Exhibit 10.11
AIRVANA, INC.
INDEMNIFICATION AGREEMENT
This Agreement is made as of the ____ day of ________, 2007, by and between
Airvana, Inc., a Delaware corporation (the "Corporation), and
___________________ (the "Indemnitee"), a director or officer of the
Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available, and
WHEREAS, the increase in corporate litigation subjects directors and
officers to expensive litigation risks, and
WHEREAS, it is now and has always been the policy of the Corporation to
indemnify its directors and officers, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to
serve, as a director or officer of the Corporation.
NOW THEREFORE, the Corporation and the Indemnitee do hereby agree as
follows:
1. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution proceeding,
administrative hearing or other proceeding, whether brought by or in the right
of the Corporation or otherwise and whether of a civil, criminal, administrative
or investigative nature, and any appeal therefrom.
(b) The term "Corporate Status" shall mean the status of a person who
is or was, or has agreed to become, a director or officer of the Corporation, or
is or was serving, or has agreed to serve, at the request of the Corporation, as
a director, officer, fiduciary, partner, trustee, member, employee or agent of,
or in a similar capacity with, another corporation, partnership, joint venture,
trust, limited liability company or other enterprise.
(c) The term "Expenses" shall include, without limitation, attorneys'
fees, retainers, court costs, transcript costs, fees and expenses of experts,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees and other disbursements or expenses of
the types customarily incurred in connection with investigations, judicial or
administrative proceedings or appeals, but shall not include the amount of
judgments, fines or penalties against Indemnitee or amounts paid in settlement
in connection with such matters.
(d) The term "Change in Control" shall mean the occurrence of any one
of the following:
(i) individuals who, on the date of this Agreement, constitute
the Board (the "Incumbent Directors") cease for any reason to constitute at
least a majority of the
Board, provided that any person becoming a director subsequent to the date of
this Agreement whose election or nomination for election was approved by a vote
of at least a majority of the Directors then on the Board (either by a specific
vote or by approval of the proxy statement of the Corporation in which such
person is named as a nominee for director, without written objection to such
nomination) shall be an Incumbent Director; provided, however, that no
individual initially elected or nominated as a director of the Corporation as a
result of an actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of proxies by or on
behalf of any person other than the Board shall be deemed to be an Incumbent
Director;
(ii) any "person" (as such term is defined in the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 50% or more of the combined voting
power of the Corporation's then outstanding securities eligible to vote for the
election of the Board (the "Corporation Voting Securities"); provided, however,
that the event described in this paragraph (ii) shall not be deemed to be a
Change in Control by virtue of any of the following acquisitions: (A) by the
Corporation or any subsidiary, (B) by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any subsidiary, (C) by any
underwriter temporarily holding securities pursuant to an offering of such
securities, (D) pursuant to a Non-Qualifying Transaction, as defined in
paragraph (iii), or (E) by any person of Voting Securities from the Corporation,
if a majority of the Incumbent Board approves in advance the acquisition of
beneficial ownership of 50% or more of Corporation Voting Securities by such
person;
(iii) the consummation of a merger, consolidation, statutory
share exchange, reorganization or similar form of corporate transaction
involving the Corporation or any of its subsidiaries that requires the approval
of the Corporation's stockholders, whether for such transaction or the issuance
of securities in the transaction (a "Business Combination"), unless immediately
following such Business Combination: (A) more than 50% of the total voting power
of (x) the corporation resulting from such Business Combination (the "Surviving
Corporation"), or (y) if applicable, the ultimate parent corporation that
directly or indirectly has beneficial ownership of 100% of the voting securities
eligible to elect directors of the Surviving Corporation (the "Parent
Corporation"), is represented by Corporation Voting Securities that were
outstanding immediately prior to such Business Combination (or, if applicable,
is represented by shares into which such Corporation Voting Securities were
converted pursuant to such Business Combination), and such voting power among
the holders thereof is in substantially the same proportion as the voting power
of such Corporation Voting Securities among the holders thereof immediately
prior to the Business Combination, (B) no person (other than any employee
benefit plan (or related trust) sponsored or maintained by the Surviving
Corporation or the Parent Corporation), is or becomes the beneficial owner,
directly or indirectly, of 35% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving Corporation)
and (C) at least half of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving Corporation)
following the consummation of the Business Combination were Incumbent Directors
at the time of the Board's approval of the execution of the initial agreement
providing for such Business Combination (any Business Combination
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which satisfies all of the criteria specified in (A), (B) and (C) above shall be
deemed to be a "Non-Qualifying Transaction");
(iv) the stockholders of the Corporation approve a plan of
complete liquidation or dissolution of the Corporation;
(v) the consummation of a sale of all or substantially all of the
Corporation's assets; or
(vi) the occurrence of any other event that the Board determines
by a duly approved resolution constitutes a Change in Control.
(e) The term "Independent Counsel" shall mean a law firm, or a member
of a law firm, that is experienced in matters of corporation law and neither
currently is, nor in the past five years has been, retained to represent: (i)
the Corporation or the Indemnitee in any matter material to either such party or
(ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "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 Corporation or the Indemnitee in an action to determine
the Indemnitee's rights under this Agreement.
(f) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with respect
to any employee benefit plan; references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner such person reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Agreement.
2. Indemnity of Indemnitee. Subject to Sections 5, 6 and 8, the Corporation
shall indemnify the Indemnitee in connection with any Proceeding as to which the
Indemnitee is, was or is threatened to be made a party (or is otherwise
involved) by reason of the Indemnitee's Corporate Status, to the fullest extent
permitted by law (as such may be amended from time to time). In furtherance of
the foregoing and without limiting the generality thereof:
(a) Indemnification in Third-Party Proceedings. The Corporation shall
indemnify the Indemnitee in accordance with the provisions of this Section 2(a)
if the Indemnitee was or is a party to or threatened to be made a party to or
otherwise involved in any Proceeding (other than a Proceeding by or in the right
of the Corporation to procure a judgment in its favor or a Proceeding referred
to in Section 5 below) by reason of the Indemnitee's Corporate Status or by
reason of any action alleged to have been taken or omitted in connection
therewith, against all Expenses, judgments, fines, penalties and amounts paid in
settlement actually and reasonably incurred by or on behalf of the Indemnitee in
connection with such Proceeding, if the Indemnitee acted in good faith and in a
manner which the Indemnitee reasonably believed to be in, or not
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opposed to, the best interests of the Corporation and, with respect to any
criminal Proceeding, had no reasonable cause to believe that his or her conduct
was unlawful.
(b) Indemnification in Proceedings by or in the Right of the
Corporation. The Corporation shall indemnify the Indemnitee in accordance with
the provisions of this Section 2(b) if the Indemnitee was or is a party to or
threatened to be made a party to or otherwise involved in any Proceeding by or
in the right of the Corporation to procure a judgment in its favor by reason of
the Indemnitee's Corporate Status or by reason of any action alleged to have
been taken or omitted in connection therewith, against all Expenses and, to the
extent permitted by law, amounts paid in settlement actually and reasonably
incurred by or on behalf of the Indemnitee in connection with such Proceeding,
if the Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, except that, if applicable law so requires, no indemnification
shall be made under this Section 2(b) in respect of any claim, issue or matter
as to which the Indemnitee shall have been adjudged to be liable to the
Corporation, unless, and only to the extent, that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of such liability but in view of
all the circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses as the Court of Chancery or such other
court shall deem proper.
3. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful, on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein (other than a Proceeding referred
to in Section 5), the Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by or on behalf of the Indemnitee in connection
therewith.
4. Indemnification for Expenses of a Witness. To the extent that the
Indemnitee is, by reason of the Indemnitee's Corporate Status, a witness in any
Proceeding to which the Indemnitee is not a party, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by or on
behalf of the Indemnitee in connection therewith.
5. Exceptions to Right of Indemnification. Notwithstanding anything to the
contrary to this Agreement, except as set forth in Section 9,
(a) the Corporation shall not indemnify the Indemnitee under this
Agreement in connection with a Proceeding (or part thereof) initiated by the
Indemnitee unless (i) the initiation thereof was approved by the Board of
Directors of the Corporation or (ii) the Proceeding was commenced following a
Change in Control; and
(b) the Corporation shall not indemnify the Indemnitee to the extent
the Indemnitee is reimbursed from the proceeds of insurance, and in the event
the Corporation makes any indemnification payments to the Indemnitee and the
Indemnitee is subsequently reimbursed from the proceeds of insurance, the
Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
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6. Notification and Defense of Claim.
(a) As a condition precedent to the Indemnitee's right to be
indemnified, the Indemnitee must notify the Corporation in writing as soon as
practicable of any Proceeding for which indemnity will or could be sought. With
respect to any Proceeding of which the Corporation is so notified, the
Corporation will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee. After notice from the Corporation to the
Indemnitee of its election so to assume such defense, the Corporation shall not
be liable to the Indemnitee for any legal or other expenses subsequently
incurred by the Indemnitee in connection with such Proceeding, other than as
provided below in this Section 6. The Indemnitee shall have the right to employ
his or her own counsel in connection with such Proceeding, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably determined
that there may be a conflict of interest or position on any significant issue
between the Corporation and the Indemnitee in the conduct of the defense of such
Proceeding or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such Proceeding, in each of which cases the fees and
expenses of counsel for the Indemnitee shall be at the expense of the
Corporation, except as otherwise expressly provided by this Agreement, and
provided that Indemnitee's counsel shall cooperate reasonably with the
Corporation's counsel to minimize the cost of defending claims against the
Corporation and the Indemnitee. The Corporation shall not be entitled, without
the consent of the Indemnitee, to assume the defense of any claim brought by or
in the right of the Corporation or as to which counsel for the Indemnitee shall
have reasonably made the determination provided for in clause (ii) above.
(b) The Corporation shall not be required to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any Proceeding
effected without its written consent. The Corporation shall not settle any
Proceeding in any manner that would impose any penalty or limitation on the
Indemnitee without the Indemnitee's written consent. Neither the Corporation nor
the Indemnitee will unreasonably withhold or delay their consent to any proposed
settlement.
7. Advancement of Expenses. Subject to the provisions of Section 8, in the
event that (a) the Corporation does not assume the defense pursuant to Section 6
of any Proceeding of which the Corporation receives notice under this Agreement
or (b) the Corporation assumes such defense but Indemnitee is, pursuant to
Section 6, entitled to have the fees and costs of Indemnitee's own counsel paid
for by the Corporation, any Expenses actually and reasonably incurred by or on
behalf of the Indemnitee in defending such Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding; provided,
however, that the payment of such Expenses incurred by or on behalf of the
Indemnitee in advance of the final disposition of such Proceeding shall be made
only upon receipt of an undertaking by or on behalf of the Indemnitee to repay
all amounts so advanced in the event that it shall ultimately be determined,
after the conclusion of such Proceeding, after that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Agreement.
Such undertaking shall be accepted without reference to the financial ability of
the Indemnitee to make repayment. Any
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advances and undertakings to repay pursuant to this Section 7 shall be unsecured
and interest-free.
8. Procedures.
(a) In order to obtain indemnification or advancement of Expenses
pursuant to this Agreement, the Indemnitee shall submit to the Corporation a
written request, including in such request such documentation and information as
is reasonably available to the Indemnitee and is reasonably necessary to
determine whether and to what extent the Indemnitee is entitled to
indemnification or advancement of Expenses. Any such indemnification or
advancement of Expenses shall be made promptly, and in any event within (i) in
the case of advancement of Expenses under Section 7, 30 calendar days after
receipt by the Corporation of the written request of the Indemnitee, or (ii) in
the case of all other indemnification, 60 calendar days after receipt by the
Corporation of the written request of the Indemnitee, subject to the provisions
of Sections 8(b) and (c) below.
(b) With respect to requests for indemnification under Section 2,
indemnification shall be made unless the Corporation determines that Indemnitee
has not met the applicable standard of conduct set forth in Section 2. Any
determination as to whether Indemnitee has met the applicable standard of
conduct set forth in Section 2, and any determination that advanced Expenses
must be subsequently repaid to the Corporation, shall be made, in the discretion
of the Board of Directors of the Corporation, (1) by a majority vote of the
directors of the Corporation consisting of persons who are not at that time
parties to the Proceeding ("disinterested directors"), whether or not a quorum,
(2) by a committee of disinterested directors designated by a majority vote of
disinterested directors, whether or not a quorum, (3) if there are no
disinterested directors, or if the disinterested directors so direct, by
Independent Counsel in a written opinion to the Board, or (4) by the
stockholders of the Corporation. Any such determination with respect to requests
under Section 2 shall be made within the 60-day period referred to in clause
(ii) of Section 8(a) (unless extended by mutual agreement by the Corporation and
Indemnitee). For the purpose of the foregoing determination with respect to
requests under Section 2 or repayment of advanced Expenses, the Indemnitee shall
be entitled to a presumption that he or she has met the applicable standard of
conduct set forth in Section 2.
(c) Notwithstanding anything to the contrary set forth in this
Agreement, if a request for indemnification is made after a Change in Control,
at the election of the Indemnitee made in writing to the Corporation, any
determination required to be made pursuant to Section 8(b) above as to whether
the Indemnitee has met the applicable standard of conduct or is required to
repay advanced Expenses shall be made by Independent Counsel selected as
provided in this Section 8(c). The Independent Counsel shall be selected by the
Indemnitee, unless the Indemnitee shall request that such selection be made by
the Board of Directors of the Corporation. The party making the determination
shall give written notice to the other party advising it of the identity of the
Independent Counsel so selected. The party receiving such notice may, within
seven days after such written notice of selection shall have been given, deliver
to the other party a written objection to such selection. Such objection may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" as defined in Section 1, and the
objection shall set forth with particularity
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the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If a written objection is
made, the Independent Counsel so selected may not serve as Independent Counsel
unless and until a court has determined that such objection is without merit.
If, within 20 days after submission by the Indemnitee of a written request for
indemnification, no Independent Counsel shall have been selected or if selected,
shall have been objected to, in accordance with this paragraph either the
Corporation or the Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Corporation or the Indemnitee to the
other's selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person as
the court shall designate, and the person with respect to whom an objection is
favorably resolved or the person so appointed shall act as Independent Counsel.
The Corporation shall pay the reasonable fees and expenses of Independent
Counsel incurred in connection with its acting in such capacity. The Corporation
shall pay any and all reasonable and necessary fees and expenses incident to the
procedures of this paragraph, regardless of the manner in which such Independent
Counsel was selected or appointed.
(d) The termination of any Proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Indemnitee did not act in good faith and
in a manner that the Indemnitee reasonably believed to be in, or not opposed to,
the best interests of the Corporation, and, with respect to any criminal
Proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
(e) The Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to the Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to the Indemnitee and reasonably necessary to such determination. Any
Expenses actually and reasonably incurred by the Indemnitee in so cooperating
shall be borne by the Corporation (irrespective of the determination as to the
Indemnitee's entitlement to indemnification) and the Corporation hereby
indemnifies the Indemnitee therefrom.
9. Remedies. The right to indemnification or advancement of Expenses as
provided by this Agreement shall be enforceable by the Indemnitee in any court
of competent jurisdiction if the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within the applicable period referred
to in Section 8. Unless otherwise required by law, the burden of proving that
indemnification is not appropriate shall be on the Corporation. Neither the
failure of the Corporation to have made a determination prior to the
commencement of such action that indemnification is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Corporation that the Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the Indemnitee has not met the applicable standard of conduct. The
Indemnitee's Expenses actually and reasonably incurred in connection with
successfully establishing the Indemnitee's right to indemnification, in whole or
in part, in any such Proceeding shall also be indemnified by the Corporation.
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10. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines, penalties or amounts paid in
settlement actually and reasonably incurred by or on behalf of the Indemnitee in
connection with any Proceeding but not, however, for the total amount thereof,
the Corporation shall nevertheless indemnify the Indemnitee for the portion of
such Expenses, judgments, fines, penalties or amounts paid in settlement to
which the Indemnitee is entitled.
11. Subrogation. In the event of any payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, who shall execute all papers required and
take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to enforce
such rights.
12. Term of Agreement. This Agreement shall continue until and terminate
upon the later of (a) six years after the date that the Indemnitee shall have
ceased to serve as a director or officer of the Corporation or, at the request
of the Corporation, as a director, officer, partner, trustee, member, employee
or agent of another corporation, partnership, joint venture, trust, limited
liability company or other enterprise or (b) the final termination of all
Proceedings pending on the date set forth in clause (a) in respect of which the
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by the Indemnitee pursuant to Section
9 of this Agreement relating thereto.
13. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which the Indemnitee may be entitled under the
Certification of Incorporation, the By-Laws, any other agreement, any vote of
stockholders or disinterested directors, the General Corporation Law of
Delaware, any other law (common or statutory), or otherwise, both as to action
in the Indemnitee's official capacity and as to action in another capacity while
holding office for the Corporation. Nothing contained in this Agreement shall be
deemed to prohibit the Corporation from purchasing and maintaining insurance, at
its expense, to protect itself or the Indemnitee against any expense, liability
or loss incurred by it or the Indemnitee in any such capacity, or arising out of
the Indemnitee's status as such, whether or not the Indemnitee would be
indemnified against such expense, liability or loss under this Agreement.
14. Insurance. If the Indemnitee is a non-employee director of the
Corporation on the date of this Agreement, then until the earlier of (i) six (6)
years after the Indemnitee ceases to serve as a director of the Corporation and
(ii) a Change in Control, the Corporation shall maintain in effect directors'
and officers' liability insurance, with respect to matters existing or occurring
prior to such cessation of service, on such terms as are determined to be
reasonable by the Board of Directors of the Corporation. Such insurance shall
provide for coverage of at least $20 million, provided that the Corporation
shall not be required to pay an annual premium for such insurance in excess of
150% of the annualized premium paid or to be paid by the Corporation for the
directors' and officers' liability insurance policy in effect on the date of
this Agreement (the "Maximum Premium") and if the annual premium for such
insurance exceeds the Maximum Premium, the Corporation shall obtain as much
directors' and officers' liability
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insurance as can be reasonably obtained for an annualized premium not in excess
of the Maximum Premium.
15. No Special Rights. Nothing herein shall confer upon the Indemnitee any
right to continue to serve as an officer or director of the Corporation for any
period of time or at any particular rate of compensation.
16. Savings Clause. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify the Indemnitee as to Expenses,
judgments, fines, penalties and amounts paid in settlement with respect to any
Proceeding to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated and to the fullest extent
permitted by applicable law.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
18. Successors and Assigns. This Agreement shall be binding upon the
Corporation and its successors and assigns and shall inure to the benefit of the
estate, heirs, executors, administrators and personal representatives of the
Indemnitee.
19. Headings. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
20. Modification and Waiver. This Agreement may be amended from time to
time to reflect changes in Delaware law or for other reasons. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall any such waiver constitute a continuing waiver.
21. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (i) when
delivered by hand or (ii) if mailed by certified or registered mail with postage
prepaid, on the third day after the date on which it is so mailed:
(a) if to the Indemnitee, to: ______________________
______________________
(b) if to the Corporation, to: ______________________
______________________
or to such other address as may have been furnished to the Indemnitee by the
Corporation or to the Corporation by the Indemnitee, as the case may be.
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22. Applicable Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware. The Indemnitee
may elect to have the right to indemnification or reimbursement or advancement
of Expenses interpreted on the basis of the applicable law in effect at the time
of the occurrence of the event or events giving rise to the applicable
Proceeding, to the extent permitted by law, or on the basis of the applicable
law in effect at the time such indemnification or reimbursement or advancement
of Expenses is sought. Such election shall be made, by a notice in writing to
the Corporation, at the time indemnification or reimbursement or advancement of
Expenses is sought; provided, however, that if no such notice is given, and if
the General Corporation Law of Delaware is amended, or other Delaware law is
enacted, to permit further indemnification of the directors and officers, then
the Indemnitee shall be indemnified to the fullest extent permitted under the
General Corporation Law, as so amended, or by such other Delaware law, as so
enacted.
23. Enforcement. The Corporation expressly confirms and agrees that it has
entered into this Agreement in order to induce the Indemnitee to continue to
serve as an officer or director of the Corporation, and acknowledges that the
Indemnitee is relying upon this Agreement in continuing in such capacity.
24. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and supercedes
all prior agreements, whether oral or written, by any officer, employee or
representative of any party hereto in respect of the subject matter contained
herein; and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled. For avoidance of
doubt, the parties confirm that the foregoing does not apply to or limit the
Indemnitee's rights under Delaware law or the Corporation's Certificate of
Incorporation or By-Laws.
25. Consent to Suit. In the case of any dispute under or in connection with
this Agreement, the Indemnitee may only bring suit against the Corporation in
the Court of Chancery of the State of Delaware. The Indemnitee hereby consents
to the exclusive jurisdiction and venue of the courts of the State of Delaware,
and the Indemnitee hereby waives any claim the Indemnitee may have at any time
as to forum non conveniens with respect to such venue. The Corporation shall
have the right to institute any legal action arising out of or relating to this
Agreement in any court of competent jurisdiction. Any judgment entered against
either of the parties in any proceeding hereunder may be entered and enforced by
any court of competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AIRVANA, INC.
By:
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Name:
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Title:
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INDEMNITEE:
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