NextG Networks, Inc. INDEMNIFICATION AGREEMENT
Exhibit 10.1
NextG Networks, Inc.
This Indemnification Agreement (this “Agreement”), dated [ ] (the
“Effective Date”), is entered into by and between NextG Networks, Inc., a Delaware
corporation (the “Company”), and [ ] (the “Indemnitee”). As used in
this Agreement, the term “Party” refers to the Company or the Indemnitee individually, and
the term “Parties” refers to the Company and the Indemnitee collectively.
Recitals
The Company and the Company’s stockholder believe that attracting and retaining the most
capable available directors and officers is essential to the Company’s success.
The Parties expressly recognize the increasing risk of litigation and other claims against
corporate directors and officers.
The Company’s Certificate of Incorporation permits, and the Company’s bylaws require, the
Company to indemnify and advance expenses to Company directors and officers to the fullest extent
permitted under Delaware law, and the Indemnitee has been serving and continues to serve as a
Company director and/or officer in substantial reliance on those Certificate of Incorporation and
bylaws provisions.
In entering into this Agreement, the Company recognizes the Indemnitee’s legitimate need for
(a) substantial protection against personal liability to ensure the Indemnitee’s continued and
effective service to the Company and (b) specific contractual assurances that the protections
promised by the Certificate of Incorporation and bylaws will be available to the Indemnitee,
regardless of, among other things, (i) any Certificate of Incorporation or bylaws amendment or
revocation, (ii) any Board composition changes, and (iii) any acquisition transaction or other
control-change transaction that involves the Company.
With this Agreement, the Company intends (a) to induce the Indemnitee to provide effective
services to the Company as a director and/or officer; (b) to indemnify the Indemnitee; (c) to
advance expenses to Indemnitee; and, (d) to the extent that the Company maintains insurance that
includes the Indemnitee as a covered party, to provide for continued Indemnitee coverage under the
Company’s directors-and-officers liability insurance policies, in each case to the fullest extent
(whether partial or complete) permitted under Delaware law and as provided in this Agreement.
Agreement
In consideration of the premises specified above, and the mutual covenants and agreements
contained in this Agreement, and for other good, valuable, and sufficient consideration that the
Parties expressly acknowledged receiving, the Parties agree as follows:
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1. Certain Definitions. As used in this Agreement, the following terms have the
following meanings:
(a) “Board” means the Company’s board of directors.
(b) “Affiliate” means any corporation or other person or entity that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is under common
control with, the person or entity specified.
(c) “Charter Documents” means the Company’s Certificate of Incorporation and the
Company’s bylaws.
(d) “Control Change” means any of the following have occurred:
(i) any “person” (as that term is used in Exchange Act Sections 13(d) and 14(d)) is or becomes
the direct or indirect “beneficial owner” (as defined in Exchange Act Rule 13d-3) of Company
securities that represent 50% or more of the total voting power represented by the Company’s
then-outstanding Voting Securities; provided that (A) any person or entity who is a trustee or
other fiduciary holding securities under a Company employee benefit will not qualify as a “person”
for this definition’s purposes and (B) a corporation that is owned directly or indirectly by the
Company’s stockholders in substantially the same proportions as the Company stockholders’ Company
stock ownership will not qualify as a “person” for this definition’s purposes; or
(ii) during any consecutive two-year time period, a Board majority is no longer constituted,
for any reason, by (A) the directors who were in office at the beginning of such two-year time
period and (B) any new directors whose election by the Board or nomination for election by the
Company’s stockholders was approved by an affirmative vote of at least two-thirds of the directors
then still in office who either were directors at the beginning of such two-year time period or
whose election or nomination for election was previously so approved in the manner described by
this Section 1(c)(ii)(B); or
(iii) the Company stockholders approve a merger or consolidation of the Company with any other
entity, other than a merger or consolidation that would result in the Voting Securities outstanding
immediately before such transaction continuing to represent after such transaction, either by
remaining outstanding or by being converted into surviving entity voting securities, at least 80%
of the Company’s total voting power or of such surviving entity’s voting power outstanding
immediately after such transaction; or
(iv) the Company stockholders approve a complete Company liquidation plan or a Company sale or
disposition (in one transaction or a series of transactions) of all or substantially all of the
Company’s assets.
(e) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and all
corresponding rules and regulations.
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(f) “Expenses” means any expense, liability, or loss, including attorneys’ fees;
expert witness fees; trial costs; judgments; fines; taxes (including ERISA excise taxes); penalties
(including ERISA penalties); settlement amounts paid or incurred; settlement amounts to be paid or
incurred; interest charges; assessments; other charges; any federal, state, local, or foreign taxes
imposed because of any actual or deemed receipt of any payments under this Agreement; and all other
costs and obligations, in each case paid or incurred in connection with preparing to investigate,
investigating, preparing to defend against, defending against, preparing to be a witness in, being
a witness in, preparing to participate in (including appeal), and participating in (including on
appeal) any Proceeding relating to, arising out of, or based upon any Indemnifiable Event.
(g) “Indemnifiable Event” means any fact, condition, event, or occurrence that happens
or exists before, on, or after the Effective Date and that relates to, arises out of, or is based
upon the fact that (i) the Indemnitee is or was a Company director, officer, employee, attorney, or
agent, or, (ii) while a Company director, officer, employee, attorney, or agent, the Indemnitee is
or was serving at the Company’s request as a director, officer, employee, trustee, agent, attorney,
or fiduciary of any Company subsidiary or of any other foreign or domestic corporation,
partnership, joint venture, employee benefit plan, trust, or other enterprise, or (iii) the
Indemnitee was a director, officer, employee, attorney, or agent of a foreign or domestic
corporation that was a predecessor corporation of the Company or of another enterprise at the
request of such predecessor corporation, or (iv) the Indemnitee did anything or did not do anything
in any of the foregoing capacities, whether or not the Proceeding’s basis is alleged action or
non-action in an official capacity as a director, officer, employee, attorney, or agent or in any
other capacity while serving as a Company director, officer, employee, attorney, or agent, in each
case as described above.
(h) “Independent Counsel” means an attorney or a law firm that (i) is selected by the
Indemnitee and approved by the Company (which approval will not be unreasonably withheld,
conditioned, or delayed); (ii) has not otherwise performed services for the Company or the
Indemnitee during the immediately preceding three years (other than with respect to matters
concerning the Indemnitee’s rights or other indemnitee rights or indemnification rights under this
Agreement, any other agreement, any other instrument, any Charter Document, or applicable law); and
(iii) would not have, under the then prevailing applicable professional conduct standards, a
conflict of interest in representing either the Company or the Indemnitee in an action to determine
the Indemnitee’s rights under this Agreement.
(i) “Proceeding” means any threatened, pending, or completed claim, action, suit,
proceeding, or alternative dispute resolution mechanism (including an action by the Company or in
the right of the Company), or any inquiry, hearing, or investigation that Indemnitee in good faith
believes might lead to the institution of any such action, suit, proceeding, or alternative dispute
resolution mechanism, in each case whether formal, informal, civil, criminal, administrative,
investigative, or other, and in each case whether initiated, filed, maintained, or conducted by the
Company or any other party.
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(j) “Reviewing Party” means, as of any particular time, (i) Independent Counsel, if
such time is after any Control Change, and, (ii) if such time is before any Control Change, any one
or more Board-designated persons, any of whom may be a Company director, but none of whom may be a
party to the particular Proceeding for which the Indemnitee is seeking indemnification.
(k) “Voting Securities” means any Company securities that vote generally in director
elections.
(a) General Agreement. If the Indemnitee was, is, or becomes a party to, a witness
in, or an other participant in, or is threatened to be made a party to, a witness in, or an other
participant in, a Proceeding because of (or arising in part out of) an Indemnifiable Event, then
the Company will indemnify Indemnitee from and against any and all Expenses to the fullest extent
permitted by law, as the law now exists or may be amended or interpreted after the Effective Date
(but, in the case of any such amendment or interpretation, only to the extent that such amendment
or interpretation permits the Company to provide greater indemnification rights than those
permitted before such amendment or interpretation). The Parties expressly intend that this
Agreement will provide for indemnification in excess of any indemnification expressly permitted by
statute, including in excess of any indemnification provided by any other agreement or instrument
between the Parties, any Charter Document, any stockholder vote, any disinterested director vote,
or applicable law.
(b) Indemnification Limitations. The only limitation that will exist upon the
Company’s indemnification obligations under this Section 2 are those specified in this Section 2(b)
and in Section 2(g). The Company will not be obligated to make any payment to the Indemnitee if
such payment is finally determined to be unlawful by a court of competent jurisdiction in a final
judgment that is not subject to appeal. The Indemnitee will not be entitled to indemnification
under this Agreement in connection with any Proceeding that the Indemnitee initiated against the
Company or any Company director, officer, employee, attorney, or agent, unless (i) the Company has
joined in, or the Board has specifically consented to, such Proceeding’s initiation; (ii) the
Proceeding is to enforce indemnification rights under Section 5 or to otherwise enforce this
Agreement or any Agreement provisions; or (iii) the Proceeding is instituted after a Control Change
(other than a Control Change approved by a majority of the Company directors who were Company
directors immediately before such Control Change) and the Reviewing Party has approved such
Proceeding’s initiation.
(c) Contribution and Allocation. Nothing in this Section 2(c) diminishes, restricts,
limits, or impairs in any manner otherwise-existing Company obligations to fully indemnify the
Indemnitee, to pay all Expenses, or to provide the Indemnitee with Expense Advances, including
those obligations that otherwise exist under this Agreement, under any other agreement or
instrument, under any Charter Document, or under applicable law.
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(i) Generally. If, for any reason, the Indemnitee elects to pay or incur, or is
required to pay or incur, all or any portion of any judgment, settlement, or other Expenses in any
Proceeding in which Company is jointly liable with the Indemnitee (or would be jointly liable with
the Indemnitee if joined in such Proceeding), then the Company will contribute to the amount of
Expenses that the Indemnitee paid or incurred in proportion to the relative benefits received by
the Company and all Company directors, officers, employees, or agents other than the Indemnitee who
are jointly liable with the Indemnitee (or would be jointly liable with the Indemnitee if joined in
such Proceeding), on the one hand, and the Indemnitee, on the other hand, from the transaction from
which such Proceeding arose. However, to the extent necessary to conform to applicable law, the
proportion determined on the basis of relative benefit may be further adjusted by reference to the
relative fault of Company and all Company directors, officers, employees, or agents other than the
Indemnitee who are jointly liable with the Indemnitee (or would be jointly liable with the
Indemnitee if joined in such Proceeding), on the one hand, and the Indemnitee, on the other hand,
in connection with the events that resulted in such Expenses, as well as any other equitable
considerations that the law may require to be considered. If such relative-fault considerations
are required by applicable law, then the relative fault of Company and all Company directors,
officers, employees, or agents other than Indemnitee who are jointly liable with the Indemnitee (or
would be jointly liable with the Indemnitee if joined in such Proceeding), on the one hand, and the
Indemnitee, on the other hand, will be determined by reference to, among other things, the degree
to which their respective actions were motivated by intent to gain personal profit or advantage,
the degree to which their respective liability is primary or secondary, and the degree to which
their respective conduct is active or passive.
(ii) Securities Registration. In connection with any Company securities registration,
the Indemnitee will not, under any circumstances, be required to contribute any amount under this
Section 2(c) in excess of the lesser of (A) that proportion of the total of Expenses indemnified
against equal to the proportion of the total securities sold under such registration statement
compared to those securities that the Indemnitee sold in such registration statement or (B) the
proceeds that the Indemnitee received from the Indemnitee’s sale of securities under such
registration statement.
(iii) Contribution. The Company will fully indemnify and hold harmless the Indemnitee
from any contribution claims that may be brought by Company directors, officers, employees,
attorneys, or agents other than Indemnitee who are jointly liable with the Indemnitee (or would be
jointly liable with the Indemnitee if joined in such Proceeding).
(iv) Initial Payment. Whether or not any indemnification provided under this
Agreement is available, in respect of any Proceeding in which the Company is jointly liable with
the Indemnitee (or would be jointly liable with the Indemnitee if joined in such Proceeding), the
Company will pay, in the first instance, the entire amount of any judgment, settlement, or other
Expenses of such Proceeding without requiring the Indemnitee to contribute to such Expense payment,
and the Company irrevocably waives and relinquishes any contribution right that the Company may
have against the Indemnitee.
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(d) Expense Advances. If the Indemnitee requests, the Company will advance, within 10
business days after such request, any and all Expenses that the Indemnitee pays or incurs by paying
such Expenses on the Indemnitee’s behalf, by advancing to the Indemnitee funds in an amount
sufficient to pay such Expenses, and/or by reimbursing the Indemnitee for such expenses (each, an
“Expense Advance”). By signing and delivering this Agreement, (i) the Indemnitee will
qualify for such Expense Advances and (ii) the Indemnitee covenants to repay any such Expense
Advances if and to the extent that a court of competent jurisdiction ultimately determines in a
final judgment, not subject to appeal, that the Indemnitee is not entitled to receive Company
indemnification with respect to such Expense Advances. Until any such court makes such a final
determination, not subject to appeal, that the Indemnitee is not entitled to such indemnification,
the Indemnitee will not be required to repay such Expense Advances to the Company, and the
Indemnitee will continue to receive Expense Advances under this Section 2(d). The Indemnitee’s
reimbursement obligation to the Company for Expense Advances will be unsecured and no interest will
be charged on such reimbursement obligation. To the extent permissible under third-party policies
or agreements, invoices for Expense Advances will be billed in the Company’s name and will be
payable directly by the Company. For purposes of any Expense Advance for which the Indemnitee has
requested payment under this Agreement, all Expenses included in such Expense Advance will be
conclusively presumed to be reasonable if the Indemnitee’s counsel certifies that such Expenses are
reasonable.
(e) Mandatory Indemnification. Notwithstanding any other Agreement provision, to the
extent that the Indemnitee has been successful on the merits or otherwise in defending any
Proceeding relating in whole or in part to an Indemnifiable Event, or in defending any issue or
matter in such Proceeding, the Indemnitee will be indemnified against all Expenses actually and
reasonably paid or incurred in connection with the entire Proceeding.
(f) Partial Indemnification. If the Indemnitee is entitled under any Agreement
provision to Company-provided indemnification for only a portion of Expenses, but not for all
Expenses, then the Company will still indemnify the Indemnitee for the portion of Expenses to which
Indemnitee is entitled. Attorneys’ fees and expenses will not be prorated but will be deemed to
apply to the indemnification portion to which Indemnitee is entitled.
(g) Prohibited Indemnification. Under this Agreement, the Company will not pay any
indemnification for any Proceeding in which judgment is rendered against the Indemnitee for an
accounting of profits made from the Indemnitee’s purchase or sale of Company securities under
Exchange Act Section 16(b), or similar provisions of any federal, state, or local laws; provided
that, notwithstanding any limitation specified in this Section 2(g) regarding the Company’s
indemnification obligation to the Indemnitee, the Indemnitee will be entitled under Section 2(d) to
receive Expense Advances with respect to any such Proceeding, unless and until a court with
jurisdiction over the Proceeding will have made a final judicial determination (as to which all
appeal rights have been exhausted or lapsed) that the Indemnitee has violated such statute.
(h) No Knowledge Imputation. For all purposes under this Agreement and all other
Company indemnification obligations and Expense Advance obligations under any
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other document, instrument, Charter Document provision, or law, the knowledge, beliefs,
actions, omissions, and/or failures of the Company or of any Company director, officer, employee,
agent, or attorney will not alone be imputed to the Indemnitee under any circumstances.
3. Reviewing Party. To the extent of any disagreement between the Parties, the
Reviewing Party will make the initial determination about the Indemnitee’s rights to
indemnification payments under this Agreement, under any other agreement or instrument, under
applicable law, or under any Charter Document, in each case as in effect before, on, or after the
Effective Date, relating to indemnification for Indemnifiable Events. Among other things, if the
Reviewing Party is Independent Counsel, then the Reviewing Party will render a written opinion to
the Company and the Indemnitee about whether and to what extent the Indemnitee can be indemnified
under applicable law. In all cases, the Company will pay the Independent Counsel’s reasonable
fees, costs, and expenses, and the Company will fully indemnify the Independent Counsel against any
and all expenses (including attorneys’ fees), claims, liabilities, loss, and damages arising out of
or relating to this Agreement or the Independent Counsel’s engagement under this Agreement.
4. Indemnification Process and Appeal.
(a) Indemnification Payment. The Indemnitee will be entitled to indemnification
against Expenses, and the Indemnitee will receive from the Company the corresponding
indemnification payments according to this Agreement as soon as practicable after the Indemnitee
has given the Company a written indemnification demand, unless the Reviewing Party has given the
Company a written opinion that the Indemnitee is not entitled to indemnification under Delaware
General Corporation Law Section 145.
(b) Rights Enforcement Actions. Regardless of any Reviewing Party action, if the
Indemnitee has not received full indemnification within 30 days after making a written
indemnification demand as provided in Section 4(a), then the Indemnitee may enforce the
Indemnitee’s indemnification rights under this Agreement by initiating litigation in the Delaware
Chancery Court seeking an initial determination by the court or challenging all or any part of any
Reviewing Party determination. By signing and delivering this Agreement, the Company expressly and
irrevocably consents to service of process and to appear in any such proceeding. Any Reviewing
Party determination that the Indemnitee does not challenge will be binding on the Company and the
Indemnitee, but such Reviewing Party determination will be binding on the Indemnitee only if the
Indemnitee does not challenge such Reviewing Party determination within one year after the
Indemnitee receives written notice of such Reviewing Party determination. The Indemnitee remedies
described in this Section 4 will be in addition to any other remedies that are available to the
Indemnitee under any other agreement, instrument, Charter Document, and any applicable law, rule,
regulation (whether at law or in equity). In any judicial proceeding that the Indemnitee initiates
under this Section 4(b), the Company will be precluded from asserting that this Agreement or any of
this Agreement’s provisions, procedures, presumptions, burdens of proof, burdens of persuasion, and
other standards are not valid, binding, effective, and/or enforceable, and the Company also will
stipulate unconditionally and without qualification that the Company is bound by this Agreement and
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all of this Agreement’s provisions, procedures, presumptions, burdens of proof, burdens of
persuasion, and other standards.
(c) Indemnification Defense, Burden of Proof, and Presumptions.
(i) Applicable Law Defense. In any action brought by the Indemnitee against the
Company to enforce this Agreement, other than an action brought to enforce a claim for Expenses
paid or incurred in defending a Proceeding in advance of the Proceeding’s final disposition, the
Company may maintain the defense that applicable law prohibits the Company from indemnifying the
Indemnitee for the amount claimed.
(ii) Burden of Proof. In connection with any action arising out of this Agreement or
any other agreement, instrument, Charter Document, or applicable law relating to the Indemnitee’s
right to indemnification, including any action relating to any Reviewing Party determination that
the Indemnitee is or is not entitled to indemnification under this Agreement, the Company will have
the burden of proving, and the burden of persuasion with respect to, all elements of all defenses
against indemnification or determinations against indemnification by clear and convincing evidence.
(iii) De Novo Trial. If the Indemnitee initiates legal proceedings to secure a
judicial determination that the Indemnitee should be indemnified under this Agreement, under any
other agreement or instrument between the Parties, under any Charter Document, or under applicable
law, then the Parties expressly intend and agree that the question of the Indemnitee’s
indemnification rights will be for the court to decide as a de novo trial on the merits, and the
Indemnitee will not be prejudiced in any way because of any previous determination by the Reviewing
Party or by any other person or entity.
(iv) Certain Determinations. In any action arising out of this Agreement or any other
agreement, instrument, Charter Document, or applicable law relating to the Indemnitee’s right to
indemnification, the Company will not have available as a defense, and will not assert as a
defense, that, (A) before such action’s initiation, the Reviewing Party or the Company (including
the Board, any independent legal counsel, or the Company’s stockholders) failed to make a
determination (for any reason) that indemnification is proper under the circumstances because the
Indemnitee has met the conduct standard established by applicable law or, (B) at any time, the
Reviewing Party or the Company (including the Board, any independent legal counsel, or the
Company’s stockholders) made an actual determination that the Indemnitee had not met such
applicable conduct standard. The Company expressly and irrevocably waives any such defense that
may have otherwise been available to the Company. In addition, none of the foregoing will create
any presumption that the Indemnitee has not met the legally-applicable conduct standard.
(v) Claim Terminations. For purposes of this Agreement and of any other agreement,
instrument, Charter Document, or applicable law relating to the Indemnitee’s right to
indemnification, any Proceeding’s termination, by judgment, order, settlement (whether with or
without court approval), conviction, no-contest plea (or any equivalent), or otherwise, will not
create any presumption that the Indemnitee did not meet any
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particular conduct standard, that the Indemnitee did not have any particular belief, or that a
court has determined that indemnification is not permitted by applicable law.
(vi) Good Faith Presumption. For purposes of any good-faith determinations that may
be legally required in connection with this Agreement, the Indemnitee will be deemed to have acted
in good faith if the Indemnitee’s action or omission is or was based on the Company’s account
records or account books (including financial statements), or on information that the Company’s
officers, the Company’s legal counsel, the Board’s legal counsel, or any Board committee’s legal
counsel supplied to the Indemnitee in the course of their respective duties, or on information or
records given or reports made to the Company by an independent certified public accountant,
appraiser, investment banker, compensation consultant, or other expert who was selected with
reasonable care by the Company, the Board, or any Board committee. This Section 4(c)(vi) will not
be exclusive and will not diminish, restrict, limit, or impair in any manner the other
circumstances in which the Indemnitee may be deemed to have satisfied any applicable conduct
standards. Whether or not these Section 4(c)(vi) standards are satisfied, in any event, the
Indemnitee will be presumed to have at all times (A) acted in good faith, (B) acted in a manner
that such Indemnitee reasonably believed to be in or not opposed to the Company’s best interests,
and, (C) with respect to any criminal Proceeding, acted with reasonable cause to believe that the
Indemnitee’s conduct was not unlawful. Any such presumption may not be overcome in the absence of
clear and convincing contrary evidence for which the person or entity seeking to overcome such
presumption will carry the burden of proof and the burden of persuasion as to all applicable
elements.
(d) Indemnification Presumption. To the maximum extent permitted by applicable law in
making a determination about indemnification entitlement or Expense Advancement under this
Agreement or under any other agreement, instrument, Charter Document, or applicable law relating to
the Indemnitee’s right to indemnification, the Reviewing Party will presume that the Indemnitee is
entitled to indemnification or Expense Advancement under this Agreement and under such other
agreement, instrument, Charter Document, or applicable law if the Indemnitee has submitted an
indemnification request under Section 4(a). To make any determination contrary to that
presumption, the Reviewing Party will have the burden of proof and the burden of persuasion to
overcome that presumption by clear and convincing evidence.
(e) Settlements. The Company expressly acknowledges that a settlement or other
disposition before final judgment may be successful if such settlement or other disposition permits
a party to avoid expense, delay, distraction, disruption, and/or uncertainty. If any Proceeding to
which the Indemnitee is a party is resolved in any manner other than by adverse judgment against
the Indemnitee (including such Proceeding’s settlement with or without payment of money or other
consideration), then such resolution will create a presumption that the Indemnitee has been
successful on the merits or otherwise in such Proceeding, and such presumption can be overcome only
by clear and convincing contrary evidence. Any person seeking to overcome this presumption will
have the burden of proof and the burden of persuasion on all applicable legal elements, in each
case by clear and convincing evidence.
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5. Rights Enforcement Expenses. Without limiting any other Company obligations under
this Agreement or under any other agreement, instrument, Charter Document, or applicable law, the
Company will indemnify Indemnitee against any and all Expenses that the Indemnitee pays or incurs
in connection with any action that the Indemnitee brings for (a) indemnification or advance Expense
payment by the Company under this Agreement, under any other agreement, instrument, under any
Charter Document, and/or under applicable law, in each case as in effect on or after the Effective
Date relating to indemnification for Indemnifiable Events; and/or (b) recovery under
directors-and-officers liability insurance policies that the Company maintained or maintains. In
addition, if the Indemnitee requests, the Company will advance the foregoing Expenses to the
Indemnitee, subject to and in accordance with Section 2(d). The Company’s obligations under this
Section 5 will exist and continue, regardless of whether the Indemnitee is ultimately successful in
such action, unless, as part of such action, a court of competent jurisdiction over such action
determines in a final judgment (as to which all appellate rights have been exhausted or expired)
that each material Indemnitee assertion that forms the basis of such action was frivolous and not
made in good faith.
6. Notification and Proceeding Defense.
(a) Notice. If the Indemnitee receives notice that a Proceeding has been initiated
and if the Indemnitee will make any corresponding claim against the Company under this Agreement,
then the Indemnitee will promptly notify the Company that such Proceeding has been initiated.
However, in any event, the Indemnitee’s failure to notify the Company for any reason will not
relieve the Company of any liability that the Company may have to the Indemnitee, except as
provided in Section 6(c).
(b) Defense. If the Indemnitee notifies the Company that any Proceeding has been
initiated, then the Company will have the right (but not the obligation) to participate in the
Proceeding at the Company’s own expense or to assume the Proceeding’s defense with counsel that is
reasonably satisfactory to the Indemnitee. If the Company gives the Indemnitee written notice that
the Company elects to assume any Proceeding’s defense, then, after the Indemnitee receives such
written notice, the Company will not be liable to the Indemnitee under this Agreement or otherwise
for any Expenses that the Indemnitee subsequently paid or incurred in connection with such
Proceeding’s defense, other than reasonable investigation costs, transition costs associated with
the Company’s defense assumption, or as otherwise provided below. If the Company properly assumes
the Proceeding’s defense, then the Indemnitee will have the right (but not the obligation) to
employ separate legal counsel in such Proceeding, but all Expenses related to such separate legal
counsel that the Indemnitee paid or incurred after receiving the Company’s written
defense-assumption notice will be at the Indemnitee’s expense, unless: (i) the Company authorizes
the Indemnitee to employ separate legal counsel; (ii) the Indemnitee has reasonably determined
that, in defending the Proceeding, a conflict of interest may exist between Indemnitee and the
Company; (iii) after a Control Change, Independent Counsel has approved the Indemnitee’s employment
of separate legal counsel; or (iv) the Company does not in fact employ legal counsel to assume such
Proceeding’s defense, in which cases the Company will pay all Expenses, including those that the
Indemnitee pays or incurs for such separate legal counsel. Notwithstanding the foregoing, the
Company will not be entitled to assume the defense of any
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Proceeding that is brought by or on behalf of the Company or any Proceeding under the
circumstances described in Section 6(b)(ii), Section 6(b)(iii), or Section 6(b)(iv).
(c) Settlement. The Company will not be liable to indemnify the Indemnitee under this
Agreement or otherwise for any Proceeding settlement amounts paid or incurred without the Company’s
written consent, which will not be unreasonably withheld, conditioned, or delayed; provided that,
after a Control Change (other than a Control Change approved by a majority of the Company directors
who were Company directors immediately before such Control Change), the Company will be liable to
indemnify the Indemnitee for settlement amounts paid or incurred if the Reviewing Party has
approved the settlement. Without the Indemnitee’s prior written consent, the Company will not
settle any Proceeding in any manner that would impose on the Indemnitee any penalty, any
limitation, or any obligation to take or not take any action, or that would expose the Indemnitee
to any criminal, regulatory, civil, or other liability, or that does not contain a full,
unqualified, and final release of all claims against the Indemnitee, or that would require the
Indemnitee to admit liability or misconduct. If the Company receives an offer to settle any
Proceeding, or if the Company intends to make any offer to settle any Proceeding, then the Company
will promptly notify the Indemnitee, and the Company also will give the Indemnitee as much time as
reasonably practicable to consider such offer; provided that the Indemnitee will not, under any
circumstances, have less than three business days to consider such offer. The Company will not be
liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the
Company was not given a reasonable and timely opportunity, at the Company’s expense, to participate
in defending the Proceeding; provided that the Company’s liability under this Agreement will not be
excused if this Agreement precludes the Company’s participation in the Proceeding.
7. Trust Establishment. Upon the Indemnitee’s written request after a Control Change,
the Company will create a trust for the Indemnitee’s benefit (the “Trust”). From time to
time upon the Indemnitee’s written request, the Company will fund the Trust in an amount sufficient
to satisfy any and all Expenses that are reasonably anticipated to be paid or incurred, at the time
of each such request, in connection with investigating, preparing for, participating in, and/or
defending any Proceeding relating to an Indemnifiable Event. The Reviewing Party will determine
the amount or amounts that will be deposited in the Trust under the foregoing funding obligation.
The Trust terms will provide that (a) the Trust will not be revoked and the Trust principal will
not be invaded without the Indemnitee’s written consent; (b) the Trust’s trustee (the
“Trustee”) will advance, within 10 business days after the Indemnitee’s written request,
any and all Expenses to the Indemnitee (but the Indemnitee agrees to reimburse the Trust under the
same circumstances under which the Indemnitee would be required to reimburse the Company under
Section 2(d)); (c) the Company will continue to fund the Trust according to the funding obligation
described above; (d) the Trustee will promptly pay to the Indemnitee all amounts for which the
Indemnitee will be entitled to indemnification under this Agreement or otherwise; and (e) all
unexpended funds in the Trust will revert to the Company upon a final determination by the
Reviewing Party or a court of competent jurisdiction, as the case may be, that the Indemnitee has
been fully indemnified under this Agreement’s terms. The Indemnitee will be entitled to choose the
Trustee. Nothing in this Section 7 will relieve the Company of any of the Company’s obligations
under this Agreement, under any other agreement or instrument, under any Charter Document, or under
applicable law. For federal, state, local, and foreign tax purposes, the
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Company will report as Company income all income earned on the Trust assets. The Company will
pay all costs of establishing and maintaining the Trust, and the Company will indemnify the Trustee
against any and all expenses (including attorneys’ fees), claims, liabilities, loss, and damages
arising out of or relating to this Agreement or the Trust’s establishment and maintenance.
8. Non-Exclusivity. The Indemnitee’s rights under this Agreement will be in addition
to any other rights that the Indemnitee may have under any other agreements or instruments, under
any Charter Document, under applicable law, or otherwise; provided that this Agreement will
supersede any prior indemnification agreement between the Company and the Indemnitee. To the
extent that any change in applicable law (whether by statute or judicial decision) permits greater
indemnification than the indemnification that would be permitted currently under this Agreement,
under any other agreement or instrument, under any Charter Document, or under applicable law, the
Parties expressly intend, acknowledge, and agree that the Indemnitee will receive under this
Agreement the greater benefits permitted by such change, in each case without any further action by
any Party or by any other person or entity. Notwithstanding anything in this Agreement to the
contrary, if any change in applicable law (whether by statute or judicial decision) eliminates or
restricts the indemnification that otherwise would be permitted under this Agreement, under any
other agreement, under any other instrument, under any Charter Document, or under any previously
existing applicable law, the Parties expressly intend, acknowledge, and agree that the Indemnitee
will receive the greater benefits that had been permitted before such change under this Agreement,
under any other agreement or instrument, under any Charter Document, or under any previously
existing applicable law, in each case without any further action by any Party or by any other
person or entity.
9. Liability Insurance.
(a) Company Obligation. Subject to Section 9(b), while the Indemnitee continues to
serve as a Company agent and for so long thereafter as the Indemnitee may be subject to any
possible Proceeding relating to an Indemnifiable Event, the Company will use reasonable efforts to
obtain and maintain in full force and effect directors-and-officers liability insurance (the
“Insurance”) in reasonable amounts from established and reputable insurers, and the
Indemnitee will be a covered party under the Insurance to the maximum extent of the coverage
available for any Company director or officer.
(b) Exception. Notwithstanding Section 9(a), the Company will have no obligation to
obtain or maintain Insurance if the Company determines in good faith that such the Insurance is not
reasonably available, the premium costs for the Insurance are disproportionate to the amount of
coverage provided, or the coverage is reduced by exclusions so as to provide an insufficient
benefit.
10. Limitations Period. With respect to any Agreement provisions or any
indemnification-related provisions under any other agreement, instrument, Charter Document, or
applicable law, no legal action or claim will be brought, and no cause of action will be asserted,
by or on behalf of the Company or any Company Affiliate against the Indemnitee, or against the
Indemnitee’s spouse, heirs, executors, personal representatives, or legal representatives after the
first anniversary of the date on which such action, claim, or cause of action
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accrued, or such longer time period required by state law under the circumstances. Any such
Company or Company Affiliate action, claim, or cause of action will be permanently and fully
extinguished, and will be deemed permanently and fully released, unless asserted by the timely
filing and notice of a legal action within such time period; provided that, if any shorter
statute-of-limitations time period is otherwise applicable to any such action, claim, or cause of
action, then such shorter time period will govern.
11. Agreement Amendments. No Agreement supplement, modification, or amendment will be
binding, unless such Agreement supplement, modification, or amendment is mutually executed in
writing and delivered by both Parties. No waiver of any of this Agreement’s provisions will be
binding, unless such waiver is contained in a written instrument that is signed by the Party
against whom the waiver enforcement is sought, and no such waiver will operate as a waiver of any
other Agreement provisions or of any provisions under any other agreement, instrument, Charter
Document, or applicable law (in each case, whether or not similar), nor will such waiver constitute
a continuing waiver. Except as specifically provided in this Agreement, no failure to exercise,
and no any delay in exercising, any right or remedy under this Agreement will constitute a waiver
of such right or remedy.
12. Subrogation. With respect to and to the extent of any payment under this
Agreement, the Company will be subrogated to all of the Indemnitee’s recovery rights, and the
Indemnitee will execute all papers required and will do everything that may be reasonably necessary
to secure such rights, including executing such documents that are reasonably necessary to enable
the Company effectively to bring suit to enforce such rights.
13. Specific Performance. The Company and the Indemnitee expressly acknowledge and
agree that a monetary remedy for any Agreement breach may be inadequate, impracticable, and
difficult to prove, and that any Agreement breach may cause the Indemnitee irreparable harm.
Accordingly, the Parties agree that the Indemnitee may enforce this Agreement by seeking injunctive
relief and/or specific performance (including temporary restraining orders, preliminary
injunctions, and permanent injunctions), without posting any bond, any other security, or any other
undertaking (other than as required by Section 2(d) and Section 7), and without showing actual
damage or irreparable harm. By seeking injunctive relief and/or specific performance, the
Indemnitee will not be precluded from seeking or obtaining any other relief to which the Indemnitee
may be entitled. The Company expressly acknowledges and agrees that, in the absence of a Company
waiver, the court may require the Indemnitee to pay a bond, another security, or another
undertaking in connection with the Indemnitee’s petition or action for injunctive relief and/or
specific performance, and the Company irrevocably waives any bond, other security, or other
undertaking requirement.
14. No Duplicate Payments. The Company will not be liable under this Agreement to
make any payment in connection with any claim made against Indemnitee to the extent that the
Indemnitee has otherwise actually received payment (under any insurance policy, under any Charter
Document, or otherwise) of the amounts otherwise indemnifiable under this Agreement.
15. Binding Effect. This Agreement constitutes the Parties’ entire agreement with
respect to this Agreement’s subject matter, and this Agreement supersedes all prior
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agreements and understandings, oral, written and implied, between the Parties with respect to
this Agreement’s subject matter. This Agreement will be binding upon, and will inure to the
benefit of, and will be enforceable by, the Parties and their respective successors (including any
direct or indirect successor by purchase, merger, consolidation, or otherwise to all or
substantially all of the Company’s business and/or assets), assigns, spouses, heirs, personal
representatives, and legal representatives. The Company will require and cause any successor
(whether direct or indirect by purchase, merger, consolidation, or otherwise) to all, substantially
all, or a substantial part of the Company’s business and/or assets, by written agreement in form
and substance satisfactory to the Indemnitee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be required to perform
if no such succession had occurred. The indemnification provided under this Agreement will
continue as to the Indemnitee for any action taken or not taken while serving in an indemnified
capacity pertaining to an Indemnifiable Event, even though the Indemnitee may have stopped serving
in such capacity at the time of any Proceeding.
16. Severability. If any Agreement provision or portion becomes, or is declared by a
court of competent jurisdiction to be, illegal, unenforceable, or void, then this Agreement’s
remaining provisions will continue in full force and effect without such illegal, unenforceable, or
void provision. In any such case, the Parties agree to promptly negotiate, in good faith, a legal,
enforceable, and valid substitute provision that most closely implements the Parties’ original
intent in entering into this Agreement, as such original intent is expressed in this Agreement’s
original terms. If the Parties are unable to agree on any such substitute provision, then the
Parties expressly and irrevocably authorize a court of competent jurisdiction to determine, and
expressly and irrevocably agree to be bound by, the legal, enforceable, and valid substitute
provision that most closely implements the Parties’ intent in entering into this Agreement, as
determined by such court.
17. Governing Law. This Agreement will be governed by and construed and enforced in
accordance with Delaware laws that are applicable to contracts made and to be performed entirely in
Delaware without giving effect to any conflict-of-laws principles.
18. Jurisdiction Consent. The Company and the Indemnitee irrevocably (a) agree that
any action or proceeding arising out of or in connection with this Agreement will be brought only
in the Delaware Chancery Court (the “Chancery Court”); (b) consent to submit to the
Chancery Court’s exclusive jurisdiction for purposes of any action or proceeding arising out of or
in connection with this Agreement; and (c) waive any objection based on improper venue or
inconvenient form with respect to any such action or proceeding in the Chancery Court.
19. Notices. All notices, requests, demands, and other communications that are
required or permitted under this Agreement will be in writing and will be deemed to be validly
given (a) if delivered by hand and signed for by the Party addressed, on the date of such
hand-delivery, or (b) if mailed by domestic certified or registered mail with postage prepaid, on
the fifth business day after the postmark date, or (c) if sent by national overnight mail courier,
on the second business day after the date deposited with such national overnight mail courier. All
such notices, requests, demands, and other communications to the Indemnitee will be addressed to
the
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Indemnitee at the Indemnitee’s address that is specified on this Agreement’s signature page.
All such notices, requests, demands, and other communications to the Company will be addressed to
NextG Networks, Inc., Attention: General Counsel, 0000 X’Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000.
Either Party may change such Party’s notice address by giving the other Party written notice of
such notice address change according to this Section 19.
20. Counterparts, Signature, and Delivery. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original, but all of which together will
constitute one and the same instrument. Either Party may execute this Agreement by facsimile, an
electronically-mailed PDF reproduction, or any other written or electronic reproduction, and either
Party may deliver an executed copy of this Agreement by facsimile, electronic mail, or similar
written or electronic transmission device, in each case if the signature of or on behalf of such
Party is visible, and such execution and delivery will be considered valid, binding, and effective
for all purposes. At either Party’s request, the other Party will execute an original of this
Agreement in addition to any facsimile, electronically-mailed PDF reproduction, or other written or
electronic reproduction of this Agreement.
* * * * *
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As of the Effective Date, the Parties have validly and mutually signed and delivered this
Indemnification Agreement.
NEXTG NETWORKS, INC. |
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INDEMNITEE |
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Regular Mailing Address: |
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Electronic Mailing Address: |
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Fax Number: |
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