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EX-10.1 - EX-10.1 - Clearwire Corp /DE | v55662exv10w1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
The Securities Exchange Act of 1934
April 30, 2010
Date of Report (Date of earliest event reported)
Date of Report (Date of earliest event reported)
CLEARWIRE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation) |
1-34196 (Commission File Number) |
56-2408571 (IRS Employer Identification No.) |
4400 Carillon Point, | ||
Kirkland, WA (Address of principal executive offices) |
98033 (Zip Code) |
Registrants telephone number, including area code: (425) 216-7600
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Board of Directors Changes
On April 30, 2010, Sean Maloney informed Clearwire Corporation (the Company) of his decision to
resign from his position on the Companys Board of Directors and not stand for re-election at this
time. Mr. Maloneys resignation, effective immediately, is not due to any disagreements with the
Company on any matters relating to the Companys operations, policies, or practices, but rather due
to his previously announced medical leave of absence from Intel Corporation (Intel). Intel has
informed the Company that it believes Mr. Maloneys prognosis for a full recovery is excellent and
that he is expected to resume all of his business responsibilities after a period of recuperation.
Intel intends to nominate Mr. Maloney to return to the Companys Board of Directors after he
resumes his duties at Intel.
In the interim, Intel nominated Arvind Sodhani, Executive Vice President of Intel and President,
Intel Capital, to the Companys Board of Directors, to replace Mr. Maloney. The nomination of Mr.
Sodhani was made pursuant to the terms of the Equityholders Agreement dated November 28, 2008 by
and among the Company, Intel, Sprint Nextel Corporation (Sprint), Google Inc. (Google),
Comcast Corporation (Comcast), Time Warner Cable Inc. (Time Warner Cable), Bright House
Networks LLC (Bright House Networks), and Eagle River Holdings, LLC. The Board of Directors then
elected Mr. Sodhani to the Board at its April 30, 2010 meeting.
Adoption of Executive Continuity Plan; Termination of Change in Control Severance Plan
Additionally, on April 30, 2010, the Company adopted a 2010 Executive Continuity Plan (the
Plan) for its executive officers (the Executive Officers). The Company established the Plan
to pay benefits under certain circumstances to its Executive Officers as compensation for certain
types of termination.
In connection with the execution of the Plan, the Company terminated its pre-existing Change in
Control Severance Plan. The terms of the Change in Control Severance Plan are still in effect until
November 28, 2010 for any qualifying terminations relating to the transactions under the
Transaction Agreement and Plan of Merger dated May 7, 2008 by and among the Company and Sprint,
Comcast, Time Warner Cable, Bright House Networks, Google, and Intel (collectively, the Investors).
The new Plan provides for severance pay and benefits to the Executive Officers for both
terminations of employment relating to a Change in Control (as defined in the Plan) and
terminations not relating to a Change in Control. If an Executive Officers employment is
terminated by the Company for any reason other than Cause (as defined in the Plan) or death or
disability and such termination is not related to a Change in Control, the severance pay and
benefits would consist of: (i) a cash benefit equal to 150% of target annual compensation (the sum
of annual base salary and annual target bonus) for the chief executive officer and 100% of target
annual compensation for all other Executive Officers, (ii) continuing health care coverage for 24
months for the chief executive officer and 12 months for all other Executive Officers, and (iii)
accelerated vesting of all unvested equity awards that would otherwise vest within 12 months of
the date of termination.
If an Executive Officers employment is terminated during the by the Company for any reason other
than Cause or death or disability, or by the Executive Officer for Good Reason (as such term is
defined in the Plan) and such termination occurs (a) within 2 years of the date of a Change in
Control or (b) in the period between the commencement of a Change in Control transaction and the
closing of such transaction and such termination occurred due to the request or instruction of a
third party attempting to effect the Change in Control, the severance pay and benefits would
consist of: (i) a cash benefit equal to 200% of target annual compensation for the chief executive
officer and 150% of target annual compensation for all other Executive Officers, (ii) continuing
health care coverage for 24 months for the chief executive officer and 12
months for all other Executive Officers, and (iii) accelerated vesting an all unvested
equity awards with a maximum one year exercise period from the date of termination.
To be entitled the benefits under the Plan, an Executive Officer must enter into a Participation
Agreement with the Company, waiving any other rights to severance benefits that the Executive
Officer may have with the Company. Additionally, to the extent permitted by applicable law, the
Executive Officer must execute a Non-Competition Agreement with the Company to receive any benefits
under the Plan. For severance benefits not relating to a Change in Control, the noncompetition
period is 18 months for the chief executive officer and one year for all other Executive Officers.
For severance benefits relating to a Change in Control the noncompetition period is two years for
the chief executive officer and 18 months for all other Executive Officers.
Any cash payments the Executive Officers become entitled to under the Plan would be paid out in
regular installments over a period equal to the term of the noncompetition agreements to which the
Executive Officers would be bound. Additionally, upon the exercise and sale by an Executive Officer
of equity vested pursuant to acceleration under the Plan, fifty percent of the net cash proceeds
will be held in a third-party escrow for the term of each Executive Officers noncompetition
agreement and subject to compliance with such agreement. If the amounts payable to an Executive
Officer under the Plan results in the Executive Officer becoming liable for the payment of any
excise taxes pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the
Code), the Executive Officer will receive the greater on an after-tax basis of (a) the severance
benefits payable or (b) a reduced severance benefit to avoid the imposition of the Section 280G
excise tax under the Code.
Change in
Control is defined in the Plan to mean the occurrence of any of the following: (i) an
acquisition of securities of the Company by a person (other than
the Investors) of more
than 50% of the voting power of the Companys securities; (ii) the current members of the Board
ceasing to constitute a majority of the Board; (iii) the
consummation of (a) a merger,
consolidation or reorganization of the Company, (b) a complete liquidation or dissolution of the
Company or (c) the sale or other disposition of all or substantially all of the U.S assets of the
Company; and (iv) the date as of which no class of the Companys equity securities is, or is
required to be, listed on a national securities exchange. Cause is defined to mean a good faith
determination by the Company that any of the following has occurred: (i) the Executive Officers
indictment for or conviction of a felony or crime involving fraud or that would negatively affect
the Companys reputation; (ii) proof of material violation of a key Company policy by the
Executive Officer; (iii) the Executive Officers continued insubordination or dereliction of duty
after receiving written warning; (iv) the Executive Officers material breach of a confidentiality
agreement; or (v) the Executive Officers failure to reasonably cooperate in any audit or
investigation of the business or financial practices of the Company. Good Reason is defined to
mean any of the following: (i) a significant, adverse change in the Executive Officers duties or
responsibilities; (ii) a relocation of the Executive Officers principal office to a location more
than 30 miles from the Executive Officers then current office; (iii) a material reduction of the
Executive Officers salary or bonus potential; or (iv) a material breach by the Company of its
obligations to the Executive Officer.
The foregoing description of the Plan is a general description only and is qualified in
its entirety by reference to the full Plan, a copy of which is attached hereto as Exhibit 10.1
and incorporated herein by reference.
Item 9.01. Financial Statements, Pro Forma Financial Information and Exhibits.
(d) Exhibits.
Exhibit No. | Description of Exhibit | |
10.1
|
Clearwire Corporation 2010 Executive Continuity Plan |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has
duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned,
hereunto duly authorized.
CLEARWIRE CORPORATION |
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Dated: April 30, 2010 | By: | /s/ Broady R. Hodder | ||
Broady R. Hodder | ||||
Senior Vice President and General Counsel | ||||