EXHIBIT 10.3
WIRELESS, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "AGREEMENT") is made and
entered into this ____ day of ______, between Wireless, Inc., a Delaware
corporation (the "COMPANY"), and ___________________ ("INDEMNITEE").
WHEREAS, Indemnitee, a member of the Board of Directors or an
officer, employee or agent of the Company, performs a valuable service in such
capacity for the Company;
WHEREAS, the stockholders of the Company have adopted Bylaws
(the "BYLAWS") providing for the indemnification of the officers, directors,
employees and agents of the Company to the maximum extent authorized by Section
145 of the Delaware General Corporation Law, as amended (the "CODE");
WHEREAS, the Bylaws and the Code, by their non-exclusive
nature, permit contracts between the Company and the members of its Board of
Directors, officers, employees or agents with respect to indemnification of such
directors, officers, employees or agents;
WHEREAS, in accordance with the authorization as provided by
the Code, the Company either has purchased and presently maintains or intends to
purchase and maintain a policy or policies of Directors and Officers Liability
Insurance ("D & O INSURANCE") covering certain liabilities which may be incurred
by its directors and officers in the performance of their duties as directors
and officers of the Company;
WHEREAS, as a result of developments affecting the terms,
scope and availability of D & O Insurance there exists general uncertainty as to
the extent of protection afforded members of the Board of Directors or officers,
employees or agents by such D & O Insurance and by statutory and bylaw
indemnification provisions; and
WHEREAS, in order to induce Indemnitee to continue to serve as
a member of the Board of Directors, officer, employee or agent of the Company,
the Company has determined and agreed to enter into this contract with
Indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's continued
service as a director, officer, employee or agent after the date hereof, and for
other good and valid consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. INDEMNIFICATION OF INDEMNITEE. The Company hereby agrees to
hold harmless and indemnify Indemnitee to the fullest extent authorized or
permitted by the provisions of the Code, as may be amended from time to time.
2. ADDITIONAL INDEMNITY. Subject only to the exclusions set
forth in Sections 3 and 6(c) hereof, the Company hereby further agrees to hold
harmless and indemnify Indemnitee:
(a) against any and all expenses (including attorneys'
fees), witness fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee in connection with any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including an action
by or in the right of the Company) to which Indemnitee is, was or at
any time becomes a party, or is threatened to be made a party, by
reason of the fact that Indemnitee is, was or at any time becomes a
director, officer, employee or agent of the Company or any subsidiary
of the Company, or is or was serving or at any time serves at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to
Indemnitee by the Company under the non-exclusivity provisions of
Article VII, Section 6 of the Bylaws of the Company and the Code.
3. LIMITATIONS ON ADDITIONAL INDEMNITY.
(a) No indemnity pursuant to Section 2 hereof shall be paid
by the Company:
i) in respect to remuneration paid to Indemnitee
if it shall be determined by a final judgment or other final
adjudication that such remuneration was in violation of law;
ii) on account of any suit in which judgment is
rendered against Indemnitee for an accounting of profits
made from the purchase or sale by Indemnitee of securities
of the Company pursuant to the provisions of Section 16(b)
of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any federal, state or local
statutory law;
iii) on account of Indemnitee's conduct which is
finally adjudged to have been knowingly fraudulent or
deliberately dishonest or to constitute willful misconduct;
iv) on account of Indemnitee's conduct which is
the subject of an action, suit or proceeding described in
Section 6(c)(ii) hereof;
v) on account of any action, claim or proceeding
(other than a proceeding referred to in Section 7(b) hereof)
initiated by the Indemnitee unless such action, claim or
proceeding was authorized in the specific case by action of
the Board of Directors;
vi) if a final decision by a Court having
jurisdiction in the matter shall determine that such
indemnification is not lawful (and, in this respect, both
the Company and Indemnitee have been advised that the
Securities and Exchange Commission
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believes that indemnification for liabilities arising under
the federal securities laws is against public policy and is,
therefore, unenforceable and that claims for indemnification
should be submitted to appropriate courts for adjudication);
and
vii) except to the extent the aggregate of losses
to be indemnified thereunder exceeds the sum of (a) such
losses for which the Indemnitee is indemnified pursuant to
Section 1 hereof and (b) any additional amount paid to the
Indemnitee pursuant to any D & O Insurance purchased and
maintained by the Company.
(b) No indemnity pursuant to Section 1 or 2 hereof shall be
paid by the Company if the action, suit or proceeding with respect to
which a claim for indemnity hereunder is made arose from or is based
upon any of the following:
i) Any solicitation of proxies by Indemnitee, or
by a group of which he was or became a member consisting of
two or more persons that had agreed (whether formally or
informally and whether or not in writing) to act together
for the purpose of soliciting proxies, in opposition to any
solicitation of proxies approved by the Board of Directors.
ii) Any activities by Indemnitee that constitute a
breach of or default under any agreement between Indemnitee
and the Company.
4. CONTRIBUTION. If the indemnification provided in Sections 1
and 2 hereof is unavailable by reason of a Court decision described in Section
3(a)(vi) hereof based on grounds other than any of those set forth in paragraphs
(i) through (v) of Section 3 (a) hereof, then in respect of any threatened,
pending or completed action, suit or proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such action, suit or
proceeding), the Company shall contribute to the amount of expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and Indemnitee on the other hand from the transaction from which such
action, suit or proceeding arose, and (ii) the relative fault of the Company on
the one hand and of Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of Indemnitee on the other shall be determined by reference
to, among other things, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in
such expenses, judgments, fines or settlement amounts. The Company agrees that
it would not be just and equitable if contribution pursuant to this Section 4
were determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
5. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty
(30) days after receipt by Indemnitee of notice of the commencement of any
action, suit or proceeding, Indemnitee shall, if a claim in respect thereof is
to be made against the Company under this Agreement, notify the Company of the
commencement thereof; but Indemnitee's omission so to notify the Company will
not relieve the Company from any liability which it may have to
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Indemnitee otherwise than under this Agreement. With respect to any such action,
suit or proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
(a) The Company will be entitled to participate therein at
its own expense.
(b) Except as otherwise provided below, to the extent that
it may wish, the Company shall, jointly with any other indemnifying
party similarly notified, be entitled to assume the defense thereof,
with counsel reasonably satisfactory to Indemnitee. After notice from
the Company to Indemnitee of its election to assume the defense
thereof, the Company will not be liable to Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof, other than
reasonable costs of investigation or as otherwise provided below.
Indemnitee shall have the right to employ its own counsel in such
action, suit or proceeding, but the fees and expenses of such counsel
incurred after notice from the Company of the Company's assumption of
the defense thereof shall be at the expense of Indemnitee unless (i)
the employment of counsel by Indemnitee has been authorized by the
Company; (ii) Indemnitee shall have reasonably concluded that there
may be a conflict of interest between the Company and Indemnitee in
the conduct of the defense of such action; or (iii) the Company shall
not in fact have employed counsel to assume the defense of such
action; in each of which cases the fees and expenses of Indemnitee's
separate counsel shall be paid by the Company. The Company shall not
be entitled to assume the defense of any action, suit or proceeding
brought by or on behalf of the Company or as to which Indemnitee shall
have made the conclusion provided for in (ii) above.
(c) The Company shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent. The Company shall be
permitted to settle any action except that it shall not settle any
action or claim in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee's written consent. Neither
the Company nor Indemnitee will unreasonably withhold its consent to
any proposed settlement.
6. ADVANCEMENT AND REPAYMENT OF EXPENSES.
(a) In the event that Indemnitee employs his or her own
counsel pursuant to Sections 5(b)(i) through (iii) above, the Company
shall advance to Indemnitee, prior to any final disposition of any
threatened or pending action, suit or proceeding, whether civil,
criminal, administrative or investigative, any and all reasonable
expenses (including legal fees and expenses) incurred in investigating
or defending any such action, suit or proceeding within ten (10) days
after receiving from Indemnitee copies of invoices presented to
Indemnitee for such expenses.
(b) Indemnitee agrees that Indemnitee will reimburse the
Company for all reasonable expenses paid by the Company in
investigating or defending any civil or criminal action, suit or
proceeding against Indemnitee in the event and only to the extent it
shall be ultimately determined by a final judicial decision (from
which there is no right of appeal) that Indemnitee is not entitled,
under the provisions of the Code, the Bylaws, this Agreement or
otherwise, to be indemnified by the Company for such expenses.
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(c) Notwithstanding the foregoing, the Company shall not be
required to advance such expenses to Indemnitee in respect of any
action arising from or based upon any of the matters set forth in
subsection (b) of Section 3 or if Indemnitee (i) commences any action,
suit or proceeding as a plaintiff unless such advance is specifically
approved by a majority of the Board of Directors or (ii) is a party to
an action, suit or proceeding brought by the Company and approved by a
majority of the Board which alleges willful misappropriation of
corporate assets by Indemnitee, disclosure of confidential information
in violation of Indemnitee's fiduciary or contractual obligations to
the Company, or any other willful and deliberate breach in bad faith
of Indemnitee's duty to the Company or its shareholders.
7. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Company hereby in order to induce Indemnitee to continue as a
director, officer, employee or other agent of the Company, and
acknowledges that Indemnitee is relying upon this Agreement in
continuing in such capacity.
(b) In the event Indemnitee is required to bring any action
to enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Company shall reimburse Indemnitee for
all Indemnitee's reasonable fees and expenses, including attorney's
fees, in bringing and pursuing such action.
8. 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 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 suit to enforce such rights.
9. CONTINUATION OF OBLIGATIONS. All agreements and obligations
of the Company contained herein shall commence upon the date that Indemnitee
first became a member of the Board of Directors or an officer, employee or agent
of the Company, as the case may be, and shall continue during the period
Indemnitee is a director, officer, employee or agent of the Company (or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so long as
Indemnitee shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal or investigative,
by reason of the fact that Indemnitee was a director, officer, employee or agent
of the Company or serving in any other capacity referred to herein.
10. SURVIVAL OF RIGHTS. The rights conferred on Indemnitee by
this Agreement shall continue after Indemnitee has ceased to be a director,
officer, employee or other agent of the Company and shall inure to the benefit
of Indemnitee's heirs, executors and administrators.
11. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on
Indemnitee by this Agreement shall not be exclusive of any other right which
Indemnitee may have or hereafter acquire under any statute, provision of the
Company's Certificate of Incorporation or Bylaws, agreement, vote of
stockholders or directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding office; provided,
however, that this
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Agreement shall supersede and replace any prior indemnification agreements
entered into by and between the Company and Indemnitee and that any such prior
indemnification agreement shall be terminated upon the execution of this
Agreement.
12. SEPARABILITY. Each of the provisions of this Agreement is
a separate and distinct agreement and independent of the others, so that if any
or all of the provisions hereof shall be held to be invalid or unenforceable for
any reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof or the obligation of the Company
to indemnify the Indemnitee to the full extent provided by the Bylaws or the
Code.
13. GOVERNING LAW. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Delaware.
14. BINDING EFFECT. This Agreement shall be binding upon
Indemnitee and upon the Company, its successors and assigns, and shall inure to
the benefit of Indemnitee, his or her heirs, personal representatives and
assigns and to the benefit of the Company, its successors and assigns.
15. AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless it is in
writing and is signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
WIRELESS, INC.
a Delaware corporation
By:
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INDEMNITEE
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Address:
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