Exhibit 10.55
INDEMNIFICATION AGREEMENT
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,
exe
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