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EXHIBIT 10.13
INDEMNIFICATION AGREEMENT
This Agreement, dated as of ________ ___, 1998, is made by and between
Allegiance Telecom, Inc., a Delaware corporation (the "Company"), and
[_____________] who is currently serving as an officer and/or director of the
Company (the "Indemnitee").
WHEREAS, the Indemnitee is currently serving in the capacity or
capacities described above;
WHEREAS, the Company wishes the Indemnitee to continue to serve in
such capacity or capacities and the Indemnitee is willing, under certain
circumstances, to continue in such capacity or capacities;
WHEREAS, damages sought and sometimes paid in many claims made against
corporate directors and officers and the expenses required to defend such
claims, whether or not the allegations are meritorious, may not bear a
reasonable relationship to the amount of compensation received by and may be
beyond the financial resources of the Indemnitee;
WHEREAS, the Indemnitee is currently entitled to indemnification under
the Delaware General Corporation Law (the "DGCL") and the Company's charter,
which may not provide adequate protection against the risks associated with
his/her service to or at the request of the Company;
WHEREAS, the Indemnitee and the Company have concluded that the
exposure to risk of personal liability and payment of damages out of the
Indemnitee's personal assets may result in overly conservative direction and
supervision of the Company's affairs, which could be detrimental to the best
interests of the Company and its stockholders; and
WHEREAS, the Company has concluded that additional protection is
necessary for its directors and elected officers.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions.
(a) Agent. For the purposes of this Agreement, "agent" of the
Company means any person who is or was a director, officer, employee, agent or
fiduciary of the Company or a subsidiary of the Company, or is or was serving
at the request of, for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture, trust or other
enterprise or entity, including service with respect to an employee benefit
plan.
(b) Disinterested Director. For purposes of this Agreement,
"Disinterested Director" of the Company means a director of the Company who is
not and was not a party to the proceeding for which indemnification is being
sought by the claimant.
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(c) Expenses. For purposes of this Agreement, "expenses" includes
all direct and indirect costs of any type or nature whatsoever (including,
without limitation, all attorneys' fees and related disbursements, other
out-of-pocket costs and reasonable compensation for time spent by the
Indemnitee for which he/she is not otherwise compensated by the Company or any
third party) actually and reasonably incurred by the Indemnitee in connection
with either the investigation, defense or appeal of a proceeding or
establishing or enforcing a right to indemnification under this Agreement,
Section 145 of the DGCL or otherwise; provided, however, that expenses shall
not include any judgments, fines, excise taxes or penalties under the Employee
Retirement Income Security Act of 1974 ("ERISA"), or amounts paid in settlement
of a proceeding.
(d) Independent Legal Counsel. For purposes of this Agreement,
"Independent Legal Counsel" means a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and
shall include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in representing
either the Company or the Indemnitee in an action to determine the Indemnitee's
rights under this Agreement.
(e) Proceeding. For the purposes of this Agreement, "proceeding"
means any threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, investigative or any other type
whatsoever.
(f) Subsidiary. For purposes of this Agreement, "subsidiary"
means any corporation, partnership, joint venture or other enterprise, a
majority of whose equity interests are owned by the Company, directly or
through one or more other subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve as an
agent of the Company, at its will (or under separate agreement, if such
agreement exists), in the capacity Indemnitee currently serves as an agent of
the Company, so long as he/she is duly appointed or elected and qualified in
accordance with the applicable provisions of the by-laws of the Company or any
subsidiary of the Company or until such time as he/she tenders his/her
resignation in writing; provided, however, that nothing contained in this
Agreement is intended to create any right to continued employment of the
Indemnitee.
3. Mandatory Indemnification. Subject to the limitations set
forth in Section 7, if the Indemnitee is a person who was or is a party or is
threatened to be made a party to or is involved, including involvement as a
witness, in any proceeding, including any action by or in the right of the
Company, by reason of the fact that he/she is or was or has agreed to become an
agent, or by reason of any action alleged to have been taken or omitted by
him/her in any such capacity, the Company shall indemnify the Indemnitee
against all expense, liability and loss (including but not limited to
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be
paid in settlement), actually and reasonably incurred by him/her in connection
with the investigation, defense, settlement or appeal of such proceeding;
provided, however, that except as provided in Section 7(c) of this Agreement
with respect to proceedings seeking to enforce rights to indemnification, the
Company shall indemnify the Indemnitee in connection with a proceeding (or part
thereof) initiated by the Indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Company.
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4. Mandatory Advancement of Expenses. The Company shall advance
all expenses incurred by the Indemnitee in connection with the investigation,
defense, settlement or appeal of any proceeding referred to in Section 3 to
which the Indemnitee is a party or is threatened to be made a party or with
respect to which the Indemnitee is otherwise involved (including involvement as
a witness) as an agent of the Company. The Indemnitee hereby undertakes to
repay such amounts advanced if, but only if and to the extent that, it shall
ultimately be determined pursuant to the provisions hereof that the Indemnitee
is not entitled to be indemnified by the Company as authorized hereby. The
advances to be made hereunder shall be paid by the Company to the Indemnitee
within twenty (20) days following delivery of a written request therefor by the
Indemnitee to the Company; provided, however, that, if and to the extent that
the DGCL requires, an advancement of expenses incurred by the Indemnitee in
his/her capacity as a director or officer shall be made only upon delivery of
an undertaking by or on behalf of the Indemnitee to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal that the Indemnitee is not entitled
to be indemnified for such expenses under this Agreement or otherwise.
5. Maintenance of D&O Insurance.
(a) So long as the Indemnitee shall continue to serve in any
capacity described in Section 2 and thereafter so long as there is any
reasonable possibility that the Indemnitee shall be subject to any proceeding
by reason of the fact that the indemnitee served in any of such capacities, the
Company will use reasonable efforts to purchase and maintain in effect for the
benefit of the Indemnitee one or more valid, binding and enforceable policies
of directors' and officers' liability insurance ("D&O Insurance") providing, in
all respects, coverage and amounts as reasonably determined by the Board of
Directors.
(b) Notwithstanding Section 5(a), the Company shall not be
required to maintain D&O Insurance if such is not reasonably available or if,
in the reasonable business judgment of the Board of Directors of the Company as
it may exist from time to time, either (i) the premium cost for such insurance
is substantially disproportionate to the amount of insurance or (ii) the
coverage is so limited by exclusions that there is insufficient benefit
provided by such insurance compared with the cost thereof.
6. Notice and Other Indemnification Procedures.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any proceeding, the Indemnitee
shall, if the Indemnitee believes that the indemnification with respect thereto
properly may be sought from the Company under this Agreement, notify the
Company of the commencement or threat of commencement thereof. The failure to
notify or promptly notify the Company shall not relieve the Company from any
liability which it may have to the Indemnitee otherwise than under this
Agreement, and shall relieve the Company from liability hereunder only to the
extent the Company has been prejudiced.
(b) If, at the time of the receipt of a notice of the commencement
of a proceeding pursuant to Section 6(a), the Company has D&O Insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures
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set forth in the D&O Insurance policy. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, to or on behalf of
the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policy.
(c) In the event the Company shall be obligated to pay the
expenses of the Indemnitee in connection with any proceeding, the Company shall
be entitled to assume the defense of such proceeding, with counsel approved by
the Indemnitee, upon the delivery to the Indemnitee of written notice of its
election to do so. After delivery of such notice, approval of such counsel by
the Indemnitee and the retention of such counsel by the Company, the Company
will not be liable to the Indemnitee under this Agreement for any fees of
counsel or other expenses subsequently incurred by the Indemnitee with respect
to the same proceeding; provided that (i) the Indemnitee shall have the right
to employ his/her own counsel in any such proceeding at the Indemnitee's
expense and (ii) if (A) the employment of counsel by the Indemnitee has been
previously authorized by the Company, or (B) the Indemnitee shall have
reasonably concluded that there is a conflict of interest between the Company
and the Indemnitee in the conduct of any such defense, or (C) the Company shall
not, in fact, have employed counsel to assume the defense of such proceeding,
the fees and expenses of the Indemnitee's counsel shall be paid by the Company;
and provided further that the Company shall not be required to pay the expenses
of more than one such separate counsel for persons it is indemnifying in any
one proceeding.
7. Determination of Right to Indemnification.
(a) To the extent the Indemnitee has been successful on the merits
or otherwise in defense of any proceeding referred to in Section 3 or in the
defense of any claim, issue or matter described therein, the Company shall
indemnify the Indemnitee pursuant to Section 3 against expenses actually and
reasonably incurred by him/her in connection with the investigation, defense,
or appeal of such proceeding. If the Indemnitee has not been successful on the
merits or otherwise in any such defense, the Company also shall indemnify the
Indemnitee pursuant to Section 3 unless, and only to the extent that, the
Indemnitee has not met the applicable standard of conduct under the Company's
charter and under the DGCL required to entitle the Indemnitee to such
indemnification.
(b) Subject to the provisions of Section 8 relating to a Change in
Control (as defined therein), the determination as to whether the Indemnitee is
entitled to indemnification shall be made as follows: (1) if requested by the
Indemnitee, by Independent Legal Counsel selected by the Indemnitee with the
consent of the Company (which consent shall not be unreasonably withheld) or
(2) if no request is made by the Indemnitee for a determination by Independent
Legal Counsel, (i) by a quorum of the Board of Directors consisting of
Disinterested Directors or (ii) if such quorum is not obtainable or, even if
obtainable, if a quorum of Disinterested Directors so directs, by Independent
Legal Counsel in a written opinion. If Independent Legal Counsel shall make
such determination, the Company agrees to pay the reasonable fees of such
counsel and to indemnify such counsel fully against any and all expenses
(including attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement or counsel's engagement pursuant hereto.
(c) Notwithstanding a determination that the Indemnitee is not
entitled to indemnification with respect to a specific proceeding, the
Indemnitee shall have the right to apply to the court of Chancery of Delaware,
the court in which that proceeding is or was pending or any other court of
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competent jurisdiction, for the purpose of enforcing the Indemnitee's right to
indemnification or the advance payment of expenses pursuant to this Agreement.
The burden of proof shall be on the Company in any such suit to demonstrate by
the weight of the evidence that the Indemnitee is not entitled to
indemnification or advance payment of expenses. The Indemnitee's expenses
incurred in successfully establishing his/her right to indemnification or
advancement of expenses, in whole or in part, in any such action (or settlement
thereof) shall be paid by the Company.
(d) Notwithstanding anything in Sections 3 or 4 to the contrary,
the Company shall not be liable under this Agreement to make any indemnity
payment or advancement of expenses in connection with any proceeding (i) to the
extent that payment is actually made to or on behalf of the Indemnitee under an
insurance policy, except in respect of any amount in excess of the limits of
liability of such policy or any applicable deductible under such policy; (ii)
to the extent that payment has been or will be made to the Indemnitee by the
Company otherwise than pursuant to this Agreement; or (iii) to the extent that
there was a final adjudication by a court of competent jurisdiction that the
Indemnitee has not met the applicable standard of conduct required to entitle
the Indemnitee to indemnification under the DGCL as it now exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment).
8. Change In Control.
(a) The Company agrees that if there is a Change in Control, as
defined below, of the Company (other than a Change in Control which has been
approved by a majority of the members of the Board of Directors who were
directors immediately prior to such Change in Control), then with respect to
all matters thereafter arising concerning the rights of the Indemnitee to
indemnity payments and advance payments of expenses under this Agreement the
Company shall seek legal advice only from Independent Legal Counsel selected by
the Indemnitee with the consent of the Company (which shall not be unreasonably
withheld). Such counsel, among other things, shall render a written opinion to
the Company and the Indemnitee as to whether and to what extent the Indemnitee
would be permitted to be indemnified under this Agreement and applicable law.
The Company agrees to pay the reasonable fees of the Independent Legal Counsel
and to indemnify such counsel fully against any and all expenses (including
attorneys' fees), claims, liabilities and damages arising out of or relating to
this Agreement or counsel's engagement pursuant hereto.
(b) Alternatively, the Indemnitee may choose to submit all matters
arising concerning his/her rights to indemnity payments and advance payments of
expenses under this Agreement to a panel of three arbitrators, one of whom is
selected by the Company, another of whom is selected by the Indemnitee and the
third of whom is selected by the first two arbitrators so selected. Any such
submission shall be governed by the Commercial Arbitration Rules of the
American Arbitration Association and shall be deemed to be a submission within
the meaning of the Federal Arbitration Act or any statutory modification or re-
enactments thereof. Arbitration proceedings shall take place in Chicago,
Illinois, unless otherwise agreed to by the parties.
(c) "Change in Control" for purposes of this Agreement shall be
deemed to have occurred if (a) any "person" (as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act
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of 1934, as amended, and the rules and regulations thereunder), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, or a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of
stock of the Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's
then outstanding voting securities, except that a person who as of the date of
this Agreement owns 20% or more of the total voting power represented by the
Company's outstanding voting securities shall not be deemed to have caused a
Change in Control, or (b) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors and any new director whose election by the Board of Directors or
nomination for election by the Company's stockholders was approved by a vote of
at least two-third (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority thereof, or (c) the stockholders of the Company approve a merger, plan
of complete liquidation of the Company, an agreement for the sale or
disposition by the Company of all or any substantial part of the Company's
assets, or other business combination of the Company with any other
corporation, other than a business combination which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 80% of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such business combination.
9. Limitation of Actions and Release of Claims. No proceeding
shall be brought and no cause of action shall be asserted by the Company or any
subsidiary or by any stockholder on behalf of the Company or any subsidiary
against the Indemnitee, his/her spouse, heirs, estate, executors or
administrators after the expiration of one year from the act or omission of the
Indemnitee upon which such proceeding is based; provided, however, that in the
event that the Indemnitee has fraudulently concealed the facts underlying such
cause of action, no proceeding shall be brought and no cause of action shall be
asserted after the expiration of one year from the earlier of (i) the date the
Company or any subsidiary of the Company discovers such facts or (ii) the date
the Company or any subsidiary of the Company could have discovered such facts
by the exercise of reasonable diligence. Any claim or cause of action of the
Company or any subsidiary of the Company, including claims predicated upon the
negligent act or omission of the Indemnitee, shall be extinguished and deemed
released unless asserted by filing of a legal action within such period. This
Section 9 shall not apply to any cause of action which has accrued on the date
hereof and of which the Indemnitee is aware on the date hereof but as to which
the Company has no actual knowledge apart from the Indemnitee's knowledge.
10. Non-exclusivity. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which the Indemnitee may have under any provision
of law, the Company's charter or by-laws, the vote of the Company's
stockholders or Disinterested Directors, other agreements, or otherwise, both
as to action in his/her official capacity and to action in another capacity
while occupying his/her position as an agent of the Company, and the
Indemnitee's rights hereunder shall continue after the Indemnitee has ceased
acting as an agent of the Company and shall inure to the benefit of the heirs,
executors and administrators of the Indemnitee.
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11. Settlement. The Company shall not be liable to indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of any
proceeding without the Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not settle any proceeding which would
impose any penalty or limitation on the Indemnitee without the Indemnitee's
written consent, which consent shall not be unreasonably withheld. In the
event that consent is not given and the parties hereto are unable to agree on a
proposed settlement, Independent Legal Counsel shall be retained by the
Company, at its expense, with the consent of the Indemnitee, which consent
shall not be unreasonably withheld, for the purpose of determining whether or
not the proposed settlement is reasonable under all the circumstances; and if
Independent Legal Counsel determines the proposed settlement is reasonable
under all the circumstances, the settlement may be consummated without the
consent of the other party.
12. Subrogation Rights. In the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Indemnitee against any person or organization
and the Indemnitee shall execute all papers required and shall do everything
that may be reasonably necessary to secure such rights.
13. Interpretation of Agreement. It is understood that the
parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to the Indemnitee to the full extent now or hereafter
not prohibited by law. Indemnitee's rights hereunder shall apply to claims
made against Indemnitee arising out of acts or omissions which occurred prior
to the date hereof as well as those which occur after the date hereof.
14. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, (i) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, all portions of
any paragraph of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and (ii) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable and to give effect to Section 13.
15. Modification and Waiver. 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
(whether or not similar) nor shall such waiver constitute a continuing waiver.
16. Successors and Assigns. The terms of this Agreement shall
bind, and shall inure to the benefit of, the successors and assigns of the
parties hereto.
17. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
duly given (i) on the date of delivery if delivered by hand or (ii) on the
second business day after being deposited in the U.S. mail (registered or
express), postage prepaid. Addresses for notice to either party are as shown on
the signature page
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of this Agreement, or as subsequently modified by written notice. Each party
agrees to receipt for any notice received promptly upon request.
18. Governing Law. This Agreement shall be governed exclusively
by and construed according to the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.
19. Consent to Jurisdiction. The Company and the Indemnitee each
hereby irrevocably consents to the jurisdiction of the courts of the State of
Delaware and the Company irrevocably consents to the jurisdiction of any court
in which an Indemnitee brings action pursuant to Section 7(c), for all purposes
in connection with any proceeding which arises out of or relates to this
Agreement. The Company agrees not to initiate any such action or proceeding in
any state other than Delaware.
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IN WITNESS WHEREOF, the parties hereto have entered into this
Indemnification Agreement effective as of the date first above written.
ALLEGIANCE TELECOM, INC.
0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
By:
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Name:
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Its:
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INDEMNITEE:
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Name:
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Title:
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Address:
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