations under Internal Revenue Code Section 414(b), the
language “at least 50 percent” is used instead of
“at least 80 percent” each place it appears in Internal
Revenue 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 Internal Revenue 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.
EDCP 11.04.08
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2.22 Share Unit . “Share
Unit” means a measure of participation under the Plan having
a value based on the market value of one share of Series 1, common
stock of the Company.
2.23 Spouse .
“Spouse” means a Participant’s wife or husband
who was lawfully married to the Participant at the time when the
determination is relevant.
2.24 Sprint Insider .
“Sprint Insider” means, as of any time when the
determination thereof is relevant, any Participant subject to
liability under Section 16 of the Securities Exchange Act of
1934 with respect to trading in the equity securities of the
Company.
ARTICLE III
ADMINISTRATION
3.1 Plan Administrator; Company
and Committee; Duties . This Plan shall be administered by the
Committee. The Committee may be a consolidated Committee
administering other benefit plans of the Company in addition to
this Plan. The Committee shall have the authority to make, amend,
interpret, and enforce all appropriate rules and regulations for
the administration of this Plan and decide or resolve any and all
questions, including interpretations of this Plan, as may arise in
connection with the Plan. The Committee may appoint a Benefit
Administrative Committee and a Plan Administrator. The Committee
may delegate its duties for the day-to-day operations of the Plan
to the Plan Administrator and other duties to the Benefit
Administrative Committee. Members of the Committee, the Benefit
Administrative Committee and the Plan Administrator may be
Participants under this Plan.
3.2 Claim for Benefits . Any
claim for benefits under this Plan shall be made in writing to the
Plan Administrator. If a claim for benefits is wholly or partially
denied, the Plan Administrator shall so notify the Participant or
Beneficiary within 90 days after receipt of the claim. The notice
of denial shall be written in a manner calculated to be understood
by the Participant or Beneficiary and shall contain (a) the
specific reason or reasons for denial of the claim,
(b) specific references to the pertinent Plan provisions upon
which the denial is based, (c) a description of any additional
material or information necessary to perfect the claim together
with an explanation of why such material or information is
necessary and (d) an explanation of the claims review
procedure. The decision or action of the Plan
EDCP 11.04.08
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Administrator shall be final, conclusive and
binding on all persons having any interest in the Plan, unless a
written appeal is filed as provided in paragraph 3.3.
3.3 Review of Claim . Within
60 days after the receipt by the Participant or Beneficiary of
notice of denial of a claim, the Participant or Beneficiary may
(a) file a request with the Benefits Administrative Committee
that it conduct a full and fair review of the denial of the claim,
(b) review pertinent documents and (c) submit questions
and comments to the Committee in writing.
3.4 Decision After Review .
Within 60 days after the receipt of a request for review under
paragraph 3.3, the Benefits Administrative Committee shall deliver
to the Participant or Beneficiary a written decision with respect
to the claim, except that if there are special circumstances (such
as the need to hold a hearing) which require more time for
processing, the 60-day period shall be extended to 120 days upon
notice to the Participant or Beneficiary to that effect. The
decision shall be written in a manner calculated to be understood
by the Participant or Beneficiary and shall (a) include the
specific reason or reasons for the decision and (b) contain a
specific reference to the pertinent Plan provisions upon which the
decision is based.
ARTICLE IV
PARTICIPATION
4.1 Participation .
Participation in the Plan shall be limited to executives having a
job grade level of E14 or above, or any other employees designated
by the Committee, who elect to participate in the Plan by filing a
Participation Agreement with the Company. Participation Agreements
must be received by the Company by the last day of the calendar
year immediately preceding the Plan Year in which the Participation
Agreement is to first take effect, and the election to participate
shall be effective on the first day of the Plan Year following
receipt by the Company of a properly completed and executed
Participation Agreement.
4.2 Minimum and Maximum Deferral
and Length of Participation . A Participant may elect in any
Participation Agreement to defer a portion of the
Participant’s Compensation. Compensation deferred under a
Participation Agreement shall be distributed upon Separation from
Service in accordance with paragraph 7.1 unless the Participant
elects in such
EDCP 11.04.08
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Participation Agreement to defer distribution
until the later of Separation from Service or attainment of a
specified age. The minimum and maximum amounts that may be deferred
under any single Participation Agreement shall be in $100 units and
shall be as follows:
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Minimum Deferral
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Maximum Deferral
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With respect to
Base Salary Deferrals
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$300 per
month
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50% of Base
Salary
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With respect to
Annual Incentive Compensation
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25% of Annual
Incentive Compensation
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100%
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