INDEMNIFICATION AGREEMENT
Exhibit 10.55
This Indemnification Agreement, dated as of , 2007 (this “Agreement”), is
made by and between Sprint Nextel Corporation, a Kansas corporation (the “Company”), and
(“Indemnitee”).
RECITALS:
A. Section 17-6301(a) of the Kansas General Corporation Code (the “KGCC”) provides that the
business and affairs of a corporation shall be managed by or under the direction of its board of
directors.
B. Significant authority with respect to the management of the Company has been delegated to
the officers of the Company in accordance with Section 17-6301 and Section 17-6302 of the KGCC.
C. By virtue of the managerial prerogatives vested in the directors and officers of a Kansas
corporation, directors and officers act as fiduciaries of the corporation and its stockholders.
D. Thus, it is critically important to the Company and its stockholders that the Company be
able to attract and retain the most capable individuals reasonably available to serve as directors
and officers of the Company.
E. In recognition of the need for corporations to be able to induce capable and responsible
individuals to accept positions in corporate management, Kansas law authorizes (and in some
instances requires) a corporation to indemnify its directors and officers in certain circumstances,
and further authorizes a corporation to purchase and maintain insurance for the benefit of its
directors and officers.
F. Under Kansas law, (i) expenses incurred by a director or officer in defending a criminal
action (whether such claims are asserted under state or federal law) may be paid by a corporation
in advance of the final disposition of such action upon receipt of the undertaking contemplated by
Section 6305(e) of the KGCC, (ii) such advancement does not depend upon the merits of the claims
asserted against the director or officer and is separate and distinct from any right to
indemnification the director or officer may be able to establish, and (iii) indemnification of the
director or officer against criminal fines and other costs is permitted if the director or officer
satisfies the applicable standard of conduct.
G. The Company’s Amended and Restated Bylaws (the “Bylaws”) require the Company to indemnify
its directors and officers in certain circumstances.
H. Indemnification by a corporation serves the dual policies of (1) allowing corporate
officials to resist unjustified lawsuits, secure in the knowledge that, if vindicated, the
corporation will bear the expense of litigation, and (2) encouraging capable individuals to serve
as corporate directors and officers, secure in the knowledge that the corporation will absorb the
costs of defending their honesty and integrity.
I. The number of lawsuits challenging the judgment and actions of directors and officers of
public companies, the costs of defending those lawsuits, and the threat to directors’ and officers’
personal assets have all materially increased over the past several years, chilling the willingness
of capable individuals to undertake the responsibilities imposed on corporate directors and
officers.
J. Federal legislation and rules adopted by the Securities and Exchange Commission and the
national securities exchanges have imposed additional disclosure and corporate governance
obligations on directors and officers of public companies and have exposed them to new and
substantially broadened civil liabilities and to a significantly greater risk of criminal
proceedings, with attendant defense costs and potential criminal fines and penalties.
K. Indemnitee is a director and/or officer of the Company and Indemnitee’s willingness to
serve in such capacity is predicated, in substantial part, upon the Company’s willingness to
indemnify Indemnitee in accordance with the principles reflected above, to the fullest extent
permitted by the laws of the State of Kansas, and upon the other undertakings set forth in this
Agreement.
L. Therefore, in recognition of the need to provide Indemnitee with substantial protection
against personal liability, in order to procure Indemnitee’s continued service as a director and/or
officer of the Company and to enhance Indemnitee’s ability to serve the Company in an effective
manner, and in order to provide such protection pursuant to express contract rights (which are
intended to be in addition to any similar rights provided under the Company’s Amended and Restated
Articles of Incorporation or Bylaws (collectively, the “Constituent Documents”) and enforceable
irrespective of, among other things, any amendment to the Constituent Documents, any change in the
composition of the Company’s Board of Directors (the “Board”) or any change-in-control or other
business combination transaction relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of and the advancement of Expenses (as defined in Section
1(e)) to Indemnitee as set forth in this Agreement and for the continued coverage of Indemnitee
under the Company’s directors’ and officers’ liability insurance policies.
M. In light of the considerations referred to in the preceding recitals, it is the Company’s
intention and desire that the provisions of this Agreement be construed liberally, subject to their
express terms, to maximize the protections to be provided to Indemnitee hereunder.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein, the following terms
have the following meanings when used in this Agreement with initial capital letters:
(a) “Change in Control” means any of the following events that occur after the date of this
Agreement:
(i) any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a “Person”) becomes the beneficial owner
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(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of the
combined voting power of the then-outstanding Voting Stock of the Company; except, that:
(A) for purposes of this Agreement, the following acquisitions are not a Change in Control:
(1) any acquisition of Voting Stock of the Company directly from the Company that is approved by a
majority of the Continuing Directors, (2) any acquisition of Voting Stock of the Company by the
Company or any Subsidiary, (3) any acquisition of Voting Stock of the Company by the trustee or
other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Subsidiary, and (4) any acquisition of Voting Stock of the Company
by any Person pursuant to a Business Combination that complies with clauses (A), (B) and (C) of
Section 1(a)(ii);
(B) if any Person becomes the beneficial owner of 30% or more of combined voting power of the
then-outstanding Voting Stock of the Company as a result of a transaction or series of transactions
described in clause (A)(1) of Section 1(a)(i) above and such Person subsequently becomes the
beneficial owner of any additional shares of Voting Stock of the Company representing 1% or more of
the then-outstanding Voting Stock of the Company, other than as a result of (x) a transaction
described in clause (A)(1) of Section 1(a)(i) above, or (y) a stock dividend, stock split or
similar transaction effected by the Company in which all holders of Voting Stock are treated
equally then such subsequent acquisition shall be a Change in Control;
(C) a Change in Control will not have occurred if a Person becomes the beneficial owner of 30%
or more of the Voting Stock of the Company as a result of a reduction in the number of shares of
Voting Stock of the Company outstanding pursuant to a transaction or series of transactions that is
approved by a majority of the Continuing Directors unless and until such Person subsequently
becomes the beneficial owner of additional shares of Voting Stock of the Company representing 1% or
more of the then-outstanding Voting Stock of the Company, other than as a result of a subsequent
stock dividend, stock split or similar transaction effected by the Company in which all holders of
Voting Stock are treated equally; and
(D) if at least a majority of the Continuing Directors determine in good faith that a Person
has acquired beneficial ownership of 30% or more of the Voting Stock of the Company inadvertently,
and such Person divests as promptly as practicable, but no later than the date, if any, set by the
Continuing Directors a sufficient number of shares so that such Person beneficially owns less than
30% of the Voting Stock of the Company, then no Change in Control shall have occurred as a result
of such Person’s acquisition; or
(ii) the consummation of a reorganization, merger or consolidation of the Company with, or the
acquisition of the stock or assets of the Company, by another Person, or similar transaction (each,
a “Business Combination”), unless, in each case, immediately following such Business Combination
(A) the Voting Stock of the Company outstanding immediately prior to such Business
Combination continues to represent (either by remaining outstanding or by being converted into
Voting Stock of the surviving entity or any parent thereof), more than 50% of the combined voting
power of the then outstanding shares of Voting Stock of the entity resulting from such Business
Combination (including, without limitation, an entity which as a
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result of such transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries),
(B) no Person (other than the Company, such entity resulting from such Business Combination,
or any employee benefit plan (or related trust) sponsored or maintained by the Company or any
Subsidiary or such entity resulting from such Business Combination) beneficially owns, directly or
indirectly, 30% or more of the combined voting power of the then outstanding shares of Voting Stock
of the entity resulting from such Business Combination, and
(C) at least a majority of the members of the board of directors of the entity resulting from
such Business Combination were Continuing Directors at the time of the execution of the initial
agreement or of the action of the Board providing for such Business Combination; or
(iii) during any consecutive 18-month period, more than 30% of the Board ceases to be
comprised of Continuing Directors; or
(iv) approval by the stockholders of the Company of a sale of all or substantially all of
Company’s assets or a complete liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of Section 1(a)(ii).
(v) For purposes of this Section 1(a) and as used elsewhere in this Agreement, the
following terms shall have the following meanings:
(A) “Continuing Directors” means the individuals who, as of the date hereof, are directors of
the Company and any individual becoming a director subsequent to the date hereof whose election,
nomination for election by the Company’s stockholders, or appointment, was approved by a vote of at
least two-thirds of the then Continuing Directors (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for director, without
objection to such nomination); except that an individual shall not be a Continuing Director if such
individual’s election or appointment to the Board occurs as a result of an actual or threatened
election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election
or removal of Directors or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board.
(B) “Exchange Act” shall mean the Securities Exchange Act of 1934.
(C) “Subsidiary” means an entity in which the Company directly or indirectly beneficially owns
50% or more of the outstanding Voting Stock.
(D) “Voting Stock” means securities entitled to vote generally in the election of directors
(or similar governing bodies).
(b) “Claim” means (i) any threatened, asserted, pending or completed claim, demand, action,
suit or proceeding, whether civil, criminal, administrative, arbitral, investigative
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or other, and whether made pursuant to federal, state or other law; and (ii) any threatened,
pending or completed inquiry or investigation by any federal, state or other governmental entity,
that Indemnitee determines might lead to the institution of any such claim, demand, action, suit or
proceeding.
(c) “Controlled Affiliate” means any corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or not for profit, that is directly or
indirectly controlled by the Company. For purposes of this definition, “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of an entity or enterprise, whether through the ownership of voting securities, through
other voting rights, by contract or otherwise.
(d) “Disinterested Director” means a director of the Company who is not and was not a party to
the Claim in respect of which indemnification is sought by Indemnitee.
(e) “Expenses” means attorneys’ and experts’ fees and expenses and all other costs and
expenses paid or payable in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to investigate, defend, be a witness in or
participate in (including on appeal), any Claim.
(f) “Indemnifiable Claim” means any Claim based upon, arising out of or resulting from:
(i) any actual, alleged or suspected act or failure to act by Indemnitee in his or her
capacity as a director, officer, employee or agent of the Company or as a director, officer,
employee, member, manager, trustee or agent of any other corporation, limited liability company,
partnership, joint venture, trust or other entity or enterprise, whether or not for profit, as to
which Indemnitee is or was serving at the request of the Company as a director, officer, employee,
member, manager, trustee or agent;
(ii) any actual, alleged or suspected act or failure to act by Indemnitee in any capacity
identified in clause (f)(i) in respect of any business, transaction, communication, filing,
disclosure or other activity of the Company or any other entity or enterprise referred to in clause
(f)(i); or
(iii) Indemnitee’s status as a current or former director, officer, employee or agent of the
Company or as a current or former director, officer, employee, member, manager, trustee or agent of
the Company or any other entity or enterprise referred to in clause (f)(i) or any actual, alleged
or suspected act or failure to act by Indemnitee in connection with any obligation or restriction
imposed upon Indemnitee by reason of such status.
In addition to any service at the actual request of the Company, for purposes of this
Agreement, Indemnitee shall be deemed to be serving or to have served at the request of the Company
as a director, officer, employee, member, manager, trustee or agent of another entity or enterprise
if Indemnitee is or was serving as a director, officer, employee, member, manager, trustee or agent
of such entity or enterprise and (x) such entity or enterprise is or at the time of such service
was a Controlled Affiliate, (y) such entity or enterprise is or at the time of such service was an
employee benefit plan (or related trust) sponsored or maintained by the Company or a Controlled
Affiliate, or (z) the Company or a Controlled Affiliate directly or indirectly
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caused or authorized Indemnitee to be nominated, elected, appointed, designated,
employed, engaged or selected to serve in such capacity.
(g) “Indemnifiable Losses” means any and all Losses relating to, arising out of or resulting
from any Indemnifiable Claim.
(h) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years has been, retained
to represent:
(i) the Company (or any Subsidiary) or Indemnitee in any matter material to either such party
(other than with respect to matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements);
(ii) any other named (or, as to a threatened matter, reasonably likely to be named) party to
the Indemnifiable Claim giving rise to a claim for indemnification hereunder; or
(iii) any holder of 5% or more of the then-outstanding shares of the Voting Stock of the
Company.
“Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(i) “Losses” means any and all Expenses, damages, losses, liabilities, judgments, fines,
penalties (whether civil, criminal or other) and amounts paid in settlement, including all
interest, assessments and other charges paid or payable in connection with or in respect of any of
the foregoing.
2. Indemnification Obligation. Subject to Section 7 and to the next sentence, the
Company shall indemnify, defend and hold harmless Indemnitee, to the fullest extent permitted or
required by the laws of the State of Kansas in effect on the date hereof or as such laws may from
time to time hereafter be amended to increase the scope of such permitted indemnification, against
any and all Indemnifiable Claims and Indemnifiable Losses. Except as provided in Section 4
and Section 20, Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with any Claim by Indemnitee against the Company or against any director or
officer of the Company unless the Company has joined in or consented to the assertion of such
Claim.
3. Advancement of Expenses. Indemnitee shall have the right to advancement by the Company
prior to the final disposition of any Indemnifiable Claim of any and all Expenses relating to,
arising out of or resulting from any Indemnifiable Claim paid or incurred by Indemnitee or which
Indemnitee determines are reasonably likely to be paid or incurred by Indemnitee. Except as
provided in Section 4 and Section 20, Indemnitee shall not be entitled to
advancement of Expenses in connection with any Claim by Indemnitee against the Company or against
any director or officer of the Company unless the Company has joined in or consented to the
assertion of such Claim. Indemnitee’s right to advancement is not subject to the satisfaction of
any standard of conduct. Without limiting the generality or effect of the foregoing, within five
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business days after any request by Indemnitee, the Company shall, in accordance with such
request (but without duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to
Indemnitee funds in an amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such
Expenses. Indemnitee shall repay, without interest, any amounts actually advanced to Indemnitee
that, at the final disposition of the Indemnifiable Claim to which the advance related, were in
excess of amounts paid or payable by Indemnitee in respect of Expenses relating to, arising out of
or resulting from such Indemnifiable Claim. In connection with any such payment, advancement or
reimbursement, Indemnitee shall, at the Company’s request, execute and deliver to the Company an
undertaking, which need not be secured and shall be accepted without reference to Indemnitee’s
ability to repay the Expenses, by or on behalf of Indemnitee, to repay any amounts paid, advanced
or reimbursed by the Company in respect of Expenses relating to, arising out of or resulting from
any Indemnifiable Claim in respect of which it shall have been ultimately determined, following the
final disposition of such Indemnifiable Claim and in accordance with Section 7, that
Indemnitee is not entitled to indemnification hereunder.
4. Indemnification for Additional Expenses. Without limiting the generality or effect of the
foregoing, the Company shall indemnify and hold harmless Indemnitee against and, if requested by
Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of
such request, any and all Expenses paid or incurred by Indemnitee or which Indemnitee determines
are reasonably likely to be paid or incurred by Indemnitee in connection with any Claim made,
instituted or conducted by Indemnitee for (a) indemnification or reimbursement or advance payment
of Expenses by the Company under any provision of this Agreement, or under any other agreement or
provision of the Constituent Documents now or hereafter in effect relating to Indemnifiable Claims,
and/or (b) recovery under any directors’ and officers’ liability insurance policies maintained by
the Company, regardless in each case of whether Indemnitee ultimately is determined to be entitled
to such indemnification, reimbursement, advance or insurance recovery, as the case may be.
Indemnitee shall return, without interest, any such advance of Expenses (or portion thereof) which
remains unspent at the final disposition of the Claim to which the advance related.
5. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Indemnifiable Loss, but not for all of
the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
6. Procedure for Notification. To obtain indemnification under this Agreement in respect of
an Indemnifiable Claim or Indemnifiable Loss, Indemnitee shall submit to the Company a written
request therefor, including a brief description (based upon information then available to
Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at the time of the receipt of
such request, the Company has directors’ and officers’ liability insurance in effect under which
coverage for such Indemnifiable Claim or Indemnifiable Loss is potentially available, the Company
shall give prompt written notice of such Indemnifiable Claim or Indemnifiable Loss to the
applicable insurers in accordance with the procedures set forth in the applicable policies. The
Company shall provide to Indemnitee a copy of such notice delivered to the applicable insurers, and
copies of all subsequent correspondence between the Company and such insurers regarding the
Indemnifiable Claim or Indemnifiable Loss, in each case substantially concurrently with the
delivery or receipt thereof by the Company. The failure by Indemnitee to timely notify the Company
of any Indemnifiable Claim or Indemnifiable Loss
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shall not relieve the Company from any liability hereunder unless, and only to the extent
that, the Company did not otherwise learn of such Indemnifiable Claim or Indemnifiable Loss and
such failure results in forfeiture by the Company of substantial defenses, rights or insurance
coverage.
7. Determination of Right to Indemnification.
(a) If Indemnitee shall have been successful on the merits or otherwise in defense of any
Indemnifiable Claim, including dismissal without prejudice (and with respect to any portion of any
Indemnifiable Claim or in defense of any issue or matter therein, to the extent of such success),
Indemnitee shall be indemnified against all Indemnifiable Losses relating to, arising out of or
resulting from such Indemnifiable Claim in accordance with Section 2 and no Standard of
Conduct Determination (as defined in Section 7(b)) shall be required.
(b) To the extent that the provisions of Section 7(a) are inapplicable to an
Indemnifiable Claim that shall have been finally disposed of, any determination of whether
Indemnitee has satisfied any applicable standard of conduct under Kansas law that is a legally
required condition precedent to indemnification of Indemnitee hereunder against Indemnifiable
Losses relating to, arising out of or resulting from such Indemnifiable Claim (a “Standard of
Conduct Determination”) shall be made as follows:
(i) if a Change in Control shall not have occurred, or if a Change in Control shall have
occurred but Indemnitee shall have requested that the Standard of Conduct Determination be made
pursuant to this clause (i):
(A) by a majority vote or consent of the Disinterested Directors, even if less than a quorum
of the Board;
(B) if such Disinterested Directors so direct, by a majority vote or consent of a committee of
Disinterested Directors designated by a majority vote of all Disinterested Directors, even if less
than a quorum of the Board; or
(C) if there are no such Disinterested Directors, by Independent Counsel in a written opinion
addressed to the Board (with a copy to Indemnitee);
notwithstanding the provisions of Section 7(b)(i)(A) through (C), if Indemnitee is no longer
serving as a director or as an officer of the Company at the time that the Indemnifiable Claim is
initiated, then the Standard of Conduct Determination shall be made by Independent Counsel in a
written opinion to the Board (with a copy to Indemnitee), unless Indemnitee shall have elected in
writing to have such determination made by a majority vote or consent of a quorum of Disinterested
Directors, in which case such determination shall be made by such quorum of Disinterested
Directors; and
(ii) if a Change in Control shall have occurred and Indemnitee shall not have requested that
the Standard of Conduct Determination be made pursuant to clause (i), by Independent Counsel in a
written opinion addressed to the Board (with a copy to Indemnitee).
(c) Indemnitee will cooperate with the person or persons making any Standard of Conduct
Determination, including providing to such person or persons, upon reasonable advance request, any
documentation or information that is not privileged or otherwise protected
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from disclosure and that is reasonably available to Indemnitee and reasonably necessary to
such determination. The Company shall indemnify and hold harmless Indemnitee against and, if
requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five
business days of such request, any and all costs and expenses (including attorneys’ and experts’
fees and expenses) incurred by Indemnitee in cooperating with the person or persons making such
Standard of Conduct Determination.
(d) The Company shall use its reasonable best efforts to cause any Standard of Conduct
Determination required under Section 7(b) to be made as promptly as practicable. If (i)
the person or persons empowered or selected under Section 7 to make the Standard of Conduct
Determination shall not have made a determination within 30 days after the later of (A) receipt by
the Company of written notice from Indemnitee advising the Company of the final disposition of the
applicable Indemnifiable Claim (the date of such receipt being the “Notification Date”) and (B) the
selection of an Independent Counsel, if such determination is to be made by Independent Counsel,
that is permitted under the provisions of Section 7(f) to make such determination and (ii)
Indemnitee shall have fulfilled his/her obligations set forth in Section 7(c), then
Indemnitee shall be deemed to have satisfied the applicable standard of conduct. Such 30-day
period may be extended for a reasonable time, not to exceed an additional 30 days, if the person or
persons making such determination in good faith requires such additional time for the obtaining or
evaluation or documentation and/or information relating thereto and provide written notice of such
extension to Indemnitee prior to expiration of the original 30-day period.
(e) If (i) Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable
Losses pursuant to Section 7(a), (ii) no determination of whether Indemnitee has satisfied
any applicable standard of conduct under Kansas law is a legally required condition precedent to
indemnification of Indemnitee hereunder against any Indemnifiable Losses, or (iii) Indemnitee has
been determined or deemed pursuant to Section 7(b) or Section 7(d) to have
satisfied any applicable standard of conduct under Kansas law which is a legally required condition
precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, then the
Company shall pay to Indemnitee, within five business days after the later of (x) the Notification
Date in respect of the Indemnifiable Claim or portion thereof to which such Indemnifiable Losses
are related, out of which such Indemnifiable Losses arose or from which such Indemnifiable Losses
resulted and (y) the earliest date on which the applicable criterion specified in clause (i), (ii)
or (iii) above shall have been satisfied, a cash amount equal to the amount of such Indemnifiable
Losses.
(f) If a Standard of Conduct Determination is to be made by Independent Counsel pursuant to
Section 7(b)(i) (other than pursuant to the exception provided by the paragraph immediately
following clause (C) of such section), the Independent Counsel shall be selected by the Board, and
the Company shall give written notice to Indemnitee advising him or her of the identity of the
Independent Counsel so selected. If a Standard of Conduct Determination is to be made by
Independent Counsel pursuant to the exception provided by the paragraph immediately following
clause (C) of Section 7(b)(i) or pursuant to Section 7(b)(ii), the Independent
Counsel shall be selected by Indemnitee, and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either case, Indemnitee or
the Company, as applicable, may, within five business days after receiving written notice of
selection from the other, deliver to the other a written objection to such selection. Any
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| objection may be asserted only on the ground that the Independent Counsel so selected does not satisfy the criteria set forth in the definition of “Independent Counsel” set forth in Section 1(h), and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person or firm so selected shall act as Independent Counsel. If written objection is properly and timely made and substantiated, (i) the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit and (ii) the non-objecting party may, at its option, select an alternative Independent Counsel and give written notice to the other party advising such other party of the identity of the alternative Independent Counsel so selected, in which case the provisions of the two immediately preceding sentences and clause (i) of this sentence shall apply to such subsequent selection and notice. If applicable, the provisions of clause (ii) of the immediately preceding sentence shall apply to successive alternative selections. If no Independent Counsel that is permitted under the foregoing provisions of this Section 7(f) to make the Standard of Conduct Determination shall have been selected within 30 days after the Company gives its initial notice pursuant to the first sentence of this Section 7(f) or Indemnitee gives its initial notice pursuant to the second sentence of this Section 7(f), as the case may be, either the Company or Indemnitee may petition any state or federal court of competent jurisdiction in the State of Kansas for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person or firm selected by the Court or by such other person as the Court shall designate, and the person or firm with respect to whom all objections are so resolved or the person or firm so appointed will act as Independent Counsel. In all events, the Company shall pay all of the reasonable fees and expenses of the Independent Counsel incurred in connection with the Independent Counsel’s appointment or selection and determination pursuant to Section 7(b). |
8. Presumption of Entitlement. In making any Standard of Conduct Determination, the person or
persons making such determination shall presume that Indemnitee has satisfied the applicable
standard of conduct, and the Company may overcome such presumption only by its adducing clear and
convincing evidence to the contrary. Any Standard of Conduct Determination that is adverse to
Indemnitee may be challenged by Indemnitee in any state or federal court of competent jurisdiction
in the State of Kansas. No determination by the Company (including by its directors or any
Independent Counsel) that Indemnitee has not satisfied any applicable standard of conduct shall be
a defense to any Claim by Indemnitee for indemnification or reimbursement or advance payment of
Expenses by the Company hereunder or create a presumption that Indemnitee has not met any
applicable standard of conduct.
9. No Other Presumption. For purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea
of nolo contendere or its equivalent, will not create, of itself, a presumption that Indemnitee did
not meet any applicable standard of conduct or that indemnification hereunder is otherwise not
permitted.
10. Non-Exclusivity. The rights of Indemnitee hereunder will be in addition to any other
rights Indemnitee may have under Kansas law, the Constituent Documents, vote of stockholders or disinterested directors or otherwise (collectively, “Other Indemnity
Provisions”); except that (a) to the extent that Indemnitee otherwise would have any greater right
to indemnification under any Other Indemnity Provision, Indemnitee will be deemed to have
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such greater right hereunder and (b) to the extent that any change is made to any Other Indemnity Provision which permits any greater right to indemnification than that provided under this
Agreement as of the date hereof, Indemnitee will be deemed to have such greater right hereunder. The Company will not adopt any amendment to any of the Constituent Documents the effect of which
would be to deny, diminish or encumber Indemnitee’s right to indemnification under this Agreement
or any Other Indemnity Provision.
11. Liability Insurance and Funding. For the duration of Indemnitee’s service as a director
and/or officer of the Company, and thereafter for so long as Indemnitee shall be subject to any
pending Indemnifiable Claim, the Company shall use commercially reasonable efforts (taking into
account the scope and amount of coverage available relative to the cost thereof) to cause to be
maintained in effect policies of directors’ and officers’ liability insurance providing coverage
for directors and/or officers of the Company that is at least substantially comparable in scope and
amount to that provided by the Company’s current policies of directors’ and officers’ liability
insurance. At Indemnitee’s request, the Company shall provide Indemnitee with a copy of all
directors’ and officers’ liability insurance applications, binders, policies, declarations,
endorsements and other related materials. Without limiting the generality or effect of the two
immediately preceding sentences, the Company shall not discontinue or significantly reduce the
scope or amount of coverage from one policy period to the next (i) without the prior approval
thereof by a majority vote of the Continuing Directors, even if less than a quorum, or (ii) if at
the time that any such discontinuation or significant reduction in the scope or amount of coverage
is proposed there are no Continuing Directors, without the prior written consent of Indemnitee
(which consent shall not be unreasonably withheld or delayed). In all policies of directors’ and
officers’ liability insurance obtained by the Company, Indemnitee shall be named as an insured in
such a manner as to provide Indemnitee the same rights and benefits, subject to the same
limitations, as are afforded to the Company’s directors and officers most favorably insured by such
policy. The Company may, but shall not be required to, create a trust fund, grant a security
interest or use other means, including a letter of credit, to ensure the payment of such amounts as
may be necessary to satisfy its obligations to indemnify Indemnitee and advance expenses to
Indemnitee pursuant to this Agreement.
12. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee
against other persons or entities (other than Indemnitee’s successors), including any entity or
enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in Section
1(f). Indemnitee shall execute all papers reasonably required to evidence such rights (all of
Indemnitee’s reasonable Expenses, including attorneys’ fees and charges, related thereto to be
reimbursed by or, at the option of Indemnitee, advanced by the Company).
13. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment to Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee has
otherwise actually received payment (net of Expenses incurred in connection therewith) under any
insurance policy, any Constituent Document, any Other Indemnity Provisions or otherwise (including
from any entity or enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in Section 1(f)) in respect of
such Indemnifiable Losses otherwise indemnifiable hereunder.
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14. Defense of Claims. The Company shall be entitled to participate in the defense of any
Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee. If Indemnitee believes, after consultation with counsel selected by Indemnitee, that
(a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel
with an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim
(including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall
conclude that there may be one or more legal defenses available to Indemnitee that are different
from or in addition to those available to the Company, or (c) any such representation by such
counsel would be precluded under the applicable standards of professional conduct, then Indemnitee
shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable,
local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. The
Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement
of any threatened or pending Indemnifiable Claim effected without the Company’s prior written
consent. The Company shall not, without the prior written consent of Indemnitee, effect any
settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have
been, a party unless such settlement solely involves the payment of money and includes a complete
and unconditional release of Indemnitee from all liability on any claims that are the subject
matter of such Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold
its consent to any proposed settlement. Indemnitee may withhold consent to any settlement that
does not provide a complete and unconditional release of Indemnitee.
15. Successors and Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the business or assets
of the Company, by agreement in form and substance satisfactory to Indemnitee and his or her
counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same
extent the Company would be required to perform if no such succession had taken place.
(b) This Agreement shall be binding upon and inure to the benefit of the Company and any
successor to the Company, including any person acquiring directly or indirectly all or
substantially all of the business or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor will thereafter be deemed the
“Company” for purposes of this Agreement), but shall not otherwise be assignable or delegatable by
the Company.
(c) This Agreement shall inure to the benefit of and be enforceable by Indemnitee’s personal
or legal representatives, executors, administrators, heirs, distributees, legatees and other
successors.
(d) This Agreement is personal in nature and neither of the parties hereto shall, without the
consent of the other, assign or delegate this Agreement or any rights or obligations hereunder
except as expressly provided in Section 15(a), Section 15(b) and Section
15(c). Without limiting the generality or effect of the
foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable, whether by pledge, creation of a security
interest or otherwise, other than by a transfer by Indemnitee’s will or by the laws of descent and
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distribution, and, in the event of any attempted assignment or transfer contrary to this
Section 15(d), the Company shall have no liability to pay any amount so attempted to be
assigned or transferred.
16. Notices. For all purposes of this Agreement, all communications, including notices,
consents, requests or approvals, required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given when hand delivered or dispatched by electronic
facsimile transmission (with receipt thereof orally confirmed), or five business days after having
been mailed by United States registered or certified mail, return receipt requested, postage
prepaid or one business day after having been sent for next-day delivery by a nationally recognized
overnight courier service, addressed to the Company (to the attention of the Secretary of the
Company) and to Indemnitee at the applicable address shown on the signature page hereto, or to such
other address as any party may have furnished to the other in writing and in accordance herewith,
except that notices of changes of address will be effective only upon receipt.
17. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Kansas, without giving effect to the principles of conflict of laws of such State. The Company
and Indemnitee each hereby irrevocably consent to the jurisdiction of the state or federal courts
of the State of Kansas for all purposes in connection with any action or proceeding which arises
out of or relates to this Agreement and agree that any action instituted under this Agreement shall
be brought only in a state or federal court in the State of Kansas.
18. Validity. If any provision of this Agreement or the application of any provision hereof
to any person or circumstance is held invalid, unenforceable or otherwise illegal, the remainder of
this Agreement and the application of such provision to any other person or circumstance shall not
be affected, and the provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent, and only to the extent, necessary to make it enforceable, valid or legal.
In the event that any court or other adjudicative body shall decline to reform any provision of
this Agreement held to be invalid, unenforceable or otherwise illegal as contemplated by the
immediately preceding sentence, the parties thereto shall take all such action as may be necessary
or appropriate to replace the provision so held to be invalid, unenforceable or otherwise illegal
with one or more alternative provisions that effectuate the purpose and intent of the original
provisions of this Agreement as fully as possible without being invalid, unenforceable or otherwise
illegal.
19. Amendments; Waivers; Entire Agreement. No provision of this Agreement may be waived,
modified or discharged unless such waiver, modification or discharge is agreed to in writing signed
by Indemnitee and the Company. No waiver by either party hereto at any time of any breach by the
other party hereto or compliance with any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by either party that
are not set forth expressly in this Agreement. [This Agreement supersedes and replaces the Indemnification Agreement dated ___between the Company and Indemnitee, and the [date] agreement has no further force or effect.]
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20. Legal Fees and Expenses. It is the intent of the Company that Indemnitee not be required
to incur legal fees and or other Expenses associated with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially detract from the benefits intended to be extended to Indemnitee
hereunder. Accordingly, without limiting the generality or effect of any other provision hereof,
if it should appear to Indemnitee that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes or threatens to
take any action to declare this Agreement void or unenforceable, or institutes any litigation or
other action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided
or intended to be provided to Indemnitee hereunder, the Company irrevocably authorizes Indemnitee
from time to time to retain counsel of Indemnitee’s choice, at the expense of the Company as
hereafter provided, to advise and represent Indemnitee in connection with any such interpretation,
enforcement or defense, including the initiation or defense of any litigation or other legal
action, whether by or against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any existing or prior
attorney-client relationship between the Company and such counsel, the Company irrevocably consents
to Indemnitee’s entering into an attorney-client relationship with such counsel, and in that
connection the Company and Indemnitee agree that a confidential relationship shall exist between
Indemnitee and such counsel. Without respect to whether Indemnitee prevails, in whole or in part,
in connection with any of the foregoing, the Company will pay and be solely financially responsible
for any and all attorneys’ and related fees and expenses incurred by Indemnitee in connection with
any of the foregoing.
21. Certain Interpretive Matters. Unless the context of this Agreement otherwise requires,
(a) “it” or “its” or words of any gender include each other gender, (b) words using the singular or
plural number also include the plural or singular number, respectively, (c) the terms “hereof,”
“herein,” “hereby” and derivative or similar words refer to this entire Agreement, (d) the term
“Section” refers to the specified Section of this Agreement, (e) the terms “include,” “includes”
and “including” will be deemed to be followed by the words “without limitation” (whether or not so
expressed), and (f) the word “or” is disjunctive but not exclusive. Whenever this Agreement refers
to a number of days, such number will refer to calendar days unless business days are specified and
whenever action must be taken (including the giving of notice or the delivery of documents) under
this Agreement during a certain period of time or by a particular date that ends or occurs on a
non-business day, then such period or date will be extended until the immediately following
business day. As used herein, “business day” means any day other than Saturday, Sunday or a United
States federal holiday.
22. Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original but all of which together shall constitute one and the same
agreement.
[Signatures Appear On Following Page]
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IN WITNESS WHEREOF, Indemnitee has executed, and the Company has caused its duly authorized
representative to execute, this Agreement as of the date first above written.
| SPRINT NEXTEL CORPORATION 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxx, Xxxxxxxx 00000 |
||||||
| By: | ||||||
Title: |
||||||
| [INDEMNITEE] [Address] |
||||||
| [Signature of Indemnitee] | ||||||
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