INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT (the
“Agreement”) is made as of
, 2008, by and between CLEARWIRE CORPORATION (the
“Company”), a Delaware corporation, and
, (“Indemnitee”).
A.
The Company desires to attract and retain the involvement of highly
qualified individuals, such as Indemnitee, to serve the Company
and, in part, in order to induce Indemnitee to be involved with the
Company.
B.
The Company and Indemnitee each recognize the continued difficulty
in obtaining liability insurance for its directors, officers,
employees, agents and fiduciaries, the significant increases in the
cost of such insurance and the general reductions in the coverage
of such insurance.
C.
The Company and Indemnitee each further recognize the substantial
increase in corporate litigation in general, subjecting directors,
officers, employees, agents and fiduciaries to expensive litigation
risks at the same time as the availability and coverage of
liability insurance has been severely limited.
D.
In view of the considerations set forth above, the Company desires
that Indemnitee be indemnified by the Company as set forth
herein.
Now, therefore , the Company
and Indemnitee hereby agree as set forth below.
(a) “Affiliate” of an individual, joint
venture, corporation, limited liability company, trust,
unincorporated organization or other entity (each a
“Person”) means a Person that directly or indirectly
through one or more intermediaries, controls, is controlled by, or
is under common control with, the first Person, and with respect to
a natural person includes any child, stepchild, grandchild, parent,
stepparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law, and
includes adoptive relationships. “Controlled by” and
“under common control with” means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through
the ownership of voting securities, by contract or credit
arrangement, as trustee or executor, or otherwise.
(b) “ Change in Control ” shall
mean, and shall be deemed to have occurred if, on or after the date
of this Agreement, (i) any “person” or
“group” (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”)),
other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company acting in such capacity 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, becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than
thirty percent (30%) 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 (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 (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 or by being converted
into Voting Securities of the surviving entity) at least two-thirds
(2/3) 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 related transactions) all or
substantially all of the Company’s assets.
(c) “ Claim ” shall mean any
threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry
or investigation that Indemnitee believes might lead to the
institution of any such action, suit, proceeding or alternative
dispute resolution mechanism, whether civil, criminal,
administrative, investigative or otherwise.
(d) References to the “ Company ”
shall include, in addition to Clearwire Corporation, any resulting
or 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,
control persons, stockholders, or fiduciaries, so that if
Indemnitee is or was or may be deemed a director, officer,
employee, agent, control person, stockholder or fiduciary of such
constituent corporation, or is or was or may be deemed to be
serving at the request of such constituent corporation as a
director, officer, employee, control person, stockholder, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, Indemnitee shall
stand in the same position under the provisions of this Agreement
with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation
if its separate existence had continued.
(e) “ Expenses ” shall mean any
and all expenses (including attorneys’ fees and all other
costs, expenses and obligations incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, to be a witness in
or to participate in, any action, suit, proceeding, alternative
dispute resolution mechanism, hearing, inquiry or investigation),
judgments, losses, fines, penalties and amounts paid in settlement
(if such settlement is approved in advance by the Company, which
approval
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shall not be
unreasonably withheld) of any Claim regarding any Indemnifiable
Event 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, including all interest, assessments
and other charges paid or payable in connection with or in respect
of such expenses.
(f) “ Expense Advance ” shall mean
an advance payment of Expenses to Indemnitee pursuant to
Section 4(a).
(g) “ Indemnifiable Event ” shall
mean any event or occurrence in any way resulting from, arising out
of or in connection with, based upon or directly related to the
fact that Indemnitee is or was a director, officer, employee, agent
or fiduciary of the Company, or any subsidiary of the Company, or
by reason of (or arising in part or in whole out of) any event or
occurrence related to (a) the fact that Indemnitee is or was
or may be deemed a director, officer, employee, agent or fiduciary
of the Company, or any subsidiary of the Company, or (b) is or
was or may be deemed to be serving at the request of the Company as
a director, officer, employee, agent or fiduciary of another
corporation, partnership, limited liability company, joint venture,
trust or other enterprise, or (c) to the fullest extent
permitted by applicable law, any alleged breach by Indemnitee of
his or her fiduciary duty as a director or officer of the Company
or any of its subsidiaries, or (d) by reason of any action or
inaction on the part of Indemnitee while serving in the capacity of
a director, officer, employee, agent or fiduciary of the Company,
or any subsidiary of the Company, 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 of 1933, as amended (the “Securities
Act”), the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise or (e) which
relates directly or indirectly to the registration, purchase, sale
or ownership of any securities of the Company or to any fiduciary
obligation owed with respect thereto or (f) as a direct or
indirect result of any Claim made by any stockholder of the Company
against Indemnitee and arising out of or related to any round of
financing of the Company (including but not limited to Claims
regarding non-participation, or non-prorata participation, in such
round by such stockholder), or (g) made by a third party
against Indemnitee based on any misstatement or omission of a
material fact by the Company in violation of any duty of disclosure
imposed on the Company by federal or state securities or common
laws.
(h) References to the “ Indemnitee
” shall include, in addition to
, his employees, agents, spouse and their respective Affiliates,
including, without limitation, any of such Persons who may be
liable within the meaning of Section 15 of the Securities Act,
or Section 20 of the Exchange Act.
(i) “ Independent Legal Counsel ”
shall mean an attorney or firm of attorneys, selected in accordance
with the provisions of Section 3(c) hereof, who shall not have
otherwise performed services for the Company or Indemnitee within
the last three (3) years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of
other indemnitees under similar indemnity agreements).
(j) References to “ other enterprises
” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on
Indemnitee with respect to an
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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 or fiduciary with respect to an employee benefit
plan, its participants or its beneficiaries; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in the interest of the participants and beneficiaries of an
employee benefit plan, 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.
(k) “ 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 Indemnitee is seeking indemnification,
or Independent Legal Counsel.
(l)
“ Voting Securities ” shall mean any
securities of the Company that vote generally in the election of
directors.
2. Agreement to Serve . Indemnitee agrees to serve or
continue to serve as an officer and/or member of the board of
directors of the Company for so long as he or she is duly elected
or appointed or until such time as he or she tenders his or her
resignation in writing.
(a) Indemnification of Expenses . Subject to Section
3(b) below, the Company shall indemnify, defend and hold harmless
Indemnitee to the fullest extent permitted by law if Indemnitee was
or is or becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant
in, any Claim by reason of (or arising in part out of any
Indemnifiable Event against 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 thirty (30) business days after written demand by
Indemnitee therefor is presented to the Company.
(b) Reviewing Party . Notwithstanding the foregoing,
(i) the obligations of the Company under Section 3(a)
shall be subject to the condition that the Reviewing Party shall
not have determined (in a written opinion, in any case in which the
Independent Legal Counsel referred to in Section 3(c) 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 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
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with respect
thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee’s 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, 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. If there has been no
determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee 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. Absent such
litigation, any determination by the Reviewing Party shall be
conclusive and binding on the Company and Indemnitee.
(c) Change in Control . The Company agrees that if
there is a Change in Control 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 Indemnitee to payments
of Expenses and Expense Advances under this Agreement or any other
agreement or under the Company’s Certificate of
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