Exhibit 99.6
INDEMNIFICATION
AGREEMENT
THIS AGREEMENT is made as of this
day of May, 2006, between Sprint Nextel Corporation, a Kansas
corporation (“Sprint Nextel”), and
(the “Indemnitee”).
WHEREAS, it is important to Sprint
Nextel to attract and retain as directors and officers for itself
and its subsidiaries the most capable persons available;
and
WHEREAS, the Bylaws of Sprint Nextel
(the “Bylaws”) provide for the indemnification of any
person that is serving at the request of Sprint Nextel as a
director, officer or employee of any other enterprise (any such
person, a “Covered Person”) as authorized by K.S.A.
17-6305 (the “State Statute”); and
WHEREAS, Sprint Nextel acknowledges
that it has requested Indemnitee to serve as a director of Embarq
and that Indemnitee is therefore a Covered Person;
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 Nextel and Covered Persons with respect to indemnification;
and
WHEREAS, in accordance with the
authorization provided by the State Statute and the Bylaws, Sprint
Nextel 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 Covered Persons in the performance of their services
for Sprint Nextel; 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 thereby; and
WHEREAS, in order to resolve such
questions and thereby induce the Indemnitee to agree to serve as a
director of Embarq Corporation, a Delaware corporation
(“Embarq”), while it is a wholly owned subsidiary of
Sprint Nextel, Sprint Nextel 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 as a
director of Embarq, the parties hereto agree as follows:
l. Indemnity . Sprint Nextel
hereby agrees to hold harmless and indemnify the Indemnitee, to the
full extent permitted by law, commencing on the date on which the
Indemnitee became a director of Embarq:
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 at any time becomes a
party, or is threatened to be made a party, by reason of the fact
that the Indemnitee was a director of Embarq prior to or at the
effective time of the distribution of shares of common stock of
Embarq by Sprint Nextel as contemplated by the Registration
Statement on Form 10 filed by Embarq under the Securities Exchange
Act of 1934, as amended (such distribution of shares, the
“Distribution,” and such effective time, the
“Distribution Time”), or by reason of anything done or
not done by Indemnitee in any such capacity prior to or at the
Distribution Time; 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 was a director of Embarq
prior to or at the Distribution Time.
2. Specific Limitations on
Indemnity .
a. If (i) the
“Separation” and “Distribution” under the
Separation and Distribution Agreement between Embarq and Sprint
dated as of May 1, 2006 (the “SDA) has occurred, and
(ii) Sprint Nextel has transferred to Embarq the “Embarq
Group Assets” as required by the SDA, then Sprint Nextel is
not required to indemnify the Indemnitee under this Agreement,
unless the action for which indemnity is sought was an action
required or contemplated under the SDA or any Ancillary Agreement
to implement the “Separation” or
“Distribution.”
b. Notwithstanding any other
provision hereof, Indemnitee shall not be entitled to
indemnification under this Agreement:
i. 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;
ii. On account of the
Indemnitee’s conduct which is finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful
misconduct;
iii. 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 Nextel or
any of its subsidiaries or any director or officer of Sprint Nextel
or any of its subsidiaries unless Sprint Nextel 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 Nextel or any
of its subsidiaries and/or any other director or officer of Sprint
Nextel or of any of its subsidiaries;
2
iv. In respect of anything done or
not done by Indemnitee or other matter occurring after the
Distribution Time.
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 Nextel 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 Nextel 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 Nextel at the address set forth
in Section 11 hereof.
4. Determination of
Indemnification .
a. Subject to Section 12,
(i) the obligations of Sprint Nextel 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 Nextel 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 Nextel shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse Sprint Nextel) for all such amounts
theretofore paid. Indemnitee’s obligation to reimburse Sprint
Nextel 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 Nextel’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 Nextel’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 Nextel agrees that if
there is a Change in Control of Sprint Nextel (other than a Change
in Control which has been approved by a majority of Sprint
Nextel’
