exv10w1






Exhibit 10.1




CLEARWIRE CORPORATION




2010 EXECUTIVE CONTINUITY PLAN



(Effective April 30, 2010)


















 








TABLE OF CONTENTS




	 	 	 	 	 

	Article 1. Purpose
	 	 	1	 
	Article 2. Definitions
	 	 	1	 
	Article 3. Eligibility for Executive Continuity Benefits
	 	 	6	 
	Article 4. Regular Severance Benefit
	 	 	7	 
	Article 5. Change in Control Benefits
	 	 	7	 
	Article 6. Conditions and Limitations on Payment of Benefits
	 	 	8	 
	Article 7. Tax Cap/Golden Parachute
	 	 	9	 
	Article 8. Funding Policy and Method
	 	 	9	 
	Article 9. Employment Status; Withholding
	 	 	10	 
	Article 10. Successors to Company
	 	 	10	 
	Article 11. Modification or Termination of Plan
	 	 	10	 
	Article 12. Administration of Plan
	 	 	10	 
	Article 13. Miscellaneous Provisions
	 	 	11	 











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CLEARWIRE CORPORATION

2010 EXECUTIVE CONTINUITY PLAN

Effective April 30, 2010




Article 1. Purpose




     The Compensation Committee (as defined below) of Clearwire Corporation has approved this 2010
Executive Continuity Plan for certain senior executives of Clearwire Corporation and with whom
Clearwire Corporation enters into a Participation Agreement (as defined below). The Executive
Continuity Benefits (as defined below) are intended as a vehicle to help retain, incent and focus
highly qualified executives.



Article 2. Definitions




     Whenever used in connection with this Plan, the following capitalized terms shall have the
meanings set forth below.



     2.1 Anticipatory Termination means a termination of a Participant within the period
between (i) (a) the date that the Board approves the transaction resulting in the Change in Control
or (b) the date that any third party publicly announces its intention to engage in a transaction
that, if consummated, would result in a Change in Control (for example, by launching a public
tender or a proxy contest), as applicable, and (ii) the Closing Time in a manner that would entitle
such Participant to benefits hereunder if such termination occurred after the Closing Time, but
only if the Plan Administrator determines, as applicable, (x) the Employer terminated the
Participant’s employment at the request or instruction of a party who had taken steps reasonably
calculated to effect a Change in Control or (y) the Participant terminated his or her employment
due to an event that would have constituted Good Reason if the date on which the Change in Control
occurs was deemed to be the date immediately prior to the date of such event and such Good Reason
event occurred by virtue of the request or instruction of a third party who had taken steps
reasonably calculated to effect a Change in Control.



     2.2 Base Salary means the Participant’s annual base salary immediately prior to the
Termination Date (without giving effect after a Change in Control to any reduction in Base Salary
that constitutes Good Reason).



     2.3 Board means the Board of Directors of the Company.



     2.4 Cause means a good faith determination by the Company that any of the following
has occurred: (i) the Participant’s indictment for, or conviction of, a felony or a crime involving
fraud or a crime that would negatively affect the Company’s reputation if the Participant remained
in his/her position; (ii) proof of a material violation of a key Company policy by the Participant
(such policy violation must be of a substantial nature similar in magnitude to acts of harassment
or discrimination); (iii) the Participant’s continued insubordination or a gross dereliction of
duty by the Participant after written warning describing, with reasonable specificity, such
failure; (iv) the Participant’s material breach of the Company’s Employee Confidentiality and
Intellectual Property Agreement (or any similar or successor agreement) by the Participant; or (v)
the Participant’s failure to reasonably cooperate in any audit or investigation of the business or
financial practices of the Company or any of its subsidiaries.



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An act or omission shall not be “willful” if conducted with a reasonable belief that such act or
omission is in the best interests of the Company. Subject to the following sentence, the existence
of Cause shall be determined by the Plan Administrator in good faith and based on a reasonable
investigation of the underlying facts. Notwithstanding the foregoing, “Cause” for termination of a
Group I Participant shall not exist unless and until there shall have been delivered to the Group I
Participant a copy of a resolution duly adopted by the affirmative vote of not less than two-thirds
(2/3) of the entire membership of the Board at a meeting of the Board called and held for the
purpose (after reasonable notice to the Group I Participant and an opportunity for the Group I
Participant, together with the Group I Participant’s counsel, to be heard before the Board),
finding that in the good faith opinion of the Board the Group I Participant was guilty of the
conduct set forth above in (i), (ii), (iii), (iv) or (v) of this paragraph and specifying the
particulars thereof in detail.




     2.5 Change in Control means the occurrence of any of the following after the Effective
Date:



          (a) An acquisition of securities of the Company by any “Person” (as the term “person”
is used for purposes of Section 13(d) or 14(d) of the Securities and Exchange Act of 1934 (the
“Exchange Act”)) immediately after which such Person has “Beneficial Ownership”
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent
(50%) of the combined voting power of the Company’s then-outstanding securities entitled to vote in
the election of members of the Board (“Voting Securities”); provided, however, that the
following acquisitions of Voting Securities shall not constitute a Change in Control under this
clause (a): acquisitions by (i) an employee benefit plan (or a trust forming a part thereof)
maintained by (A) the Company or (B) any corporation or other Person the majority of the voting
power, voting equity securities or equity interest of which is owned, directly or indirectly, by
the Company (for purposes of this definition, a “Related Entity”), or (ii) any of the
Strategic Investors or their Controlled Affiliates in a transaction approved by the Board;




          (b) The individuals who, as of the Effective Date, are members of the Board (the
“Incumbent Board”), cease for any reason to constitute at least a majority of the members
of the Board; provided, however, that, if the election, or nomination for election by the Company’s
common stockholders, of any new director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of the Plan, be considered a member of the
Incumbent Board; and provided, further, however, that no individual shall be considered a member of
the Incumbent Board if such individual initially assumed office as a result of an actual or
threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a
“Proxy Contest”), including by reason of any agreement intended to avoid or settle any
Proxy Contest;




          (c) The consummation of:




          (i) A merger, consolidation or reorganization (1) with or into the Company or a Subsidiary of
the Company or (2) in which securities of the Company are issued (each, a “Merger”), unless
such Merger is a “Non-Control Transaction” (as hereinafter defined);




          (ii) A complete liquidation or dissolution of the Company; or



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          (iii) The sale or other disposition of all or substantially all of the U.S. assets of the
Company and its direct and indirect Subsidiaries taken as a whole to any Person (other than (x) a
transfer to a Related Entity or (y) a transfer under conditions that would constitute a Non-Control
Transaction, with the disposition of assets being regarded as a Merger for this purpose); or




          (d) The date as of which no class of the Company’s equity securities is, or is required to be,
listed on a national securities exchange.



Notwithstanding the foregoing, a Change in Control shall not be deemed to occur under clauses (a),
(b) or (c) above solely because any Person (the “Subject Person”) acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Voting Securities as a result
of the acquisition of Voting Securities by the Company which, by reducing the number of Voting
Securities then outstanding, increases the proportional number of shares Beneficially Owned by the
Subject Persons; provided, that, if a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Voting Securities by the Company and, after such share
acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional
Voting Securities and such Beneficial Ownership increases the percentage of the then outstanding
Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur.




     2.6 Code means the Internal Revenue Code of 1986, as amended.



     2.7 Company means Clearwire Corporation.



     2.8 Compensation Committee means the compensation committee of the Board, or the Board
or any subcommittee of the Board upon the assumption of the responsibilities of the compensation
committee of the Board.



     2.9 Controlled Affiliate means, with respect to any Person, any other Person directly
or indirectly under the control of that Person.



     2.10 Closing Time means the time as of which a Change in Control is consummated.



     2.11 Disability means the Participant’s inability, due to physical or mental
incapacity, to substantially perform his/her duties and responsibilities to the Company for a
period of six (6) consecutive months or for an aggregate of one hundred eighty (180) days during
any period of twelve (12) consecutive months.



     2.12 Effective Date means April 30, 2010.



     2.13 Equity Awards means stock options, stock appreciation rights, restricted stock,
restricted stock units or other similar rights with respect to the Company.



     2.14 ERISA means the Employee Retirement Income Security Act of 1974, as amended.



     2.15 Executive Continuity Benefits mean the benefits under this Plan.



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     2.16 Good Reason means the occurrence of any of the following during the Protection
Period: (i) a significant, adverse change in the Participant’s duties, authorities or
responsibilities; (ii) a relocation of the Participant’s principal office to a location more than
thirty (30) miles from the Participant’s then current office; (iii) a material reduction (10% or
greater) of the Participant’s Base Salary or bonus potential other than a reduction applicable to
all or substantially all of the employees of the Company and its direct and indirect Subsidiaries
taken as a whole; or (iv) a material breach by the Company of its obligations to the Participant.
In each case, an occurrence of one of the foregoing shall constitute Good Reason only if it is not
corrected within twenty (20) business days following the receipt by the Plan Administrator of
written notice specifying, in reasonably detail, such occurrence and why the Participant believes
it constitutes Good Reason. A Participant’s mental or physical incapacity following the occurrence
of any event described in clauses (i) through (iv) hereof shall not affect the Participant’s
ability to termination his/her employment for Good Reason. With respect to an event described
above, Good Reason shall not exist until the expiration of the applicable cure period without such
event being cured. For the avoidance of doubt, following any Change of Control under Section
2.5(d), the mere fact that the Company ceases to have any class of equity securities listed, or
required to be listed, on a national securities exchange shall not constitute a significant,
adverse change in a Participant’s duties, authorities or responsibilities for purposes of
determining whether a Good Reason exists for such Participant.



     2.17 Group I Participant means the chief executive officer of the Company. Without
the written consent of the affected Participant, in the event of a Change of Control, a Participant
who otherwise qualifies as a Group I Participant as of the Closing Time cannot thereafter be
removed as a Group I Participant during the Protection Period.



     2.18 Group II Participant means (a) an officer of the Company who reports directly to
the Company’s chief executive officer, or (b) an officer or employee of the Company or its
Subsidiaries who is listed on Schedule 1 attached hereto. Without the written consent of the
affected Participant, in the event of a Change of Control, a Participant who otherwise qualifies as
a Group II Participant as of the Closing Time cannot thereafter be removed as a Group II
Participant during the Protection Period (unless such removal is to designate such Group II
Participant as a Group I Participant).



     2.19 Group III Participant means all other officers of the Company or its Subsidiaries
designated by (a) the Plan Administrator or (b) the Company’s Chief Executive Officer; provided,
that, the Chief Executive Officer may only designate officers who are Vice Presidents or above and
who are required to enter into Non-Competition Agreements (or substantially similar non-competition
agreements) by the Company. The Plan Administrator may delegate authority to designate additional
Group III Participants to any officer of the Company. Without the written consent of the affected
Participant, in the event of a Change of Control, a Participant who otherwise qualifies as a Group
III Participant as of the Closing Time cannot thereafter be removed as a Group III Participant
during the Protection Period (unless such removal is to designate such Group III Participant as a
Group I or Group II Participant).



     2.20 Non-Competition Agreement means an agreement in a form approved by the Plan
Administrator pursuant to which Participant agrees for the benefit of the Company not to be
employed by, or perform services as a contractor for, AT&T, Verizon, T-Mobile, Metro PCS,



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Leap Wireless or any other organization whose primary business is offering wireless mobile
broadband services that compete with the services offered by the Company in the United States as
identified by the Plan Administrator prior to the applicable Termination Date for the following
time periods (or if such period exceeds the maximum permitted under applicable laws, such shorter
period as may be permitted under such applicable laws)(each of such periods, the
“Non-Competition Period”):




          (a) For the Group I Participant:




               (i) eighteen (18) months for Regular Severance Benefits, and



               (ii) two years for Change of Control Benefits;



          (b) For a Group II or III Participant (or in the case of a Group III Participant, such shorter
period as may be set forth in the applicable Participation Agreement):




               (i) one year for Regular Severance Benefits, and



               (ii) eighteen (18) months for Change of Control Benefits.



     2.21 Non-Control Transaction means a Merger in which:



          (a) the stockholders of the Company immediately before such Merger, in either case, own
directly or indirectly, immediately following such Merger, at least fifty percent (50%) of the
combined voting power of the outstanding voting securities of (x) the surviving corporation, if
there is no parent corporation of the surviving corporation or (y) if there is one or more than one
parent corporation, the ultimate parent corporation, unless in either case the Merger results in
any Person (other than the Strategic Investors or any of their Controlled Affiliates) acquiring
Beneficial Ownership of more than fifty percent (50%) of the combined voting power of the Voting
Securities of the surviving corporation or ultimate parent corporation, as applicable; and




          (b) the individuals who were members of the Incumbent Board immediately prior to the execution
of the agreement providing for such Merger constitute at least a majority of the members of the
board of directors of (x) the surviving corporation, if there is no parent corporation of the
surviving corporation, or (y) if there is one or more than one parent, the ultimate parent
corporation.




     2.22 Participant means a Group I, Group II or Group III Participant who is an employee
of the Company or its Subsidiaries prior to date of termination of this Plan.



     2.23 Participation Agreement means an agreement between a Participant and the Company,
substantially in the form attached as APPENDIX A, which provides for the Participant’s
participation in the Plan.



     2.24 Plan means this Clearwire Corporation 2010 Executive Continuity Plan, effective
April 30, 2010, and subsequently amended from time to time.



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     2.25 Plan Administrator means the Compensation Committee or its designee, as the
committee shall determine.



     2.26 Protection Period means the two (2)-year period commencing on the Closing Time.



     2.27 Qualifying Healthcare Coverage means the health care coverage made available to
employees of the Company with substantially similar duties and responsibilities to those of the
Participant, as determined immediately prior to such Participant’s Termination Date.



     2.28 Release means a general waiver, release and agreement substantially in the form
of the Form of Release attached hereto as APPENDIX B or in such other reasonable form as may be
approved by the Plan Administrator.



     2.29 Strategic Investors means Sprint Nextel Corporation, Comcast Corporation, Time
Warner Cable Inc., Bright House Networks LLC, Intel Corporation and Google Inc.



     2.30 Subsidiaries means, with respect to any person, any corporation, partnership,
limited liability company, association or other business entity of which more than 50% of the
combined voting power of the then-outstanding securities entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees thereof (or if no
such vote is applicable, to generally vote in votes of the equityholders thereof) is at the time of
determination owned or controlled, directly or indirectly, by such Person or one or more other
Subsidiaries of such Person. For the avoidance of doubt, Clearwire Communications LLC and its
direct and indirect Subsidiaries shall be deemed Subsidiaries of the Company.



     2.31 Successor means the entity that is the survivor upon a Change in Control or
otherwise becomes bound to the obligations of the Company by operation of law.



     2.32 Target Annual Compensation means the sum of (i) the Participant’s Base Salary and
(ii) the Participant’s target annual bonus in effect on the Participant’s Termination Date, in each
case determined without giving effect to any reductions, effected without the Participant’s
consent, implemented during the Protection Period.



     2.33 Termination Date means the date on which the Participant’s employment with the
Company and its Subsidiaries ceases.



     2.34 Transaction Agreement means a definitive written agreement that commits the
signatories to a Change in Control involving the Company, pursuant to which the Change in Control
contemplated in the Transaction Agreement actually occurs (including such agreements that contain
conditions precedent to closing, but not including non-binding letters of intent or other similar
non-binding expressions of interest).



Article 3. Eligibility for Executive Continuity Benefits




     Only those Participants who enter into a Participation Agreement shall become Participants in
this Plan. The Participation Agreement must be executed by an authorized signatory of the Company
and duly delivered to and executed by the Participant prior to the



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Company entering into the Transaction Agreement relating to the Change in Control or on such
later date as is approved by the Plan Administrator. A Participant in this Plan may become entitled
to Executive Continuity Benefits hereunder only in accordance with the terms of this Plan.




Article 4. Regular Severance Benefit




     If the Participant’s employment is terminated after the Effective Date at any time other than
during the Protection Period by the Company for a reason other than Cause or death or Disability,
the Participant shall be entitled to the following (the “Regular Severance Benefit”):



     (i) a cash benefit equal to the product of (A) the Participant’s Target Annual Compensation
and (B) 150% in the case of a Group I Participant, and 100% in the case of a Group II or Group III
Participant (or in the case of a Group III Participant, such lesser amount as may be set forth in
the applicable Participation Agreement);



     (ii) continuation of Qualifying Healthcare Coverage, at no increased cost to the Participant,
for twenty-four (24) months in the case of a Group I Participant, and twelve (12) months in the
case of a Group II or Group III Participant (or in the case of a Group III Participant, such
shorter period as may be set forth in the applicable Participation Agreement); and



     (iii) all unvested Equity Awards that would otherwise vest within twelve (12) months of the
Participant’s Termination Date for a Participant (or in the case of a Group III Participant, such
shorter period as may be set forth in the applicable Participation Agreement) shall vest.



Article 5. Change in Control Benefits




     If the Participant’s employment is terminated during a Protection Period (i) by the Company
for a reason other than Cause or death or Disability, (ii) by the Participant for Good Reason, or
(iii) in an Anticipatory Termination, the Participant shall be entitled to the following (the
“CIC Severance Benefit”):



     (i) a cash benefit equal to the product of (A) Participant’s Target Annual Compensation and
(B) 200% in the case of a Group I Participant, and 150% in the case of a Group II or Group III
Participant (or, in the case of a Group III Participant, such lesser amount as may be set forth in
the applicable Participation Agreement);



     (ii) continuation of Qualifying Healthcare Coverage, at no increased cost to the Participant,
for twenty-four (24) months in the case of a Group I Participant, and twelve (12) months in the
case of a Group II or Group III Participant (or in the case of a Group III Participant, such
shorter period as may be set forth in the applicable Participation Agreement); and



     (iii) all unvested Equity Awards held by a Participant shall become fully vested and, subject
to the Company’s ability to cash out outstanding Equity Awards, all options, stock appreciation
rights or other similar awards shall be exercisable until the earlier of the first



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anniversary of the Participant’s Termination Date and the expiration of the maximum original
term of such award.




Article 6. Conditions and Limitations on Payment of Benefits




     6.1 Release and Non-Competition Agreement. No Participant shall be entitled to receive
Executive Continuity Benefits under Articles 4 or 5 hereof unless such Participant (or if the
Participant is disabled or deceased its estate, guardian or representative) executes, and delivers
to the Company (a) a Release, and such Release becomes effective, within sixty (60) days following
the Participant’s Termination Date, and (b) to the extent permitted by applicable law in the state
in which the Participant resides on the Termination Date, a Non-Competition Agreement.



     6.2 Payment of Cash Benefits. The cash portion of any Executive Continuity Benefits
shall be paid in equal bi-weekly installments over the Non-Competition Period applicable to the
affected Participant. The Company’s obligation to pay each installment is conditioned upon the
affected Participant’s compliance, after giving effect to any applicable cure periods, with the
terms of the Participant’s Non-Competition Agreement through the date such installment is payable
hereunder.



     For example, if, after giving effect to Article 7, a Group II Participant is to receive
$300,000 in cash as part of the Regular Severance Benefits, the cash portion would be payable over
the one year Non-Competition Period applicable to the Group II Participant in 26 equal installments
of $11,538.46 each, subject to applicable tax withholding under Section 9.2. Each payment would be
subject to the Group II Participant’s compliance with his or her obligations under the
Non-Competition Agreement as of the date of such payment, after giving effect to any applicable
cure periods.



     6.3 Third Party Escrow. Following a Change of Control, if a Participant sells any
shares received upon vesting of any Equity Awards under clause (iii) of Article 5, or shares
acquired upon exercise of any Equity Awards consisting of stock options or similar purchase rights
that vest under clause (iii) of Article 5, Participant agrees to deposit 50% of the net proceeds
from such sale (determined after deducting an amount equal to any taxes payable by the Participant
as a result of such sale) into an escrow with a independent escrow agent designated by the Plan
Administrator. The deposited net proceeds shall be held in escrow under the terms of an Escrow
Agreement to be entered into among the Participant, the Company and the escrow agent until the
expiration of the applicable Non-Competition Period and shall earn interest at the then prevailing
LIBOR rate. The Escrow Agreement shall provide that, if, after giving effect to any applicable
cure periods, the affected Participant has complied with the terms of the Participant’s
Non-Competition Agreement as of the expiration date of the Non-Competition Period, the deposited
net proceeds, together with any accrued interest shall be promptly delivered to the Participant by
the escrow agent. The Escrow Agreement shall further provide that, if, after giving effect to any
applicable cure periods, the affected Participant has not complied with the terms of Participant’s
Non-Competition Agreement as of such date, the net proceeds shall be forfeited to the Company. The
Escrow Agreement shall be in a form that is reasonably acceptable to the Plan Administrator.



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     6.4 Other Benefits. The Company may maintain other severance plans or may have entered
into or enter into in the future other agreements with certain employees which contain severance
provisions or other rights (collectively “Other Severance Arrangements”). The Executive
Continuity Benefits pursuant to Articles 4 and 5 hereof shall be reduced by any cash severance
payments otherwise required to be provided to the Participant in connection with Participant’s
termination of employment pursuant to such Other Severance Arrangements.



     6.5 No Benefits on Other Termination. If (a) the Participant voluntarily terminates
employment with the Company (other than for Good Reason during the Protection Period), (b) the
Company terminates the Participant’s employment for Cause, or (c) the Participant’s employment
terminates by reason of his/her death or Disability, then the Participant shall not be entitled to
receive Executive Continuity Benefits under Article 4 or Article 5 of the Plan.



Article 7. Tax Cap/Golden Parachute




     7.1 To the extent that any amount payable to a Participant hereunder, as well as any other
“parachute payment,” as such term is defined under Section 280G of the Code, payable to the
Participant in connection with the Participant’s employment by the Company or any of its
affiliates, exceed the limitations of Section 280G of the Code such that an excise tax will be
imposed under Section 4999 of the Code, the Participant’s Executive Continuity Benefits under
Article 4 or Article 5 of the Plan shall be either (a) delivered in full or (b) delivered to such
lesser extent as would result in no portion of such benefits being subject to the excise tax under
Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable,
federal, state and local income taxes and excise tax under Section 4999 of the Code, results in the
receipt by the Participant on an after-tax basis, of the greater net value, notwithstanding that
all or some portion of such benefits may be taxable under Section 4999 of the Code. To the extent
practicable, the Participant may elect which of the Executive Continuity Benefits, if any, gets
reduced under this Section 7.1.



     7.2 The determination of whether any payments and/or benefits to a Participant constitute a
“parachute payment” within the meaning of Section 280G of the Code and, if so, the amount to be
delivered to the Participant pursuant to this Article 7 of the Plan shall be made by an independent
auditor (the “Auditor”) selected by the Participant and the Company. The Auditor shall be
a nationally recognized United States public accounting firm. If the Participant and the Company
cannot agree on the firm to serve as the Auditor, then the Participant and the Company shall each
designate one (1) accounting firm and those two firms shall jointly select the accounting firm to
serve as the Auditor. All fees and expenses of the Auditor shall be borne solely by the Company.
Any determination by the Auditor shall be binding upon the Company and the Participant.



Article 8. Funding Policy and Method




     Benefits and any administrative expenses arising in connection with this Plan shall be paid as
needed solely from the general assets of the Company. No contributions are required from any
Participant. This Plan shall not be construed to require the Company to fund any of the benefits
provided hereunder nor to establish a trust for such purpose. Participants’ rights against



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the Company with respect to severance and other benefits provided under this Plan shall be
those of general unsecured creditors.




Article 9. Employment Status; Withholding




     9.1 Employment Status. This Plan and the Participation Agreement do not constitute a
contract of employment or impose on the Company any obligation to retain the Participant as an
employee, to change the status of the Participant’s employment, or to change the Company’s policies
regarding termination of employment. Unless the Participant has a written and duly executed
employment agreement with the Company that indicates otherwise, the Participant’s employment is and
shall continue to be “at-will,” as defined under applicable law.



     9.2 Withholding Taxes. Payments hereunder are subject to all applicable taxes and
withholding.



Article 10. Successors to Company




     As part of any Change in Control, the Successor shall be obligated and, as a condition of
closing, caused to assume the obligations under this Plan and to perform the obligations hereunder
which assumption shall be evidenced by an agreement in writing. All references to the “Company”
shall include the Successor, as applicable.



Article 11. Modification or Termination of the Plan




     11.1 The Board may amend, modify or terminate this Plan at any time. On or before the second
anniversary of the Effective Date, no amendment, modification or termination of this Plan shall
adversely affect, in any way, the rights or Executive Continuity Benefits of any employee who has
become a Participant under the Plan unless the Participant receives substantially similar rights
and benefits under another plan or agreement adopted by the Company or this Plan has terminated as
to the Participant under Section 11.2 below. After the second anniversary of the Effective Date,
the Plan may be amended, modified or terminated in any manner upon one year’s prior written notice
to each Participant whose rights or Executive Continuity Benefits may be adversely affected thereby
and for whom this Plan has not then terminated.



     11.2 As to any Participant, the Plan should terminate on the earlier of: (i) the Participant’s
death or disability or termination of employment for Cause; and (ii) the date any obligations of
the Company under this Plan to Participant have been fully paid and distributed.



Article 12. Administration of Plan




     12.1 Administrative Procedures. The Plan Administrator, in accordance with the terms
and intent of the Plan, shall administer the Plan and shall have full discretionary authority to
interpret, construe and apply the provisions of the Plan and to make determinations as to the
Participant’s rights to participate in the Plan, and the timing and amount of Executive Continuity
Benefits, if any, owed to the Participant (or, in the case of the Participant’s death, his/her
beneficiary or estate). The Plan Administrator, in accordance with the terms and intent of the



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Plan, shall further adopt such rules and regulations, as it may deem necessary or advisable
for the administration of the Plan.




     12.2 Benefit Determinations. All claims for Executive Continuity Benefits by the
Participant must be made by notice in writing to the Plan Administrator (the “Claims
Notice”) within forty-five (45) days following the Termination Date. If the Plan Administrator
denies any Participant’s claim for Executive Continuity Benefits, the Plan Administrator shall
notify such Participant of such denial by written notice (the “Benefit Determination
Notice”) within forty-five (45) days following receipt of the Claims Notice, which shall set
forth (i) the specific reason(s) for such denial, (ii) the Plan provisions that are the basis for
the denial, (iii) an explanation of what other material or information is needed, if any, and why
it is needed and (iv) an explanation of the claims review process. The Participant shall be
afforded a reasonable opportunity for a full and fair review by the Plan Administrator of the
decision to deny his/her claim for Executive Continuity Benefits.



     12.3 Appeal. If the Plan Administrator determines that the Participant is not
eligible for Executive Continuity Benefits, or if the Participant believes that he/she is entitled
to greater or different benefits, the Participant shall have the opportunity to have such claim
reviewed by the Plan Administrator by filing a petition for review with the Plan Administrator (the
“Review Petition”) within sixty (60) days after receipt of the Benefit Determination
Notice. Participant’s petition shall state the specific reasons that the Participant believes
entitle him/her to Executive Continuity Benefits or to greater or different Executive Continuity
Benefits. The Plan Administrator shall promptly, but not later than forty-five (45) days after
receipt of the Review Petition, notify the Participant in writing of its decision on appeal (the
“Appeal Determination”), which shall specifically state the basis of the Plan
Administrator’s decision and the specific provision(s) of the Plan on which the decision is based.
The Plan Administrator’s decision on appeal shall be a final administrative determination on the
claim.



     12.4 Governing Law. Except to the extent preempted by Federal law, all rights under
the Plan shall be governed by and construed in accordance with the laws of the state of Delaware
without regard to principles of conflicts of law. Each party hereto expressly waives the right to
a trial by jury in any lawsuit or proceeding relating to or arising in any way from this Plan or
the matters contemplated hereby. No action shall be brought by or on behalf of any Participant for
or with respect to benefits due under this Plan unless the person bringing such action has
exhausted the claims review process described in this Article 13.



     12.5 Attorneys’ Fees and Costs. In the event that a dispute regarding benefits arises
between the Company or Plan Administrator and the Participant or, in the case of the Participant’s
death, his or her beneficiary or estate, and such dispute is resolved through litigation in court,
the court shall have the right to direct that all or a portion of the prevailing party’s reasonable
attorneys’ fees and costs incurred in such action be paid by the other party.



Article 13. Miscellaneous Provisions




     13.1 Severability. The invalidity or unenforceability of any provision or provisions
of this Plan shall not affect the validity or enforceability of any other provision hereof, which
shall remain in full force and effect.



11









 





     13.2 No Assignment of Benefits. The rights of any person to payments or benefits under
this Plan shall not be made subject to option or assignment, either by voluntary or involuntary
assignment or by operation of law (except as set forth in Article 11), including (without
limitation) bankruptcy, garnishment, attachment or other creditor’s process, and any action in
violation of this Section 13.2 shall be void.



     13.3 Payment to Estate, Guardian or Fiduciary. The Executive Continuity Benefits
payable to a Participant pursuant to this Plan, if the Participant subsequently dies or suffers a
Disability before payment is completed shall be payable to the Participant’s estate or to his or
her guardian or other fiduciary, respectively. If the Participant’s death or Disability occurs
after he or she is or becomes entitled to any benefits hereunder then the Participant’s estate,
guardian or fiduciary shall have the right to accept and obtain all of the Participants rights
hereunder.



     13.4 Participant’s Cooperation. The Participant shall cooperate with the Company by
furnishing any and all information requested by the Plan Administrator in order to facilitate the
payment of benefits hereunder and taking such other actions as may be requested by the Plan
Administrator.



     13.5 Confidentiality. Participant shall keep the terms of the Plan and the
Participation Agreement confidential and shall not disclose or characterize any of the terms to
anyone (except as may be required by law) other than to members of his or her immediate family, his
or her attorney, and persons assisting him or her in financial planning or income tax preparation,
provided that Participant shall require these people to keep such information confidential.



     13.6 Non-ERISA Plan. The Plan is intended to be a welfare plan subject to ERISA
pursuant to 29 CFR 2510.3-2(b)(1). In the event that this Plan is considered to be an employee
pension plan under ERISA, it is intended to be an unfunded program maintained primarily to provide
deferred compensation benefits for “a select group of management or highly compensated employees”
within the meaning of Sections 201, 301 and 401 of ERISA and therefore to be exempt from Parts 2,
3, and 4 of Title I of ERISA.



     13.7 Captions. The captions of the sections and subsections of the Plan are for
convenience only and shall not control or affect the meaning or construction of any of its
provisions.



     13.8 Section 409A of the Code. To the extent applicable, it is intended that this Plan
comply with the provisions of Section 409A of the Code. This Plan shall be administered in a manner
consistent with this intent, and any provision that would cause the Plan to fail to satisfy Section
409A of the Code shall have no force and effect until amended to comply with Section 409A of the
Code (which amendment may be retroactive to the extent permitted by Section 409A of the Code and
may be made by the Company without the consent of any Participant). A termination of employment
shall not be deemed to have occurred for purposes of any provision of this Plan providing for the
payment of any amounts or benefits upon or following a termination of employment unless such
termination is also a “separation from service” within the meaning of Code Section 409A and, for
purposes of any such provision of this Plan, references to a “termination,” “termination of
employment” or like terms shall mean “separation from service.” Notwithstanding anything to the
contrary in this Plan, if a Participant is deemed on the



12









 




date of termination to be a “specified employee” within the meaning of that term under Code
Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is
considered deferred compensation under Code Section 409A payable on account of a “separation from
service,” such payment or benefit shall not be made or provided until the date which is the earlier
of (A) the expiration of the six (6)-month period measured from the date of such “separation from
service” of the Participant, and (B) the date of the Participant’s death, to the extent required
under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and
benefits delayed pursuant to this Section 13.8 (whether they would have otherwise been payable in a
single sum or in installments in the absence of such delay) shall be paid or reimbursed to the
Participant in a lump sum and any remaining payments and benefits due under this Plan shall be paid
or provided in accordance with the normal payment dates specified for them herein.









13









 








     IN WITNESS WHEREOF, the Company has caused this Plan to be signed by its duly authorized
officer on the 30th day of April, 2010.





	 	 	 	 	 	 	 

	 	 	CLEARWIRE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ William T. Morrow	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	Chief Executive Officer	 	 
	 

	 	 	 	 

	 	 



















 





APPENDIX
A


CLEARWIRE CORPORATION

PARTICIPATION AGREEMENT




     Clearwire Corporation (“Company”) and                                          (“Participant”) hereby
enter into this Participation Agreement. The Company and Participant agree to the terms and
conditions of the Company’s 2010 Executive Continuity Plan (the “Plan”), as amended, a copy
of which is attached hereto and incorporated herein. Participant acknowledges and agrees that upon
execution of this Agreement, he/she will be deemed to waive his/her participation in, and any
payment or benefits that he/she is now or may in the future become eligible for, pursuant to the
Clearwire Corporation Change in Control Severance Plan (the “CIC Severance Plan”), as well
as any severance protections, payments and/or benefits pursuant to any other agreement by and
between the Company and Participant; provided, that, for so long as the Participant is entitled to
receive benefits under the CIC Severance Plan as a result of the transactions under that
Transaction Agreement and Plan of Merger, dated May 7, 2008, subject to Section 6.2 of the Plan,
he/she shall remain entitled to receive benefits under the CIC Severance Plan to the extent that
such benefits exceed the benefits that he/she would be entitled under the Plan.



	 	 	 	 	 	 	 

	 

	 	PARTICIPANT	 	 	 	 
	 
	 	 	 	 	 	 
	Date:                                         

	 	Signature:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Print Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	CLEARWIRE CORPORATION	 	 
	 
	 	 	 	 	 	 
	Date:                                         

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






 









 






APPENDIX B




FORM OF RELEASE



     In consideration of the payments due to Participant under the Clearwire Corporation 2010
Executive Continuity Plan (the “Plan”), and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Participant, intending to be legally bound, does hereby, on behalf of himself/herself and
his/her agents, representatives, attorneys, assigns, heirs, executors and administrators
(collectively, the “Participant Parties”) REMISE, RELEASE AND FOREVER DISCHARGE the
Company, its affiliates, subsidiaries, parents, joint ventures, and its and their officers,
directors, shareholders, members, and managers, and its and their respective successors and
assigns, heirs, executors, and administrators (collectively, the “Company Parties”) from
all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which
Participant or any of the Participant Parties ever had, now has, or hereafter may have, by reason
of any matter, cause or thing whatsoever, from the beginning of Participant’s initial dealings with
the Company to the date of this Release, and particularly, but without limitation of the foregoing
general terms, any claims arising from or relating in any way to Participant’s employment
relationship with Company, the terms and conditions of that employment relationship, and the
termination of that employment relationship, including, but not limited to, any claims arising
under the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621 et seq.
(“ADEA”), Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
the Civil Rights Act of 1966, 42 U.S.C. §1981, the Civil Rights Act of 1991, Pub. L. No. 102-166,
the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., the Age Discrimination in Employment
Act, as amended, 29 U.S.C. §621 et seq., the Fair Labor Standards Act, 29 U.S.C. §201 et seq., the
National Labor Relations Act, 29 U.S.C. §151 et seq., and any other claims under any federal, state
or local common law, statutory, or regulatory provision, now or hereafter recognized, but not
including such claims to payments and other rights provided Participant under the Plan. This
Release is effective without regard to the legal nature of the claims raised and without regard to
whether any such claims are based upon tort, equity, implied or express contract or discrimination
of any sort. Except as specifically provided herein, it is expressly understood and agreed that
this Release shall operate as a clear and unequivocal waiver by Participant of any claim for
accrued or unpaid wages, benefits or any other type of payment. Notwithstanding the foregoing,
Participant shall not be deemed to have released any claims for indemnity or contribution or claims
for or in respect of (i) payment obligations arising under the Plan, (ii) vested benefits under any
Company employee benefit plan, or (iii) coverage under any Directors and Officers insurance
policies maintained by the Company or its subsidiaries, in each case, in respect of claims asserted
against Participant in his/her capacity as an employee or officer of the Company.



     2. Participant expressly waives all rights afforded by any statute which limits the effect of
a release with respect to unknown claims. Participant understands the significance of his/her
release of unknown claims and his/her waiver of statutory protection against a release of unknown
claims.



 









 





     3. Participant agrees that he/she will not be entitled to or accept any benefit from any claim
or proceeding within the scope of this Release that is filed or instigated by him or on his/her
behalf with any agency, court or other government entity.



     4. Participant further agrees and recognizes that he/she has permanently and irrevocably
severed his/her employment relationship with the Company, effective as of the date hereof, that
he/she shall not seek employment with the Company or any affiliated entity at any time in the
future, and that the Company has no obligation to employ him in the future.



     5. The parties agree and acknowledge that the settlement and termination of any asserted or
unasserted claims against the Company and the Company Parties pursuant to this Release, are not and
shall not be construed to be an admission of any violation of any federal, state or local statute
or regulation, or of any duty owed by the Company or any of the Company Parties to Participant.



     6. Participant certifies and acknowledges as follows:




          (a) That he/she has read the terms of this Release, and that he/she understands its terms
and effects, including the fact that he/she has agreed to RELEASE AND FOREVER DISCHARGE the
Company and all Company Parties from any legal action or other liability of any type related in
any way to the matters released pursuant to this Release other than as provided in the Plan and
in this Release.




          (b) That he/she understands the significance of his/her release of unknown claims and
his/her waiver of statutory protection against a release of unknown claims. Accordingly,
Participant expressly waives any and all rights and benefits under Section 1542 of the
California Civil Code, which states:




A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN his/her FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED his/her SETTLEMENT WITH
THE DEBTOR.




          (c) That he/she is waiving all rights to sue or obtain equitable, remedial or punitive
relief from any or all Company Parties of any kind whatsoever, including, without limitation,
reinstatement, back pay, front pay, attorneys’ fees and any form of injunctive relief.
Notwithstanding the above, he/she further acknowledges that he/she is not waiving and is not
being required to waive any right that cannot be waived under law, including the right to file
an administrative charge or to participate in an administrative investigation or proceeding;
provided, however, that he/she disclaims and waives any right to share or participate in any
monetary award resulting from the prosecution of such charge or investigation or proceeding.




          (d) That he/she has signed this Release voluntarily and knowingly in exchange for the
consideration described herein, which he/she acknowledges is adequate and satisfactory to him
and which he/she acknowledges is in addition to any other benefits to which he/she is otherwise
entitled.



 









 






          (e) That he/she has been and is hereby advised in writing to consult with an attorney prior
to signing this Release.




          (f) That he/she does not waive rights or claims that may arise after the date this Release
is executed or those claims arising under the Plan with respect to payments and other rights due
Participant on the date of, or during the period following, the termination of his/her
employment.




          (g) That the Company has provided him with adequate opportunity, including a period of
twenty-one (21) days from the initial receipt of this Release and all other time periods
required by applicable law, within which to consider this Release (it being understood by
Participant that Participant may execute this Release less than 21 days from its receipt from
the Company, but agrees that such execution will represent his/her knowing waiver of such 21-day
consideration period), and he/she has been advised by the Company to consult with counsel in
respect thereof.




          (h) That he/she has seven (7) calendar days after signing this Release within which to
rescind, in a writing delivered to the Company, the portion of this Release related to claims
arising under ADEA or any other claim arising under any other federal, state or local that
requires extension of this revocation right as a condition to the valid release and waiver of
such claim.




          (i) That at no time prior to or contemporaneous with his/her execution of this Release has
he/she filed or caused or knowingly permitted the filing or maintenance, in any state, federal
or foreign court, or before any local, state, federal or foreign administrative agency or other
tribunal, any charge, claim or action of any kind, nature and character whatsoever
(“Claim”), known or unknown, suspected or unsuspected, which he/she may now have or has
ever had against the Company Parties which is based in whole or in part on any matter referred
to in Section 1 above; and, subject to the Company’s performance under this Release, to the
maximum extent permitted by law, Participant is prohibited from filing or maintaining, or
causing or knowingly permitting the filing or maintaining, of any such Claim in any such forum.
Participant hereby grants the Company his/her perpetual and irrevocable power of attorney with
full right, power and authority to take all actions necessary to dismiss or discharge any such
Claim. Participant further covenants and agrees that he/she will not encourage any person or
entity, including but not limited to any current or former employee, officer, director or
stockholder of the Company, to institute any Claim against the Company Parties or any of them,
and that except as expressly permitted by law or administrative policy or as required by legally
enforceable order he/she will not aid or assist any such person or entity in prosecuting such
Claim.



      7. Miscellaneous




          (a) This Release and the Plan, and any other documents expressly referenced therein,
constitute the complete and entire agreement and understanding of Participant and the Company
with respect to the subject matter hereof, and supersedes in its entirety any and all prior
understandings, commitments, obligations and/or agreements, whether written or oral, with
respect thereto; it being understood and agreed that this Release and including the mutual
covenants, agreements, acknowledgments and affirmations contained herein, is



 









 







intended to constitute a complete settlement and resolution of all matters set forth in
Section 1 hereof.




          (b) The Company Parties are intended third-party beneficiaries of this Release, and this
Release may be enforced by each of them in accordance with the terms hereof in respect of the
rights granted to such Company Parties hereunder. Except and to the extent set forth in the
preceding two sentences, this Release is not intended for the benefit of any Person other than
the parties hereto, and no such other person or entity shall be deemed to be a third party
beneficiary hereof. Without limiting the generality of the foregoing, it is not the intention
of the Company to establish any policy, procedure, course of dealing or plan of general
application for the benefit of or otherwise in respect of any other employee, officer, director
or stockholder, irrespective of any similarity between any contract, agreement, commitment or
understanding between the Company and such other employee, officer, director or stockholder, on
the one hand, and any contract, agreement, commitment or understanding between the Company and
Participant, on the other hand, and irrespective of any similarity in facts or circumstances
involving such other employee, officer, director or stockholder, on the one hand, and
Participant, on the other hand.




          (c) The invalidity or unenforceability of any provision of this Release shall not affect
the validity or enforceability of any other provision of this Release, which shall otherwise
remain in full force and effect.




          (d) This Release may be executed in separate counterparts, each of which shall be deemed to
be an original and all of which taken together shall constitute one and the same agreement.




          (e) The obligations of each of the Company and Participant hereunder shall be binding upon
their respective successors and assigns. The rights of each of the Company and Participant and
the rights of the Company Parties shall inure to the benefit of, and be enforceable by, any of
the Company’s, Participant’s and the Company Parties’ respective successors and assigns. The
Company may assign all rights and obligations of this Release to any successor in interest to
the assets of the Company.




          (f) No amendment to or waiver of this Release or any of its terms shall be binding upon any
party hereto unless consented to in writing by such party.




          (g) ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.



*     *     *     *     *






 









 








          Intending to be legally bound hereby, Participant and the Company have executed this Release
as of the date first written above.




	 	 	 	 	 
	 	[NAME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



READ CAREFULLY BEFORE SIGNING



I have read this Release and have been given adequate opportunity, including 21 days from my
initial receipt of this Release, to review this Release and to consult legal counsel prior to my
signing of this Release. I understand that by executing this Release I will relinquish certain
rights or demands I may have against the Company Parties or any of them.




	 	 	 	 	 
	 	 	 
	 	 	 
	 	[Name] 	 
	 	 	 
	 



Witness: