Exhibit 10.93
INDEMNITY AGREEMENT
BETWEEN
ITC/\DELTACOM, INC.
AND
[ ]
Dated as of
October 17, 1997
TABLE OF CONTENTS
1. CERTAIN DEFINITIONS.................................................. 2
1.1. Change in Control............................................... 2
1.2. Claim........................................................... 2
1.3. Expenses........................................................ 2
1.4. Indemnifiable Event............................................. 3
1.5. Reviewing Party................................................. 3
1.6. Voting Securities............................................... 3
1.7. Special Independent Counsel..................................... 3
2. BASIC INDEMNIFICATION ARRANGEMENT.................................... 3
3. CHANGE IN CONTROL.................................................... 5
4. INDEMNIFICATION FOR ADDITIONAL EXPENSES.............................. 5
5. LIMITATIONS ON SETTLEMENT AUTHORITY IN SOME CASES.................... 6
6. PARTIAL INDEMNITY, ETC............................................... 6
7. NO PRESUMPTION....................................................... 7
8. NON-EXCLUSIVITY, ETC................................................. 7
9. LIABILITY INSURANCE.................................................. 7
10. PERIOD OF LIMITATIONS................................................ 7
11. AMENDMENTS, ETC...................................................... 8
12. SUBROGATION.......................................................... 8
13. NO DUPLICATION OF PAYMENTS........................................... 8
14. BINDING EFFECT, ETC.................................................. 8
15. TERMINATION.......................................................... 8
16. SEVERABILITY......................................................... 9
17. GOVERNING LAW........................................................ 9
INDEMNITY AGREEMENT
This Agreement is entered into as of ______________, between
ITC/\ DeltaCom, Inc., a Delaware corporation (the "Corporation"), and
____________________ ("Director"), a director or officer of the Corporation.
WHEREAS, both the Corporation and Director recognize the increased
risk of litigation and other claims being asserted against public companies in
today's environment;
WHEREAS, basic protection against undue risk of personal liability of
the Corporation officers heretofore has been provided through insurance coverage
providing reasonable protection at reasonable cost, and Director has relied on
the availability of such coverage;
WHEREAS, the Corporation's Certificate of Incorporation requires the
Corporation to indemnify and advance expenses to its directors and officers to
the full extent permitted by law, and Director has been serving as a director or
executive officer of the Corporation in part in reliance on such provisions;
WHEREAS, in recognition of Director's need for substantial protection
against personal liability in order to insure and enhance Director's continued
service to the Corporation in an effective manner, and Director's reliance on
the aforesaid provision in the Corporation's Certificate of Incorporation, and
in part to provide Director with specific contractual assurance that the
protection promised by such provision will be available to Director (regardless
of, among other things, any amendment to or revocation of such provision of the
Certificate of Incorporation, any change in the composition of the Corporation's
board of directors or the occurrence of any acquisition transaction relating to
the Corporation); and
WHEREAS, the Corporation wishes to provide in this Agreement for the
effective indemnification of and the advancing of expenses to Director to the
fullest extent (whether partial or complete) permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the continued
coverage of Director under the Corporation's director and officer liability
insurance policies;
NOW THEREFORE, in consideration of the premises, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS
1.1. Change in Control
A "Change in Control" shall be deemed to have occurred if (i) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the board of directors of the Corporation and any new director
whose election by the board of directors or nomination for election by the
Corporation's stockholders was approved by a vote of at least two-thirds 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 (ii) the stockholders
of the Corporation approve a merger or consolidation of the Corporation with any
other corporation, other than a merger or consolidation which would result in
the Voting Securities of the Corporation 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 the Corporation or such surviving
entity outstanding immediately after such merger or consolidation, or the
stockholders of the Corporation approve a plan of complete liquidation and
dissolution of the Corporation or an agreement for the sale or disposition by
the Corporation of all or substantially all the Corporation's assets; provided,
however, that a would-be Change in Control under (ii) herein which is approved
and recommended in advance by the Corporation's board of directors shall not be
deemed a Change in Control.
1.2. Claim
A "Claim" is any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation (whether conducted by the
Corporation or any other party), that Director in good faith believes might lead
to the institution of any such action, suit or proceeding, whether civil,
criminal, administrative, investigative or other.
1.3. Expenses
"Expenses" include attorneys' fees and all other costs, expenses and
obligations paid or incurred by or on behalf of Director (other than amounts
paid or payable directly or indirectly to Director or any person or entity
controlled by Director) in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing to defend, be
a witness in or participate in any Claim relating to any Indemnifiable Event.
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1.4. Indemnifiable Event
An "Indemnifiable Event" shall be any event or occurrence related to
the fact that Director is or was a director, officer, employee, agent or
fiduciary of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, or by reason of anything done or not done by Director in any
such capacity.
1.5. Reviewing Party
A "Reviewing Party" shall be any appropriate person or body consisting
of a member or members of the Corporation's board or directors or any other
person or body selected hereunder (including Special Independent Counsel, as
defined below) who is not a party to the particular Claim for which Director is
seeking indemnification. If there has not been Change in Control, the Reviewing
Party shall be selected by the Corporation's board of directors. If there has
been such a Change in Control, the Reviewing Party shall be Special Independent
Counsel.
1.6. Voting Securities
"Voting Securities" are any securities of the Corporation which vote
generally in the election of directors.
1.7. Special Independent Counsel
"Special Independent Counsel" is counsel selected by Director and
approved by the Corporation (which approval shall not be unreasonably withheld)
and who has not, unless waived by the Corporation and Director, otherwise
performed services for the Corporation or Director within the last ten years.
2. BASIC INDEMNIFICATION ARRANGEMENT
(a) In the event Director was, is or becomes a party to or witness or
other participant in, or is threatened to be made a party to or witness or other
participant in, a Claim by reason of (or arising in part out of) an
Indemnifiable Event, the Corporation shall indemnify Director to the fullest
extent permitted by law as soon as practicable but in any event no later than
thirty days after written demand is presented to the Corporation, against any
and all Expenses, judgments, fines, penalties and amounts paid or owing in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines,
penalties or amounts paid in settlement) paid or incurred by or on behalf of
Director in connection with such Claim. Director shall
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give the Corporation written notice of all such Claims and the particulars
thereof as soon as practicable.
(b) If so requested by Director, the Corporation shall advance (within
ten business days of such request) any and all Expenses to Director (an "Expense
Advance"). If required by applicable law, such request shall be preceded or
accompanied by an undertaking by or on behalf of Director to repay any Expenses
so advanced if it shall ultimately be determined that Director is not entitled
to be indemnified by the Corporation. In the event that any person (including,
without limitation, the Corporation) challenges the reasonableness of any
Expense Advance requested by Director, an affidavit provided to the Corporation
by Special Independent Counsel certifying that, in the view of such Special
Independent Counsel, the Expenses in question were reasonably incurred shall
finally and conclusively (but not exclusively) establish the reasonableness of
such Expenses for purposes of determining Director's entitlement to Expense
Advances, but not for purposes of later determining Director's entitlement to
indemnification pursuant to this Agreement at the conclusion of the underlying
action.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
prior to a Change in Control, Director shall not be entitled to indemnification
pursuant to this Agreement in connection with any Claim (other than a claim for
indemnification (including, without limitation, indemnification pursuant to
Section 4 of this Agreement), Expense Advances, or expenses advanced pursuant to
Section 4 of this Agreement) initiated by Director against the Corporation or
any director or officer of the Corporation unless the Corporation has joined in
or consented to the initiation of such Claim; (ii) the obligations of the
Corporation under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined in a writing stating the reasons
therefor that Director would not be permitted to be indemnified under applicable
law; and (iii) the obligation of the Corporation to make an Expense Advance
pursuant to Section 2(b) shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that Director would not be
permitted to be so indemnified under applicable law, the Corporation shall be
entitled to be reimbursed by Director (who hereby agrees to reimburse the
Corporation) for all such amounts theretofore paid; provided, however, that if
Director has commenced legal proceedings in a court of competent jurisdiction to
secure a determination that Director should be indemnified under applicable law,
any determination made by the Reviewing Party that Director would not be
permitted to be indemnified under applicable law shall not be binding and
Director shall not be required to reimburse the Corporation for any Expense
Advance until a final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or lapsed).
(d) If the Reviewing Party determines that Director would not be
permitted to be indemnified in whole or in part under applicable law (such
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determination to be made by the Reviewing Party independent of any position of
the Corporation on any aspect of the indemnification, including without
limitation the appropriateness of the amount of any settlement), Director shall
have the right to commence litigation in any court in the State of Delaware or
in the State(s) of Director's residence or employment, having subject matter
jurisdiction thereof, and in which venue is proper, seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, and the Corporation hereby consents to
service of process and to appear in any such proceeding. The Corporation and
Director hereby agree that Director's remedies at law are inadequate in the
event Director commences litigation to recover indemnification, Expense
Advances, or expenses to be advanced pursuant to Section 4 of this Agreement, in
each case withheld by the Corporation. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Corporation and Director.
3. CHANGE IN CONTROL
If there is a Change in Control of the Corporation, then with respect
to all matters thereafter arising concerning the rights of Director to indemnity
payments and Expense Advances under this Agreement or any other agreement, or
under the Corporation's Certificate of Incorporation or Bylaws now or hereafter
in effect, relating to Claims for Indemnifiable Events, the Corporation shall
seek legal advice only from Special Independent Counsel. Such counsel, among
other things, shall render its written opinion to the Corporation and Director
as to whether and to what extent Director would be permitted to be indemnified
under applicable law. The Corporation agrees to pay the reasonable fees of the
Special Independent Counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
4. INDEMNIFICATION FOR ADDITIONAL EXPENSES.
The Corporation shall indemnify Director against any and all expenses
(including attorneys' fees) and, if requested by Director, shall, within ten
business days of such request, advance such expenses to Director, which are
incurred by or on behalf of Director (other than amounts paid or payable
directly or indirectly to Director or any person or entity controlled by
Director) in connection with any claim asserted against or action brought by
Director for (i) indemnification hereunder or advance payment of Expenses by the
Corporation under this Agreement (or any other agreement or the Corporation's
Certificate of Incorporation or by-laws now or hereafter in effect) relating to
Claims for Indemnifiable Events, and/or (ii) recovery under any director and
officer liability insurance policies maintained by the Corporation, regardless
of whether Director ultimately is determined to be entitled
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to such indemnification, advance expense payment or insurance recovery, as the
case may be.
5. LIMITATIONS ON SETTLEMENT AUTHORITY IN SOME CASES
(a) If no Change in Control has occurred, Director shall not
independently negotiate settlement without first giving the Reviewing Party and
the Corporation twenty business days' notice. Thereafter, Director may engage
in such negotiations and may settle the case unless the Reviewing Party and
trial counsel for the Corporation handling the case (and in cases where outside
counsel is used, such outside counsel) advise Director that they have
investigated the Director's involvement in the event and have determined that
the matter is appropriate and legal for indemnity and all judgments, expenses
and costs will, if lawful, be paid by the Corporation; provided, however, that
such limitation on settlement negotiations shall not apply to actions by or in
the right of the Corporation against Director. The Reviewing Party and such
counsel shall also promptly give Director notice of any subsequent change or
reversal of any such prior determination of the Reviewing Party and such
counsel, stating the reasons for such change or reversal, after which notice
Director may independently negotiate and settle the case.
(b) In any case, the Corporation shall not unreasonably withhold its
consent to any proposed settlement.
6. PARTIAL INDEMNITY, ETC.
If Director is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of Expenses, judgments,
fines, penalties and amounts paid in settlement of a Claim but not, however, for
all of the total amount thereof, the Corporation shall nevertheless indemnify
Director for the portion thereof to which Director is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Director has been successful on the merits or otherwise in defense of any or all
Claims relating in whole or in part to an Indemnifiable Event or in defense of
any issue or matter therein, including dismissal without prejudice, Director
shall be indemnified against all Expenses incurred in connection therewith. In
connection with any determination by the Reviewing Party as to whether Director
is entitled to be indemnified hereunder, the burden of proof shall be on the
Corporation to establish that Director is not so entitled.
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7. 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 create a presumption that Director 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. The
termination of a suit by settlement shall be presumed to be a disposition
favorable to Director and in the best interests of the Corporation.
8. NON-EXCLUSIVITY, ETC.
The rights of Director hereunder shall be in addition to any other
rights Director may have under the Corporation's Certificate of Incorporation,
its Bylaws, the Delaware General Corporation Law or any other law or agreement.
To the extent that a change in applicable law (whether by statute or judicial
decision) permits greater indemnification by agreement than would be afforded
currently, it is the intent of the parties hereto that Director shall enjoy by
this Agreement the greater benefits so afforded by such change.
9. LIABILITY INSURANCE
To the extent the Corporation maintains an insurance policy or
policies providing director and officer liability insurance, Director shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any the Corporation director or
officer.
10. PERIOD OF LIMITATIONS
No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Corporation or any affiliate of the Corporation
against Director, Director's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Corporation or its
affiliate shall be extinguished and deemed released unless asserted by the
timely filing of a legal action within such two-year period; provided, however,
that if any shorter period of limitations is otherwise applicable to any such
cause of action, such shorter period shall govern.
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11. AMENDMENTS, ETC.
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
12. SUBROGATION
In the event of payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of
Director, who shall execute all papers required and shall do everything that may
be necessary to secure such rights, including the execution of such documents
necessary to enable the Corporation effectively to bring suit to enforce such
rights.
13. NO DUPLICATION OF PAYMENTS
The Corporation shall not be liable under this Agreement to make any
payment in connection with any claim made against Director to the extent
Director has otherwise actually received payment (under any insurance policy,
the Corporation's Certificate of Incorporation or Bylaws or otherwise) of the
amounts otherwise Indemnifiable hereunder.
14. BINDING EFFECT, ETC.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors (including
any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business and/or assets of the Corporation),
assigns, spouses, heirs, and personal and legal representatives.
15. TERMINATION
This Agreement may be terminated by either party by giving the other
three months' written notice; provided, however, that the Corporation may not
terminate this Agreement unless the Corporation is concurrently terminating all
like Indemnity Agreements then in force. No termination of this Agreement,
automatic or otherwise, shall nullify any of the rights and obligations of
either Director or the Corporation hereunder in respect of any matter occurring
prior to the effective date of termination.
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16. SEVERABILITY
The provisions of this Agreement shall be severable in the event that
any of the provisions hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law.
17. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed in such state, without giving effect to the principles of
conflicts of laws.
ITC/\DELTACOM, INC.
By:
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Name:
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Title:
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DIRECTOR
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