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EXHIBIT 10.44
INDEMNIFICATION AGREEMENT
This Agreement is made as of the __ day of ___________, 199_,
by and between NextWave Telecom Inc., a Delaware Corporation ("the Company"),
and the undersigned (the "Indemnitee"), with reference to the following facts:
The Indemnitee is currently serving as a Director and/or
Officer of the Company and the Company wishes the Indemnitee to continue in such
capacity. The Indemnitee is willing, under certain circumstances, to continue
serving as a Director and/or Officer of the Company. In this connection the
Company and the Indemnitee now agree they should enter into this Indemnification
Agreement in order to provide greater protection to Indemnitee against such
risks of service to the Company.
The Indemnitee has indicated that he or she may not be willing
to continue to serve as a Director and/or Officer of the Company and/or, at the
Company's request, as a director, officer, employee, trustee and/or agent of
another corporation, partnership, joint venture, trust or other enterprise in
the absence of indemnification in addition to that provided in the Restated
Certificate of Incorporation and the Bylaws of the Company;
Section 145 of the General Corporation Law of the State of
Delaware, under which Law the Company is organized,
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empowers corporations to indemnify a person serving as a director, officer,
employee or agent of the corporation and a person who serves at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise, and said
Section 145 and the By-Laws of the Company specify that the indemnification set
forth in said Section 145 and in the By-Laws, respectively, shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
In order to induce the Indemnitee to continue to serve as a
Director and/or Officer of the Company and in consideration of his continued
service, the Company hereby agrees to indemnify the Indemnitee as follows:
1. Indemnity. The Company will indemnify the Indemnitee, his
executors, administrators or assigns, for any Expenses (as defined below) which
the Indemnitee is or becomes legally obligated to pay in connection with any
Proceeding. As used in this Agreement the term "Proceeding" shall include any
threatened, pending or completed claim, action, suit or proceeding, whether
brought by or in the right of the Company or otherwise and whether of a civil,
criminal, administrative or
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investigative nature, in which the Indemnitee may be or may have been involved
as a party or otherwise, by reason of the fact that Indemnitee is or was a
director or officer of the Company, by reason of any actual or alleged error or
misstatement or misleading statement made or suffered by the Indemnitee, by
reason of any action taken by him or of any inaction on his part while acting as
such director or officer, or by reason of the fact that he was serving at the
request of the Company as a director, trustee, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise;
provided, that in each such case Indemnitee acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the Company, and, in the case of a criminal proceeding, in addition had no
reasonable cause to believe that his conduct was unlawful. As used in this
Agreement, the term "other enterprise" shall include (without limitation)
employee benefit plans and administrative committees thereof, and the term
"fines" shall include (without limitations) any excise tax assessed with respect
to any employee benefit plan.
2. Expenses. As used in this Agreement, the term
"Expenses" shall include, without limitation, damages, judgments, fines,
penalties, settlements and costs, attorneys' fees and
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disbursements and costs of attachment or similar bonds, investigations, and any
expenses of establishing a right to indemnification under this Agreement.
3. Enforcement. If a claim or request under this Agreement is
not paid by the Company, or on its behalf, within thirty days after a written
claim or request has been received by the Company, the Indemnitee may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and if successful in whole or in part, the Indemnitee shall
be entitled to be paid also the Expenses of prosecuting such suit. The Company
shall have the right to recoup from the Indemnitee the amount of any item or
items of Expenses theretofore paid by the Company pursuant to this Agreement, to
the extent such Expenses are not reasonable in nature or amounts; provided,
however, that the Company shall have the burden of proving such Expenses to be
unreasonable. The burden of proving that the Indemnitee is not entitled to
indemnification for any other reason shall be upon the Company.
4. 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 the Indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution
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of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
5. Exclusions. The Company shall not be liable under this
Agreement to pay any Expenses in connection with any claim made against the
Indemnitee:
(a) to the extent that payment is actually made
to the Indemnitee under a valid, enforceable and collectible
insurance policy;
(b) to the extent that the Indemnitee is
indemnified and actually paid otherwise than pursuant to this
Agreement;
(c) in connection with a judicial action by or
in the right of the Company, in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged to
be liable for negligence or misconduct in the performance of
his duty to the Company unless and only to the extent that any
court in which such action 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;
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(d) if it is proved by final judgment in a court
of law or other final adjudication to have been based upon or
attributable to the Indemnitee's in fact having gained any
personal profit or advantage to which he was not legally
entitled;
(e) for a disgorgement of profits made from the
purchase and sale by the Indemnitee of securities pursuant to
Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any state
statutory law or common law;
(f) brought about or contributed to by the
dishonesty of the Indemnitee seeking payment hereunder;
however, notwithstanding the foregoing, the Indemnitee shall
be protected under this Agreement as to any claims upon which
suit may be brought against him by reason of any alleged
dishonesty on his part, unless a judgment or other final
adjudication thereof adverse to the Indemnitee shall establish
that he committed (i) acts of active and deliberate
dishonesty, (ii) with actual
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dishonest purpose and intent, (iii) which acts were material
to the cause of action so adjudicated; or
(g) for any judgment, fine or penalty which the
Company is prohibited by applicable law from paying as
indemnity or for any other reason.
6. Indemnification of Expenses of Successful Party.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against any and all
Expenses incurred in connection therewith.
7. Partial Indemnification. If the Indemnitee is
entitled under any provision of this Agreement to indemnification by the Company
for some or a portion of Expenses, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify the Indemnitee for the portion
of such Expenses to which the Indemnitee is entitled.
8. Advance of Expenses. Expenses incurred by the
Indemnitee in connection with any Proceeding, except the amount of any
settlement, shall be paid by the Company in advance upon request of the
Indemnitee that the Company pay such Expenses.
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The Indemnitee hereby undertakes to repay to the Company the amount of any
Expenses theretofore paid by the Company to the extent that it is ultimately
determined that such Expenses were not reasonable or that the Indemnitee is not
entitled to indemnification.
9. Approval of Expenses. No Expenses for which indemnity
shall be sought under this Agreement, other than those in respect of judgments
and verdicts actually rendered, shall be incurred without the prior consent of
the Company, which consent shall not be unreasonably withheld.
10. Notice of Claim. The Indemnitee, as a condition
precedent to his right to be indemnified under this Agreement, shall give to the
Company notice in writing as soon as practicable of any claim made against him
for which indemnity will or could be sought under this Agreement. Notice to the
Company shall be given at its principal office and shall be directed to the
Corporate Secretary (or such other address as the Company shall designate in
writing to the Indemnitee); notice shall be deemed received if sent by prepaid
mail properly addressed, the date of such notice being the date postmarked. In
addition, the Indemnitee shall give the Company such information and cooperation
as it may reasonably require and as shall be within the Indemnitee's power.
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11. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
instrument.
12. Indemnification Hereunder Not Exclusive. Nothing
herein shall be deemed to diminish or otherwise restrict the Indemnitee's right
to indemnification under any provision of the Restated Certificate of
Incorporation or By-Laws of the Company and amendments thereto or under law.
13. Governing Law. This Agreement shall be governed by
and construed in accordance with Delaware law.
14. Saving Clause. Wherever there is conflict between any
provision of this Agreement and any applicable present or future statute, law or
regulation contrary to which the Company and the Indemnitee have no legal right
to contract, the latter shall prevail, but in such event the affected provisions
of this Agreement shall be curtailed and restricted only to the extent necessary
to bring them within applicable legal requirements.
15. Coverage. The provisions of this Agreement shall
apply with respect to the Indemnitee's service as a Director and/or Officer of
the Company prior to the date of this Agreement and with respect to all periods
of such service after
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the date of this Agreement, even though the Indemnitee may have ceased to be a
Director and/or Officer of the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and signed as of the day and year first above
written.
NEXTWAVE TELECOM INC.
By______________________
Its_____________________
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By______________________
Its_____________________