1
EXHIBIT 10.44
FORM OF
INDEMNITY AGREEMENT
This Agreement is dated as of << Effective_Date >>, between Western
Wireless Corporation, a Washington corporation (the "Corporation"), and
<< FirstName >> << LastName >> ("Indemnitee").
W I T N E S S E T H
WHEREAS, it is essential to the Corporation to retain and attract as
directors, officers and key members of management the most capable persons
available;
WHEREAS, the Corporation's Articles of Incorporation (the "Articles")
limit the liability of members of its board of directors and the Corporation's
Bylaws (the "Bylaws") provide for indemnification of directors, officers,
employees and agents of the Company to the fullest extent permitted by the
Washington Business Corporation Act (the "Act");
WHEREAS, the Act is not exclusive in the rights provided, and it
contemplates that agreements may be entered into between the Corporation and the
members of its board of directors, as well as its officers, employees and/or
agents, with respect to indemnification of such directors, officers, employees
and/or agents;
WHEREAS, the Corporation and Indemnitee recognize the substantial
increase in corporate litigation subjecting officers and directors to expensive
litigation risks;
WHEREAS, the Corporation believes that there can be no assurance that
directors' and officers' insurance will be available to the Corporation and
Indemnitee, and believes that it is possible that the cost of such insurance, if
obtainable, may not be acceptable to the Corporation;
WHEREAS, Indemnitee is unwilling to serve, or continue to serve the
Corporation as a director, officer or member of senior management without
indemnification;
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its directors so as to provide them with the maximum
protection permitted by law; and
WHEREAS, as a result of the provision of such benefits Indemnitee has
agreed to serve or to continue to serve as a director, officer or member of
senior management of the Corporation.
NOW, THEREFORE, in consideration of the Indemnitee's continued services
to the Corporation, and notwithstanding the limitations in 23B.08.510 through
23B.08.550 of the Act, the Corporation and Indemnitee hereby agree as follows:
1. Agreement to Serve
Indemnitee agrees to serve or continue to serve as a director, officer
or member of senior management of the Corporation for so long as he or she is
duly elected or appointed or until such time as he or she tenders his or her
resignation in writing.
2. Definitions
As used in this Agreement:
2
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit, alternative dispute resolution mechanism or proceeding,
or any hearing, inquiry or investigation that Indemnitee in good faith believes
might lead to the institution of any such action, suit, alternative dispute
resolution mechanism or proceeding, whether brought by or in the right of the
Corporation or otherwise, and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee is or was a party or is threatened to
be made a party by reason of the fact that Indemnitee is or was a director, or,
if the case should be, officer, employee, agent or fiduciary of the Corporation,
or is or was serving at the request of the Corporation as a director, or, if the
case should be, officer, employee, agent or fiduciary, of another corporation,
partnership, joint venture, trust or other enterprise.
(b) The term "Expenses" shall include, without limitation, any and all
expenses, costs and obligations incurred in connection with investigating,
defending, being a witness to or participating in (including any appeals) or
preparing to defend, to be a witness in or to participate in, any Proceeding,
amounts paid in settlement by or on behalf of Indemnitee, judgments, fines or
penalties against Indemnitee, attorneys' fees and disbursements, and any
expenses of establishing a right to indemnification under Section 7 below, and
any federal, state, local or foreign taxes imposed on the Indemnitee as a result
of the actual or deemed receipt of any payments under this Agreement.
(c) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnitee 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, agent or fiduciary with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interest 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.
(d) For purposes of this Agreement, references to the "Corporation"
shall include, in addition to Western Wireless Corporation, its wholly owned
subsidiaries and controlled subsidiaries and any corporation resulting from,
and, any constituent corporation (including any constituent of a constituent)
absorbed in, a consolidation or merger to which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, employees, agents or fiduciaries so that if Indemnitee is or was a
director, or, if the case should be, officer, employee, agent or fiduciary of
such corporation or is or was serving at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise, Indemnitee shall stand in
the same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation as if its separate existence had continued.
3. Indemnity in Third-Party Proceedings
(a) The Corporation shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by Indemnitee in connection with any Proceeding
other than a Proceeding by or in the right of the Corporation to procure a
judgment in its favor, but only if Indemnitee acted in good faith and in a
manner in which he reasonably believed to be in or not opposed to the best
interests of the Corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe that his conduct was unlawful.
(b) The termination of any such Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee did not act in good
faith in a manner which he reasonably believed to be in or not opposed to the
best
3
interests of the Corporation and, with respect to any criminal proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful.
4
4. Indemnity in Corporation Proceedings
The Corporation shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by Indemnitee in connection with any Proceeding by or in
the right of the Corporation to procure a judgment in its favor, but only if
Indemnitee acted in good faith and in a manner in which he reasonably believed
to be in or not opposed to the best interests of the Corporation; provided,
however, that no indemnification for Expenses shall be made under this Section 4
in respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation in the performance of his duty to the
Corporation and its shareholders, unless and only to the extent that the court
in which such Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for such
Expenses which such court shall deem proper.
5. Indemnification of Expenses of Successful Party
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding, or in defense of any claim, issue or matter therein, Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by
Indemnitee in connection therewith.
6. Advancement of Expenses
(a) At the written request of Indemnitee, the Expenses incurred by
Indemnitee in any Proceeding shall be paid by the Corporation in advance of the
final disposition of such Proceeding. Expense advances may be paid directly to
the vendor, at the election of Indemnitee and, whether paid directly to the
vendor or reimbursed to the Indemnitee, payment of Expenses shall be made no
later than 20 days after such written request of Indemnitee is received by the
Corporation. Payment by the Corporation of Expenses on behalf of the Indemnitee
shall create a presumption that such Expenses are reasonable.
(b) At the request of the Corporation, Indemnitee shall undertake in
writing to repay such amount to the extent that it is ultimately determined that
Indemnitee is not entitled to indemnification. Any written undertaking by the
Indemnitee to repay any advances of Expenses hereunder shall be unsecured and no
interest shall be charged thereon.
(c) If the Corporation makes an advance of Expenses pursuant to this
Section 6, the Corporation shall be subrogated to every right of recovery
Indemnitee may have against any insurance carrier from whom the Corporation has
purchased insurance for such purpose.
(d) To the extent deemed appropriate be the authority making such
determination pursuant to Section 7(a) of this Agreement, interest shall be paid
by the Corporation to the Indemnitee, at a reasonable interest rate, for amounts
actually and reasonably incurred by the Indemnitee for Expenses, provided that
the Indemnitee is otherwise indemnified by the Corporation under this Agreement
for the principal amount paid therefor.
7. Procedure for Indemnification
(a) Any indemnification under Sections 3 or 4, or advance under Section
6, shall be paid by the Corporation as soon as practicable but in any event no
later than 30 days after receipt of the written request of Indemnitee, provided
Indemnitee has met the relevant standards for indemnification set forth in
Sections 3 or 4, as the case may be, as determined either by (i) the Board of
Directors by a majority vote
5
of a quorum consisting of directors who were not parties to the Proceeding in
respect of which indemnification is being sought, or a committee of directors
who were not parties to such Proceeding even though less than a quorum, or (ii)
independent legal counsel in a written opinion (which counsel shall be appointed
by a quorum of the Board of Directors), or (iii) the shareholders of the
Corporation.
(b) The right to indemnification or advancement of Expenses as provided
by this Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction. The burden of proving by clear and convincing evidence that
indemnification or advances are not appropriate shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, a
committee thereof, or independent legal counsel or shareholders) to have made a
determination prior to the commencement of such action that Indemnitee has met
the applicable standard of conduct, nor an actual determination by the
Corporation (including its Board of Directors, a committee thereof, or
independent legal counsel or shareholders) that Indemnitee has not met such
standard, shall be a defense to the action nor create a presumption that
Indemnitee has not met the applicable standard of conduct. In the event that any
action is instituted by Indemnitee under this Agreement to enforce or interpret
any of the terms hereof, Indemnitee shall be entitled to be indemnified for all
Expenses reasonably incurred by Indemnitee with respect to such action
(including without limitation attorneys' fees), regardless of whether Indemnitee
is ultimately successful in such action, unless as a part of such action, a
court having jurisdiction over such action makes a final judicial determination
(as to which all rights of appeal therefrom have been exhausted or lapsed) that
each of the material assertions made by Indemnitee as a basis for such action
was not made in good faith or was frivolous; provided, however, that until such
final judicial determination is made, Indemnitee shall be entitled to receive
payment of advancement of Expenses hereunder with respect to such action.
(c) With respect to any Proceeding for which indemnification is
requested, the Corporation will be entitled to participate therein at its own
expense and, except as provided below, the Corporation may assume the defense
thereof, with counsel satisfactory to Indemnitee. After notice from the
Corporation to Indemnitee of its election to assume the defense of a Proceeding
and retention of such counsel, the Corporation will not be liable to Indemnitee
under this Agreement for any Expenses subsequently incurred by Indemnitee in
connection with the defense thereof, other than as provided below. Indemnitee
shall have the right to employ counsel in any Proceeding but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense of the Proceeding and retention of such counsel shall
be at the expense of Indemnitee, unless (i) the employment of counsel by
Indemnitee has been authorized by the Corporation, (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Corporation and Indemnitee in the conduct of the defense of a Proceeding, or
(iii) the Corporation shall not in fact have employed counsel to assume the
defense of a Proceeding, or shall not have continued to retain such counsel, in
each of which cases the fees and expenses of Indemnitee's counsel shall be
advanced by the Corporation. Notwithstanding the foregoing, the Corporation
shall not be entitled to assume the defense of any Proceeding brought by or in
the right of the Corporation.
(d) The Corporation shall not settle any Proceeding in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent.
(e) If, at the time of the receipt of a notice of a claim by Indemnitee,
the Corporation has policies of D&O Insurance in effect, the Corporation shall
give prompt notice of the commencement of such proceedings to the insurers in
accordance with the procedures set forth in such policies. The Corporation shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policies.
6
8. Limitations on Indemnification
No payment pursuant to this Agreement shall be made by the Corporation:
(a) To indemnify or advance funds to Indemnitee for Expenses with
respect to proceedings initiated or brought voluntarily by Indemnitee and not by
way of defense, except with respect to Proceedings brought to establish or
enforce a right of indemnification under this Agreement, but such
indemnification or advancement of Expenses may be provided by the Corporation in
specific cases if the Board of Directors finds it to be appropriate;
(b) To indemnify Indemnitee for any Expenses, judgments, fines or
penalties sustained in any Proceeding for which payment is actually made to
Indemnitee under valid and collectible D&O Insurance maintained by the
Corporation, except in respect of any excess beyond the amount of payment under
such insurance;
(c) To indemnify Indemnitee for any Expenses, judgments, fines or
penalties sustained in any Proceeding for an accounting of profits made from the
purchase or sales by Indemnitee of securities of the Corporation pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, the rules
and regulations promulgated thereunder and amendments thereto or similar
provisions of any federal, state or local statutory law;
(d) To indemnify Indemnitee for any Expenses, judgments, fines or
penalties resulting from Indemnitee's conduct which is finally adjudged to have
been willful misconduct, knowingly fraudulent or deliberately dishonest; or
(e) If a court of competent jurisdiction finally determines that such
payment hereunder is unlawful.
9. Indemnification Not Exclusive
The indemnification and advancement of Expenses provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may be entitled under the Articles or the Bylaws of the Corporation, any
agreement, any vote of shareholders or disinterested directors, the Act, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. The indemnification provided by this
Agreement shall continue as to Indemnitee even though he may have ceased to be a
director, or, if the case should be, officer, employee, agent or fiduciary, of
the Corporation, or ceased serving at the request of the Corporation as a
director, or, if the case should be, officer, employee, agent or fiduciary, of
another corporation, partnership, joint venture, trust or other enterprise, and
shall inure to the benefit of the heirs and personal representatives of
Indemnitee.
10. Partial Indemnification
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Corporation for a portion but not the total amount of the
Expenses actually and reasonably incurred by him in any Proceeding, the
Corporation shall indemnify Indemnitee for the portion of such Expenses to which
Indemnitee is entitled.
11. Contribution
(a) In the event the indemnity provided for in this Agreement is
unavailable to the Indemnitee for any reason whatsoever, the Corporation, in
lieu of indemnifying the Indemnitee, shall
7
contribute to the amount actually and reasonably incurred by the Indemnitee for
Expenses of a Proceeding in such proportion as deemed fair and reasonable in
light of all of the circumstances of such Proceeding by the appropriate
authority pursuant to Section 7 hereof, or by the court before which such action
was brought, in order to reflect (i) the relative benefits received by the
Corporation and the Indemnitee as a result of the event(s) and/or transaction(s)
giving rise to such Proceeding; and/or (ii) the relative fault of the
Corporation (and its other directors, officers, employees and agents) and the
Indemnitee in connection with such event(s) and/or transaction(s).
(b) The Indemnitee shall not be entitled to contribution from the
Corporation under this Section 11 in the event it is determined pursuant to
Section 7 hereof, or by the court before which the Proceeding was brought, that
with respect to the event(s) and/or transaction(s) giving rise to such
Proceeding the Indemnitee engaged in conduct that was willful misconduct,
knowingly fraudulent or deliberately dishonest.
(c) The Indemnitee's right to contribution under this Section 11 shall
be determined in accordance with, pursuant to and in the same manner as, the
provisions of Section 7 hereof relating to the Indemnitee's right to
indemnification under this Agreement.
12. Witness Expenses
This Agreement shall not in any way limit or affect the Company's power
to pay (in advance or otherwise) or reimburse expenses reasonably incurred by
the Indemnitee in connection with his appearance as a witness in any action at a
time when he has not been formally named a defendant or respondent to such an
action.
13. Maintenance of Liability Insurance
(a) The Corporation hereby covenants and agrees that, as long as
Indemnitee continues to serve as a director, or, if the case should be, officer,
employee, agent or fiduciary, of the Corporation, or is serving at the request
of the Corporation as a director, or, if the case should be, officer, employee,
agent or fiduciary, of another corporation, partnership, joint venture, trust or
other enterprise of the Corporation and thereafter as long as Indemnitee may be
subject to any Proceeding, the Corporation, subject to subsection (c), shall
maintain in full force and effect D&O Insurance in reasonable amounts from
established and reputable insurers.
(b) In all D&O Insurance policies, Indemnitee shall be named as an
insured in such a manner as to provide the Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Corporation's
directors, officers, key employees, agents or fiduciaries.
(c) Notwithstanding the foregoing, the Corporation shall have no
obligation to obtain or maintain the D&O Insurance if the Corporation determined
in good faith that such insurance is not reasonably available, the premium costs
for such insurance are disproportionate to the amount of coverage provided, the
coverage provided by such insurance is so limited by exclusions that it provides
an insufficient benefit, or Indemnitee is covered by similar insurance
maintained by a subsidiary of the Corporation.
14. Limitation of Action and Release of Claims
No action shall be brought and no cause of action shall be asserted by
or in the right of the Company in order to procure a judgement in its favor
against the Indemnitee, his spouse, heirs, executors or administrators after
expiration of two years (or otherwise applicable statute of limitations,
whichever is
8
shorter) from the date the Indemnitee ceases, for any reason whatsoever, to
serve as a director, officer or member of senior management of the Corporation
and any claim or cause of action of the Corporation shall be extinguished and
deemed released unless asserted by the filing of an appropriate action within
such two-year period. The provisions of any federal, state or local law or
statute providing in substance that releases shall not extend to claims,
demands, injuries or damages which are unknown or unsuspected to exist at the
time to the person or entity executing such release are hereby expressly waived
by the Corporation.
15. Severability
Nothing in this Agreement is intended to require or shall be construed
as requiring the Corporation to do or fail to do any act in violation of
applicable law. The Corporation's inability, pursuant to court order, to perform
its obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided for
in this Section 15. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
16. Notice
Indemnitee shall, as a condition precedent to his right to be
indemnified under this Agreement, give to the Corporation notice in writing as
soon as practicable of any Proceeding for which indemnity will or could be
sought under this Agreement. All requests, demands and other communications
under this Agreement shall be in writing and delivered to the appropriate party.
Notice, requests, demands and correspondence to the Corporation shall be
directed to Western Wireless Corporation, 0000 000xx Xxxxxx XX, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel (or such other address as
the Corporation shall designate in writing to Indemnitee). Notice to the
Indemnitee shall be directed to him at Western Wireless Corporation, 0000 000xx
Xxxxxx XX, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (or such other address as
Indemnitee shall designate in writing to the Corporation). Receipt of a notice,
request, demand and correspondence shall be deemed effective three days after
the date postmarked if sent by prepaid mail, properly addressed. In addition,
Indemnitee shall give the Corporation such information and cooperation as it may
reasonably require and as shall be within Indemnitee's power.
17. Counterparts
This Agreement may be executed in any number of counterparts, all of
which shall be deemed to constitute one and the same instrument.
18. Applicable Law
(a) The Agreement shall be governed by, and construed and interpreted in
accordance with, the law of the State of Washington without regard to its
conflicts of laws principles.
(b) Notwithstanding any other provisions of this Agreement, the
Corporation hereby agrees to indemnify the Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Corporation's Amended
and Restated Certificate of Incorporation, the Corporation's Bylaws or by
statute. In the event of any change, after the date of this Agreement, in any
applicable law, statute or rule which expands the right of a Washington
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, such changes shall be deemed to be within the
purview of Indemnitee's
9
rights and the Corporation's obligations under this Agreement. In the event of
any change in any applicable law, statute or rule which narrows the right of a
Washington corporation to indemnify a member of its board of directors or an
officer, employee, agent or fiduciary, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement shall have
no effect on this Agreement or the parties' rights and obligations hereunder.
19. Successors and Assigns
This Agreement shall be binding upon the Corporation and its successors
and assigns. The Corporation shall require and cause any successor (whether
direct or indirect, and whether by purchase, merger, consolidation or otherwise)
to all, substantially all, or a substantial part, of the business or assets of
the Corporation, 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 the Corporation would be required to perform
if no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director, officer,
employee, agent or fiduciary (as applicable) of the Corporation or of any other
enterprise at the Corporation's request.
20. Amendments
No amendment, waiver, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
The indemnification rights afforded to Indemnitee hereby are contract rights and
may not be diminished, eliminated or otherwise affected by amendments to the
Amended and Restated Certificate of Incorporation or Bylaws of the Corporation
or by other agreements.
21. Waivers
No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
22. Integration of Entire Agreement
This Agreement sets forth the entire understanding between the parties
hereto and supercedes and merges all previous written and oral negotiations,
commitments, understandings and agreements relating to the subject matter hereof
between the parties.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
Western Wireless Corporation
By:
-------------------------------
Xxxx X. Xxxxxxx
Chairman
Chief Executive Officer
INDEMNITEE
-----------------------------------
<< FirstName >> << LastName >>
