EXHIBIT 10.8
AIRGATE PCS, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is entered into as of the 14
day of May, 1999 by and between AirGate PCS, Inc., a Delaware corporation (the
"Company") and the Indemnitees identified on the signature pages hereto
(collectively with their respective Affiliated Persons, as defined below, the
"Indemnitees").
RECITALS
The Company and Indemnitees recognize the continued difficulty in obtaining
liability insurance for its directors, officers, employees, controlling persons,
fiduciaries and other agents and affiliates, the significant increases in the
cost of such insurance and the general reductions in the coverage of such
insurance.
The Company and Indemnitees further recognize the substantial increase in
corporate litigation in general, subjecting directors, officers, employees,
controlling persons, fiduciaries and other agents and affiliates to expensive
litigation risks at the same time as the availability and coverage of liability
insurance has been severely limited.
The current protection available to directors, officers, employees,
controlling persons, fiduciaries and other agents and affiliates of the Company
may not be adequate under the present circumstances, and directors, officers,
employees, controlling persons, fiduciaries and other agents and affiliates of
the Company (or persons who may be alleged or deemed to be the same), including
the Indemnitees, may not be willing to continue to serve or be associated with
the Company in such capacities without additional protection.
The Company (i) desires to attract and retain the involvement of highly
qualified persons, such as Indemnitees, to serve and be associated with the
Company, and (ii) accordingly, wishes to provide for the indemnification and
advancement of expenses to each Indemnitee to the maximum extent permitted by
law.
NOW, THEREFORE, the Company and each Indemnitee hereby agree as follows:
Section 1. Indemnification.
a. Indemnification of Expenses. The Company shall indemnify and
hold harmless each Indemnitee (including all of its respective Affiliated
Persons (as defined below)) to the fullest extent permitted by law if such
Indemnitee was or is or becomes a party to or witness or other participant in,
any threatened, pending or completed action, suit, proceeding or alternative
dispute resolution mechanism, or any hearing, inquiry or investigation that such
Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or other (hereinafter a "Claim")
by reason of (or arising in part out of) any event or occurrence related to the
fact that Indemnitee is or was (or is alleged to be or to have been) a director,
officer, employee, controlling person, fiduciary or other agent or affiliate of
the Company, or any subsidiary of the Company, or is or was (or is alleged to be
or to have been)
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serving at the request of the Company as a director, officer, employee,
controlling person, fiduciary or other agent or affiliate of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of such Indemnitee while serving (or
allegedly serving) in such capacity including, without limitation any and all
losses, claims, damages, expenses and liabilities, joint or several (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit proceeding or any claim asserted)
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, which relate directly or
indirectly to the registration, purchase, sale or ownership of any securities of
the Company or to any fiduciary obligation owed with respect to the Company and
its stockholders (hereinafter an "Indemnification Event"), against any and all
expenses (including attorneys' fees and all other costs, expenses and
obligations incurred in connection with investigating, defending a witness in or
participating in (including on appeal), or preparing to defend, be a witness in
or participate, in, any such action, suit proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation), judgments, fines,
penalties and amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably withheld) of
such Claim and any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments under this Agreement
(collectively, hereinafter "Expenses"), including all interest, assessments and
other charges paid or payable in connection with or in respect of such Expenses.
Such payment of Expenses shall be made by the Company as soon as practicable but
in any event no later than ten (10) days after written demand by the Indemnitee
therefor is presented to the Company.
b. Reviewing Party. Notwithstanding the foregoing, (i) the obligations of
the Company under Section 1(a) shall be subject to the condition that the
Reviewing Party (as defined in Section 10(f) hereof) shall not have determined
(in a written opinion, in any case in which the Independent Legal Counsel
referred to in Section 10(e) hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law, and (ii) the obligation of the
Company to make an advance payment of Expenses to Indemnitee pursuant to Section
2(a) (an "Expense Advance") shall be subject to the condition that, if, when and
to the extent that the Reviewing Party determines that Indemnitee would not be
permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitees' obligation to reimburse the Company for any
Expense Advance shall be unsecured and no interest shall be charged thereon. If
there has not been a Change in Control (as defined in Section 10(d) hereof), the
Reviewing Party shall be selected by the Board of Directors, and if there has
been such a Change in Control (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control), the Reviewing Party shall be the
Independent Legal Counsel referred to in Section 10(e) hereof. If there has
been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee
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substantively would not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation seeking
an initial determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear in
any such proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
c. Contribution. If the indemnification provided for in Section 1(a)
above for any reason is held by a court of competent jurisdiction to be
unavailable to an Indemnitee in respect of any losses, claims, damages, expenses
or liabilities referred to therein, then the Company, in lieu of indemnifying
such Indemnitee thereunder, shall contribute to the amount paid or payable by
such Indemnitee as a result of such losses, claims, damages, expenses or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Indemnitees, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Indemnitee in connection with the action or inaction which resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. In connection with the registration of the Company's
securities, the relative benefits received by the Company and any Indemnitee
shall be deemed to be in the same respective proportions that the net proceeds
from the offering (before deducting expenses) received by the Company and the
Indemnitee, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
securities so offered. The relative fault of the Company and any Indemnitee
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Indemnitee and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 1(c) were determined by pro
rata or per capita allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. In connection with the registration of the Company's
securities, in no event shall an Indemnitee be required to contribute any amount
under this Section 1(c) in excess of the lesser of (i) that proportion of the
total of such losses, claims, damages or liabilities indemnified against equal
to the proportion of the total securities sold under such registration statement
which is being sold by such Indemnitee or (ii) the proceeds received by such
Indemnitee from its sale of securities under such registration statement. No
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not found guilty of such fraudulent misrepresentation.
d. Survival Regardless of Investigation. The indemnification and
contribution provided for in this Section 1 will remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnitees or any
officer, director, employee, agent or controlling person of the Indemnitees.
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e. Change in Control. 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 Company's 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 any Indemnitee to payments
of Expenses under this Agreement or any other agreement or under the Company's
Certificate of Incorporation or Bylaws as now or hereafter in effect,
Independent Legal Counsel (as defined in Section 10(e) hereof) shall be selected
by the Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld). Such counsel, among other things, shall render its
written opinion to the Company and Indemnitees as to whether and to what extent
Indemnitees would be permitted to be indemnified under applicable law. The
Company agrees to abide by such opinion and to pay the reasonable fees of the
Independent Legal Counsel referred to above and to fully indemnify such counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
f. Mandatory Payment of Expenses. Notwithstanding any other provision of
this Agreement other than Section 8 hereof, to the extent that an Indemnitee has
been successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in the defense of any action, suit,
proceeding, inquiry or investigation referred to in Section (1) (a) hereof or in
the defense of any claim, issue or matter therein, such Indemnitee shall be
indemnified against all Expenses incurred by such Indemnitee in connection
therewith.
Section 2. Expenses; Indemnification Procedure.
a. Advancement of Expenses. The Company shall advance all Expenses
incurred by any Indemnitee. The advances to be made hereunder shall be paid by
the Company to the Indemnitee as soon as practicable but in any event no later
than ten (10) days after written demand by such Indemnitee therefor to the
Company.
b. Notice/Cooperation by Indemnitees. Each Indemnitee shall, as a
condition precedent to Indemnitee's right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or could be sought
under this Agreement. Notice to the Company shall be directed to the Chief
Executive Officer of the Company at the address shown on the signature page of
this Agreement (or such other address as the Company shall designate in writing
to Indemnitees). In addition, each Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
c. No Presumptions; Burden of Proof. For purposes of this
Agreement, the termination of any Claim by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that any
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law. In addition, neither the failure of the Reviewing
Party to have made a determination as to whether an Indemnitee has met any
particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that the Indemnitee has not met such
standard of conduct or did not have such belief, prior to the commencement of
legal proceedings
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by Indemnitee to secure a judicial determination that the Indemnitee should be
indemnified under applicable law, shall be a defense to the Indemnitee's claim
or create a presumption that the Indemnitee has not met any particular standard
of conduct or did not have any particular belief. In connection with any
determination by the Reviewing Party or otherwise as to whether the Indemnitee
is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that the Indemnitee is not so entitled.
d. Notice to Insurers. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 2(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt notice of the commencement of such Claim to the insurers in accordance
with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of each Indemnitee, all amounts payable as a result of such action,
suit, proceeding, inquiry or investigation in accordance with the terms of such
policies.
e. Selection of Counsel. In the event the Company shall be
obligated hereunder to pay the expenses of any Claim, the Company shall be
entitled to assume the defense of such Claim, with counsel approved by the
applicable Indemnitee, which approval shall not be unreasonably withheld, upon
the delivery to such 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
such Indemnitee under this Agreement for any fees of counsel subsequently
incurred by such Indemnitee with respect to the same Claim; provided that (i)
the Indemnitee shall have the right to employ such Indemnitee's counsel in any
such Claim at the Indemnitee's expense and (ii) if (A) the employment of counsel
by the Indemnitee has been previously authorized by the Company, (B) such
Indemnitee shall have reasonably concluded that there is a conflict of interest
between the Company and such Indemnitee in the conduct of any such defense, or
(C) the Company shall not continue to retain such counsel to defend such Claim,
then the fees and expenses of the Indemnitee's counsel shall be at the expense
of the Company. The Company shall have the right to conduct such defense as it
sees fit in its sole discretion, including the right to settle any claim against
any Indemnitee without the consent of such Indemnitee.
Section 3. Additional Indemnification Rights; Nonexclusivity.
a. Scope. The Company hereby agrees to indemnify each Indemnitee
to the fullest extent permitted by law, notwithstanding that such
indemnification may not be specifically authorized by the other provisions of
this Agreement, the Company's Certificate of Incorporation, the Company'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 Delaware
corporation to indemnify a member of its Board of Directors or an officer,
employee, controlling person, agent or fiduciary, it is the intent of the
parties hereto that each Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its Board of Directors or an officer, employee, agent or
fiduciary, such change, 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 except as set forth
in Section 8(a) hereof.
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b. Nonexclusivity. The indemnification provided by this Agreement
shall be in addition to any rights to which any Indemnitee may be entitled under
the Company's Certificate of Incorporation, its Bylaws, any agreement, any vote
of stockholders or disinterested directors, the General Corporation Law of the
State of Delaware, or otherwise. The indemnification provided under this
Agreement shall continue as to each Indemnitee for any action such Indemnitee
took or did not take while serving in an indemnified capacity even though the
Indemnitee may have ceased to serve in such capacity.
Section 4. No Duplication of Payments.
The Company shall not be liable under this Agreement to make any payment in
connection with any Claim made against any Indemnitee to the extent such
Indemnitee has otherwise actually received payment (under any insurance policy,
Certificate of Incorporation, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section 5. Partial Indemnification.
If any Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for any portion of Expenses incurred in
connection with any Claim, but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such Expenses to which such Indemnitee is entitled.
Section 6. Mutual Acknowledgment.
The Company and each Indemnitee acknowledge that in certain instances,
Federal law or applicable public policy may prohibit the Company from
indemnifying its directors, officers, employees, controlling persons,
fiduciaries or other agents or affiliates under this Agreement or otherwise.
Each Indemnitee understands and acknowledges that the Company has undertaken or
may be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain
circumstances for a determination of the Company's rights under public policy to
indemnify the Indemnitees.
Section 7. Liability Insurance.
To the extent the Company maintains liability insurance applicable to
directors, officers, employees, control persons, fiduciaries or other agents and
affiliates, each Indemnitee shall be covered by such policies in such a manner
as to provide to the Indemnitee the same rights and benefits as are accorded to
the most favorably insured of the Company's directors, if such Indemnitee is a
director; or of the Company's officer's, if such Indemnitee is not a director of
the Company but is an officer; or of the Company's key employees, controlling
persons, fiduciaries or other agents or affiliates, if such Indemnitee is not an
officer or director but is a key employee, control person, fiduciary, agent or
affiliate.
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Section 8. Exceptions.
Any other provision herein to the contrary notwithstanding, the Company
shall not be obligated pursuant to the terms of this Agreement:
a. Excluded Action or Omissions. To indemnify any Indemnitee for
such Indemnitee's acts, omissions or transactions from which the Indemnitee may
not be relieved of liability under applicable law;
b. Claims Initiated by Indemnitee. To indemnify or advance
expenses to any Indemnitee with respect to Claims initiated or brought
voluntarily by such Indemnitee and not by way of defense, except (i) with
respect to actions or proceedings to establish or enforce a right to indemnify
under this Agreement or any other agreement or insurance policy or under the
Company's Certificate of Incorporation or Bylaws now or hereafter in effect
relating to Claims for Indemnifiable Events, (ii) in specific cases if the Board
of Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under Section 145 of the Delaware General Corporation Law,
regardless of whether such Indemnitee ultimately is determined to be entitled to
such indemnification, advance expense payment or insurance recovery, as the case
may be:
c. Lack of Good Faith. To indemnify an Indemnitee for any expenses
incurred by such Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
d. Claims Under Section 16(b). To indemnify any Indemnitee for
expenses and the payment of profits arising from the purchase and sale by such
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended or any similar successor statute.
Section 9. Period of Limitations.
No legal action shall be brought and no cause of action shall be asserted
by or in the right of the Company against any Indemnitee, such Indemnitee's
estate, spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and
any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such two-
year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall
govern.
Section 10. Construction of Certain Phrases.
a. For the purposes of this Agreement, an "Affiliated Person" of
an Indemnitee shall include any director, officer, employee, controlling person
(within the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended), agent or
fiduciary of the Indemnitee, any stockholder of the Company for whom Indemnitee
serves as a director, officer, employee, controlling person, agent
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or fiduciary, and any partnership, corporation, limited liability company,
association, joint stock company, trust or joint venture controlling, controlled
by or under common control with such a stockholder. For these purposes,
"control" means the possession, directly or indirectly, of the power to direct
management and policies of a person or entity, whether through the ownership of
voting securities, contract or otherwise.
b. For purposes of this Agreement, references to the "Company"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees,
agents, fiduciaries and other Affiliated Persons, so that if Indemnitee is or
was a director, officer, employee, agent, control person, fiduciary or an
Affiliated Person of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee,
control person, agent or fiduciary or another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise, such Indemnitee shall
stand in the same position under the provisions of this Agreement with respect
to the resulting or surviving corporation as such Indemnitee would have with
respect to such constituent corporation if its separate existence had continued.
c. For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on any Indemnitee with respect to an employee
benefit plan; and references to "serving at the request of the Company" shall
include any service as a director, officer, employee, agent or fiduciary of the
Company which imposes duties on, or involves services by, such director,
officer, employee, agent, fiduciary or other Affiliated Person with respect to
an employee benefit plan, its participants or its beneficiaries: and if any
Indemnitee acted in good faith and in a manner such Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, such Indemnitee shall be deemed to have acted in a manner
"not opposed to the best interests of the Company" as referred to in this
Agreement.
d. For purposes of this Agreement a "Change in Control" shall be
deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), 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, (A) who is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 10% or more of the
combined voting power of the Company's then outstanding Voting Securities,
increases his beneficial ownership of such securities by 5% or more over the
percentage so owned by such person, or (B) becomes the "beneficial owner" (as
defined in rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing more than 20% of the total voting power represented by
the Company's then outstanding Voting Securities, (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company 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-thirds 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
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constitute a majority thereof, or (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining 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 merger or consolidation or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of
transactions) all or substantially all of the Company's assets.
e. For purposes of this Agreement, "Independent Legal Counsel"
shall mean an attorney or firm of attorneys, selected in accordance with the
provisions of Section 1(e) hereof, who shall not have otherwise performed
services for the Company or any Indemnitee within the last thee years (other
than with respect to matters concerning the right of any Indemnitee under this
Agreement, or of other indemnitees under similar indemnity agreements).
f. For purposes of this Agreement, a "Reviewing Party" shall mean
any appropriate person or body consisting of a member or members of the
Company's Board of Directors or any other person or body appointed by the Board
of Directors who is not a party to the particular Claim for which an Indemnitee
is seeking indemnification, or Independent Legal Counsel.
g. For purposes of this Agreement, "Voting Securities" shall mean
any securities of the Company that vote generally in the election of directors.
Section 11. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall constitute an original.
Section 12. Binding Effect; Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, and personal and legal representatives. The Company
shall 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 business and/or assets of the Company, by written agreement in form
and substance satisfactory to each Indemnitee, expressly to 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 taken place.
This Agreement shall continue in effect with respect to Claims relating to
Indemnifiable Events regardless of whether any Indemnitee continues to serve as
a director, officer, employee, agent, controlling person, or fiduciary of the
Company or of any other enterprise at the Company's request.
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Section 13. Attorneys' Fees.
In the event that any action is instituted by an Indemnitee under this
Agreement or under any liability insurance policies maintained by the Company to
enforce or interpret any of the terms hereof or thereof, any Indemnitee shall be
entitled to be paid all Expenses incurred by such Indemnitee with respect to
such action, regardless of whether such Indemnitee is ultimately successful in
such action, and shall be entitled to the advancement of Expenses with respect
to such action, unless, as a part of such action, a court of competent
jurisdiction over such action determines that each of the material assertions
made be such Indemnitee as a basis for such action was not made in good faith or
was frivolous. In the event of an action instituted by or in the name of the
Company under this Agreement to enforce or interpret any of the terms of this
Agreement, the Indemnitee shall be entitled to be paid all Expenses incurred by
such Indemnitee in defense of such action (including costs and expenses incurred
with respect to Indemnitee counterclaims and cross-claims made in such action),
and shall be entitled to the advancement of Expenses with respect to such
action, unless, as a part of such action, a court having jurisdiction over such
action determines that each of such Indemnitee's material defenses to such
action was made in bad faith or was frivolous.
Section 14. Notice.
All notices and other communications required or permitted hereunder shall
be in writing, shall be effective when given, and shall in any event be deemed
to be given (a) five (5) days after deposit with the U.S. Postal Service or
other applicable postal service, if delivered by first class mail, postage
prepaid, (b) upon delivery, if delivered by hand, (c) one business day after the
business day of deposited with Federal Express or similar overnight courier,
freight prepaid, or (d) one day after the business day of delivery by facsimile
transmission, if deliverable by facsimile transmission, with copy by first class
mail, postage prepaid, and shall be addressed if to and Indemnitee, at the
Indemnitee's address as set forth beneath the Indemnitte's signature to this
Agreement, and if to the Company at the address of its principal corporate
offices (attention: Secretary) or at such other address as such party may
designate by ten days' advance written notice to the other party hereto.
Section 15. Consent to Jurisdiction.
The Company and each Indemnitee each hereby irrevocably consent other
jurisdiction of the courts of the State of Delaware for all purposes in
connection with any action or proceeding which arises out of or relates to this
Agreement and agree that any action instituted under this Agreement shall be
commenced, prosecuted and continued only in the Court of Chancery of the State
of Delaware in and for New Castle County, which shall be the exclusive and only
proper forum for adjudicating such a claim.
Section 16. Severability.
The provisions of this Agreement shall be severable in the event that any
of the provisions hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law.
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Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitations, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section 17. Choice of Law.
This Agreement shall be governed by and its provisions construed and
enforced in accordance with the laws of the State of Delaware, as applied to
contracts between Delaware residents, entered into and to be performed entirely
within the State of Delaware, without regard to the conflict of laws principles
thereof.
Section 18. Subrogation.
In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
each Indemnitee, who shall execute all documents required and shall do all acts
that may be necessary to secure such rights and to enable the Company
effectively to bring suite to enforce such rights.
Section 19. Amendment and Termination.
No amendment, modification, termination or cancellation of this Agreement
shall be effective unless it is in writing signed by all parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver.
Section 20. Integration and Entire Agreement.
This Agreement sets forth the entire understanding between the parties
hereto and supersedes and merges all previous written and oral negotiations,
commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto.
Section 21. No Construction as Employment Agreement.
Nothing contained in this Agreement shall be construed as giving any
Indemnitee any right to be retained in the employ of the Company or any of its
subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
AIRGATE PCS, INC.
a Delaware corporation
By:
Title:
Address:
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INDEMNITEES
By:
Title:
By:
Title:
By:
Title:
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