Exhibit 10(e)
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this day of _______, 2003, between Sprint
Corporation, a Kansas corporation ("Sprint"), and ______________ (the
"Indemnitee").
WHEREAS, it is important to Sprint to attract and retain as directors and
officers the most capable persons available; and
WHEREAS, the Bylaws of Sprint (the "Bylaws") provide for the
indemnification of the officers, directors, agents and employees of the
corporation as authorized by K.S.A. 17-6305 (the "State Statute"); and
WHEREAS, such Bylaws and the State Statute specifically provide that they
are not exclusive, and thereby contemplate that contracts may be entered into
between Sprint and its directors and officers with respect to indemnification of
such directors and officers; and
WHEREAS, in accordance with the authorization provided by the State Statute
and the Bylaws, Sprint has purchased and presently maintains a policy or
policies of Directors and Officers Liability Insurance ("D & O Insurance"),
covering certain liabilities which may be incurred by its directors and officers
in the performance of their services for Sprint; and
WHEREAS, recent developments with respect to the terms and availability of
D & O Insurance and with respect to the application, amendment and enforcement
of statutory and bylaw indemnification provisions generally have raised
questions concerning the adequacy and reliability of the protection afforded to
directors and officers thereby; and
WHEREAS, in order to resolve such questions and thereby induce the
Indemnitee to agree to serve or continue to serve as a director and/or officer
of Sprint, Sprint has determined and agreed to enter into this contract with the
Indemnitee;
NOW, THEREFORE, in consideration of the premises and of Indemnitee's
agreeing to serve or continuing to serve as a director and/or officer of Sprint,
the parties hereto agree as follows:
l. Indemnity. Sprint hereby agrees to hold harmless and indemnify the
Indemnitee to the full extent permitted by law:
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a. Against any and all expenses (including attorneys' fees), judgments,
fines, penalties and amounts paid in settlement actually and reasonably incurred
by the Indemnitee in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, to which the Indemnitee is, was or at any time becomes a party,
or is threatened to be made a party, by reason of the fact that the Indemnitee
is, was or at any time becomes a director, officer, employee, agent or fiduciary
of Sprint or by reason of anything done or not done by Indemnitee in any such
capacity, whether prior to or subsequent to the date of this Agreement; and
b. Against any and all expenses (including attorneys' fees) actually and
reasonably incurred by the Indemnitee in serving or preparing to serve as a
witness or other participant in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, if
Indemnitee is such a witness or participant by reason of the fact that the
Indemnitee is, was or at any time becomes a director, officer, employee, agent
or fiduciary of Sprint.
2. Specific Limitations on Indemnity. Indemnitee shall not be entitled to
indemnification under this Agreement:
a. In respect to remuneration paid to or advantage gained by the Indemnitee
if it shall be determined by a final judgment or other final adjudication that
the Indemnitee was not legally entitled to such remuneration or advantage;
b. On account of the Indemnitee's conduct which is finally adjudged to have
been knowingly fraudulent, deliberately dishonest or willful misconduct;
c. Prior to a Change in Control (as defined in Section 4(d)), in respect of
any action, suit or proceeding initiated by the Indemnitee against Sprint or any
director or officer of Sprint unless Sprint has joined in or consented to the
initiation of such action, suit or proceeding, except (i) as set forth in
Section 12(b) hereof, (ii) in respect of any counterclaims made against
Indemnitee in any such action, suit or proceeding, and (iii) to the extent
Indemnitee seeks contribution or apportionment of an award or settlement against
Indemnitee and against Sprint and/or any other director or officer of Sprint.
3. Advance of Expenses and Payment of Indemnification. Upon the written
request of Indemnitee, expenses that are subject to indemnification under this
Agreement shall be advanced by Sprint within five business days of receipt of
such request. Subject to Section 4(a), indemnification shall be made under this
Agreement no later than sixty (60) days after receipt by Sprint
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of the written request of Indemnitee, which written request shall identify the
expenses, judgments, fines and amounts paid in settlement for which
indemnification is requested. Written request shall be deemed received three
days after the date postmarked if sent by prepaid mail properly addressed to
Sprint at the address set forth in Section 11 hereof.
4. Determination of Indemnification.
a. Subject to Section 12, (i) the obligations of Sprint under Section 1
shall be subject to the condition that the Reviewing Party shall have determined
(in a written opinion, in any case in which Independent Legal Counsel makes the
determination under this Section 4) that Indemnitee would be permitted to be
indemnified under applicable law, and (ii) the obligation of Sprint to make an
expense advance pursuant to Section 3 shall be subject to the condition that,
if, when and to the extent that it is finally determined that Indemnitee would
not be permitted to be indemnified for such expenses under applicable law,
Sprint shall be entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse Sprint) for all such amounts theretofore paid. Indemnitee's obligation
to reimburse Sprint for expense advances shall be unsecured and no interest
shall be charged thereon.
b. If there has not been a Change in Control or if there has been a Change
in Control which has been approved by a majority of Sprint's Board of Directors
who were directors immediately prior to such Change in Control, the Reviewing
Party shall be selected by the Board of Directors, and if there has been a
Change in Control (other than a Change in Control which has been approved by a
majority of Sprint's Board of Directors who were directors immediately prior to
such Change in Control) the Reviewing Party shall be the Independent Legal
Counsel referred to in Section 4(c). If there has been no determination by the
Reviewing Party within the sixty (60) day period referred to in Section 3, the
Reviewing Party shall be deemed to have made a determination that it is
permissible to indemnify Indemnitee under applicable law.
c. Sprint agrees that if there is a Change in Control of Sprint (other than
a Change in Control which has been approved by a majority of Sprint's Board of
Directors who were directors immediately prior to such Change in Control) then
Independent Legal Counsel shall be selected by Indemnitee and approved by Sprint
(which approval shall not be unreasonably withheld) and such Independent Legal
Counsel shall determine whether the Indemnitee is entitled to indemnification
under this Agreement or any other agreement or Articles of Incorporation or
Bylaws of Sprint now or hereafter in effect relating to indemnification. If
Independent Legal Counsel is making the determination under this Section 4, such
Independent Legal Counsel shall render its
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written opinion to Sprint and Indemnitee as to whether and to what extent the
Indemnitee will be permitted to be indemnified. Sprint agrees to pay the
reasonable fees of the Independent Legal Counsel and to indemnify fully such
Independent Legal Counsel against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or the engagement of Independent Legal Counsel pursuant hereto.
d. "Change in Control" shall be deemed to have occurred if (i) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended), other than a trustee or other fiduciary holding securities
under an employee benefit plan of Sprint or a corporation owned directly or
indirectly by the stockholders of Sprint in substantially the same proportions
as their ownership of stock of Sprint, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
Sprint representing 20% or more of the total voting power represented by
Sprint's then outstanding Voting Securities, or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of Sprint and any new director whose election by the
Board of Directors or nomination for election by Sprint's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (iii) the stockholders of Sprint
approve a merger or consolidation of Sprint with any other corporation, other
than a merger or consolidation which would result in the Voting Securities of
Sprint outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of Sprint or such surviving entity outstanding immediately
after such merger or consolidation, or the stockholders of Sprint approve a plan
of complete liquidation of Sprint or an agreement for the sale or disposition by
Sprint (in one transaction or a series of transactions) of all or substantially
all the assets of Sprint.
"Reviewing Party" shall mean any appropriate person or body consisting of a
member or members of the Board of Directors of Sprint or any other person or
body appointed by the Board who is not a party to the particular action, suit or
proceeding for which Indemnitee is seeking indemnification, or Independent Legal
Counsel.
"Independent Legal Counsel" shall mean an attorney, selected in accordance
with the provisions of Section 4, who shall not have otherwise performed
services for Sprint or Indemnitee within
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the last five years (other than in connection with seeking indemnification under
this Agreement). Independent Legal Counsel shall not be any person who, under
the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either Sprint or Indemnitee in an action to
determine Indemnitee's rights under this Agreement, nor shall Independent Legal
Counsel be any person who has been sanctioned or censured for ethical violations
of applicable standards of professional conduct.
"Voting Securities" shall mean any securities of Sprint which vote
generally in the election of directors.
5. Partial Indemnity; Expenses. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by Sprint for some or a portion
of the expenses, judgments, fines, penalties and amounts paid in settlement
incurred by the Indemnitee, but not for the total amount thereof, Sprint shall
indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or
all actions, suits or proceedings relating in whole or in part to an event
subject to indemnification hereunder or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be indemnified
against expenses incurred in connection with such action, suit, proceeding,
issue or matter, as the case may be.
6. Non-exclusivity. The rights of the Indemnitee under this Agreement shall
be in addition to any other rights Indemnitee may have under the Articles of
Incorporation or the Bylaws of Sprint, the Kansas General Corporation Code or
otherwise. To the extent that a change in the Kansas General Corporation Code
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Articles of Incorporation
and the Bylaws of Sprint and this Agreement, it is the intent of the parties
hereto that Indemnitee shall by this Agreement be entitled to the greater
benefits so afforded by such change.
7. Liability Insurance. To the extent Sprint maintains D & O Insurance,
Sprint shall maintain coverage for Indemnitee under such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
provided under such policy or policies in effect for any other director or
officer of Sprint.
8. No Duplication of Payments. Sprint shall not be liable under this
Agreement to make any payment in connection with any claim against the
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any insurance policy, Bylaw or otherwise) of the amounts otherwise
indemnifiable
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hereunder or to the extent that Indemnitee is entitled to be indemnified
directly by any insurance company under the individual directors' and officers'
liability provisions of any D & O Insurance maintained by Sprint.
9. No Presumption. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not of itself create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law.
10. Continuation of Indemnity. All agreements and obligations of Sprint
contained herein shall continue during the period the Indemnitee is a director,
officer, employee, agent or fiduciary of Sprint and shall continue thereafter so
long as the Indemnitee shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that the Indemnitee was a director or
officer of Sprint or serving in any other capacity referred to herein.
11. Notification of Proceedings; Consent to Settlements. Promptly after
receipt by the Indemnitee of notice of the commencement of any action, suit or
proceeding, the Indemnitee shall, if a claim in respect thereof is to be made
against Sprint under this Agreement, notify Sprint of the commencement thereof.
Notice shall be in writing and shall be addressed as follows:
Sprint Corporation
X.X. Xxx 00000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
Notice shall be deemed received if sent by prepaid mail properly addressed.
Indemnitee and Sprint shall cooperate fully with each other in the defense of
any such action, suit or proceeding and each shall provide the other with such
information as the other may reasonably require.
Sprint shall not be liable to indemnify the Indemnitee under this Agreement
for any amounts paid in settlement of any action or claim effected without its
written consent (which consent shall not be unreasonably withheld).
12. Enforcement.
a. Sprint expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order to induce
the Indemnitee to agree to serve
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or to continue to serve as a director and/or officer of Sprint and acknowledges
that the Indemnitee is relying upon this Agreement in agreeing to serve or
continuing to serve in such capacity.
b. The right to indemnification provided by this Agreement shall be
enforceable by Indemnitee in any court in the State of Kansas having subject
matter jurisdiction thereof and in which venue is proper. The Indemnitee shall
have the right to commence litigation in any such court challenging any
determination by the Reviewing Party or any aspect thereof, or the legal or
factual bases therefor. Sprint shall reimburse Indemnitee for any and all
reasonable expenses (including attorneys' fees) incurred by Indemnitee in
connection with any claim asserted or action brought by Indemnitee to enforce
rights or to collect moneys due under this Agreement, the Articles of
Incorporation or the Bylaws of Sprint or any other agreement with Sprint now or
hereafter in effect relating to indemnification, or any D & O Insurance
purchased and maintained by Sprint, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advance expense payment or
insurance coverage, as the case may be, unless the court determines that the
claim or action is frivolous or that assertions made therein were made with no
reasonable basis.
c. In connection with any determination by the Reviewing Party or otherwise
as to whether Indemnitee is entitled to be indemnified hereunder the burden of
proof shall be on Sprint to establish that Indemnitee is not so entitled.
13. Separability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof. The parties agree that the court making such
determination that any provision hereof is invalid or unenforceable shall have
the power to modify such provision to the minimum extent necessary to avoid a
violation of law consistent with the intent of the parties manifested by such
provision. If this Agreement or any portion thereof shall be held to be invalid
or unenforceable for any reason, Sprint shall nevertheless indemnify Indemnitee
to the fullest extent permitted by any applicable portion of this Agreement that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
14. Governing Law; Binding Effect; Amendment and Termination.
a. This Agreement shall be interpreted and enforced in accordance with the
laws of the State of Kansas.
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b. This Agreement shall be binding upon the Indemnitee and upon Sprint, its
successors and assigns (including any transferee of all or substantially all of
the assets of Sprint and any successor by merger or operation of law), and shall
inure to the benefit of the Indemnitee, his or her heirs, personal
representatives and assigns and to the benefit of Sprint, its successors and
assigns. Sprint shall require and cause any successor to all or substantially
all of its assets, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that Sprint would be required to perform if no
succession had taken place.
c. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto. No
waiver of any provision of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof, and no such waiver shall constitute a
continuing waiver.
15. Subrogation. In the event of payment under this Agreement, Sprint shall
be subrogated to the extent of such payment to all of the rights of recovery of
such Indemnitee, who shall execute all papers required and shall do everything
that may be necessary to secure such rights.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SPRINT CORPORATION
By _____________________________________
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