EXHIBIT 40
Form of Director Indemnification Agreement
INDEMNIFICATION AGREEMENT
This Agreement is made as of the 23rd day of June, 1997 by and between
National Wireless Holdings Inc., a Delaware corporation (the "Corporation"), and
________________________, (the "Indemnitee").
The Indemnitee has in the past, is currently, and may in the future serve
as a director or officer of the Corporation or has, is or may serve at the
request of the Corporation as an officer, employee or agent or in other
capacities for the Corporation, or as a director, officer, employee or agent or
in other capacities for other corporations or entities as designated by the
Corporation.
The Certificate of Incorporation of the Corporation provides for the
indemnification of the officers, directors, employees and agents of the
Corporation to the fullest extent authorized by law, including Section 145(f) of
the General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended or supplemented (the "Delaware Corporation Law"). Section
145(f) of the Delaware Corporation Law specifically provides that the
indemnification provisions contained therein are not exclusive, and thereby
contemplates that contracts may be entered into between the Corporation and the
members of its Board of Directors with respect to indemnification of such
directors.
The Indemnitee has indicated his concern that the indemnities available
under the Corporation's Certificate of Incorporation may not be adequate to
protect him against the risks associated with his service to the Corporation,
and the Indemnitee may not be willing to serve or to continue to serve in office
unless the Corporation is otherwise able to indemnify the Indemnitee.
In order to induce the Indemnitee to agree to continue to serve as a
director in any other capacities as requested by the Corporation and in
consideration of the Indemnitee's continued service after the date hereof, the
parties hereby agree as follows:
1. If the Indemnitee was or is made a party or is threatened to be made a
party or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (the "proceeding"), by reason of the fact that
he or a person for whom he is the legal representative or was a director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is an alleged action in an official capacity as a director,
officer, employee or agent the Corporation shall indemnify and hold harmless the
Indemnitee to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended, against all costs,
expenses,
liabilities, judgments and losses (including attorneys' fees, judgments, fines,
excise taxes or penalties under the Employee Retirement Income Security Act of
1974, as amended) and amounts paid or to be paid in settlement of any
proceeding, reasonably incurred or suffered by the Indemnitee in connection
therewith.
2. The Corporation shall (within 15 days of written request therefor by
the Indemnitee) pay to the Indemnitee all costs and expenses (including, but not
limited to, attorneys, accountants, investment or other advisor and expert
witness fees) incurred by the Indemnitee or reasonably anticipated to be
incurred by the Indemnitee in defending any such proceeding in advance of its
final disposition; provided, however that the payment of such expenses in
advance of the final disposition of such proceeding shall be made only if the
request therefor by the Indemnitee is accompanied by a written undertaking,
signed by him, in favor of the Corporation to repay all amounts so advanced if
it should be ultimately determined by a court of competent jurisdiction that the
Indemnitee is not entitled to be indemnified under Section 145 of the Delaware
General Corporation Law.
3. If the Corporation does not respond to a written claim for any payment
(including advancement of expenses) under this Agreement within fifteen days of
having received such a claim, it shall be deemed to have waived any right to
refuse to pay such claim under this Agreement. In addition, if a claim under
this Agreement is not paid by the Corporation, or on its behalf, within thirty
days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation and the
Corporation shall have the burden of proving that the Indemnitee is not entitled
to payment under this Agreement. If successful in whole or in part, the
claimant shall be entitled to be paid also all expenses (including attorneys'
fees and expenses) of prosecuting such claim together with interest at the rate
of 12% per annum from the date the expenses were paid by the Indemnitee.
4. In the event of payment to the Indemnitee under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee (and his executors, administrators, and
heirs), who shall execute all documents and take all actions reasonably
requested by the Corporation to implement such right of subrogation.
5. The Corporation shall not be liable under this Agreement to make any
payment in satisfaction of adjudged liabilities assessed against the Indemnitee:
(a) for which payment is actually made to the Indemnitee under a
valid and collectible insurance policy maintained by the Corporation,
except in respect of any excess beyond the amount of payment under such
insurance;
(b) based upon liability for a claim arising from a
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final adjudication by a court of competent jurisdiction that the
Indemnitee is liable to the Corporation; provided that if and to the extent
that the Court of Chancery of the State of Delaware or the court in which
such action or suit giving rise to such adjudication of liability was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the Indemnitee
is fairly and reasonably entitled to indemnity for such expenses as such
court shall deem proper, the Corporation shall indemnify the Indemnitee for
such expenses;
(c) based upon or attributable to the Indemnitee or any member of his
immediate family having been finally adjudged to have gained in fact any
personal profit or advantage to which he was not legally entitled;
(d) for an accounting for profits made from the purchase or sale by
the Indemnitee of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto
or similar provisions of any state statutory law or common law;
(e) on account of the Indemnitee's conduct which is finally adjudged
to have been knowingly fraudulent, deliberately dishonest or willful
misconduct; or
(f) for which indemnification under this Agreement is determined by a
final adjudication of a court of competent jurisdiction to be unlawful and
violative of public policy.
6. Within a reasonable time after receipt by the Indemnitee of notice of
the commencement of any proceeding, the Indemnitee will, if a claim in respect
thereof is to be made against the Corporation under this Agreement, notify the
Corporation of the commencement thereof; but the omission so to notify the
Corporation will not relive the Corporation from any liability which it may have
to the Indemnitee otherwise than under this Agreement. With respect to any such
action, suit or proceeding as to which the Indemnitee notifies the corporation
of the commencement thereof;
(a) the Corporation will be entitled to participate therein at its
own expense;
(b) Except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnitee. After notice from the Corporation to the
Indemnitee of its election so to assume the defense thereof, the
Corporation will not be liable to the Indemnitee under this Agreement for
any legal or other expenses subsequently incurred by the Indemnitee in
connection with the defense thereof other than reasonably costs of
investigation or as otherwise provided below. The Indemnitee shall have
the right
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to employ his counsel in such action, suit or proceeding, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized
by the Corporation, (ii) the Indemnitee shall have concluded, in his sole
discretion, that there may be a conflict of interest between the
Corporation and the Indemnitee in the conduct of the defense of such action
or (iii) the Corporation shall not in fact have employed counsel to assume
the defense of such action, in each of which cases the fees and expense of
the Corporation. The Corporation shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of the
Corporation or as to which the Indemniteee shall have made the conclusion
provided for in (ii) above; and
(c) the Corporation shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent. The Corporation shall not
settle any action or claim without the Indemnitee's written consent.
Neither the Corporation nor the Indemnitee shall unreasonably withhold its
or his consent to any proposed settlement.
7. All agreements and obligation of the Corporation contained herein
shall continue during the period the Indemnitee is servicing in any of the
capacities referred to in Section 1 hereof and shall continue thereafter so long
as the Indemnitee or his executors, administrators, or heirs could be subject to
any possible claim or threatened, pending or completed proceeding by reason of
the fact that the Indemnitee was serving in any of such capacities.
8. (a) Any notice or other communication under this Agreement shall be
in writing and shall deemed given when delivered personally or mailed by
certified mail, return receipt requested, to the parties as follows:
IF TO THE CORPORATION:
National Wireless Holdings Inc.
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
WITH A COPY TO:
Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
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IF TO THE INDEMNITEE:
or to such other address or person as any party hereto may specify by notice to
the other.
(b) The waiver by any party and the breach of any of the provisions of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach hereof.
(c) This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors assigns, legal representatives,
executors, administrators and heirs.
(d) This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Delaware without regard to conflict of law
provisions.
(e) Each of the parties hereto submits to the jurisdiction of a United
States District Court of the Southern District of New York or, if such Court
lacks subject matter jurisdiction, to the jurisdiction of the Chancery Court of
the State of Delaware with respect to any disputes, directly or indirectly, to
any matter of interpretation of this Agreement or the respective rights or
obligations of each of the parties hereto (whether or not any such party is
otherwise subject to the jurisdiction or venue of any such Courts and
acknowledges that service or process may be made by mailing a copy thereof in
accordance with the provisions of subsection (a) above.
(f) Each of the provisions of this Agreement is a separate and distinct
agreement and independent of all others, so that if any provision hereof shall
be held to be invalid or unenforceable for any reason, such invalidity or
enforceability shall not affect the validity or enforceability of any other
provisions hereof. This Agreement is being entered into pursuant to Section
145(f) of the Delaware Corporation Law and as such is intended to be
supplemental to any other rights to indemnification available to the Indemnitee
and is not intended to be restricted by the previsions of clauses (a) and (b) of
such Section 145. Nothing herein shall be deemed to diminish or otherwise
restrict the indemnitee's right to indemnification under any provision of the
Certificate of incorporation of By-laws of the Corporation.
(g) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing and signed by both parties
hereto.
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9. The Indemnitee agrees that he will reimburse the Corporation for all
reasonable expenses paid by the Corporation in defending any civil or criminal
action, suit or proceeding against him in the event and only to the extent that
it shall ultimately be determined by a court of competent jurisdiction or in
arbitration between the Corporation and the Indemnitee in accordance with rules
of the American Arbitration Association that he was not entitled to be
indemnified by the Corporation for such expenses under the provisions of the
Delaware the Corporation law, this Agreement or otherwise at the time the
expenses were advanced.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
NATIONAL WIRELESS HOLDINGS INC.
By:_________________________________
Name:
Title:
___________________________________
, Indemnitee
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