DIRECTOR’S
INDEMNIFICATION AGREEMENT
This
Director’s Indemnification Agreement
(“Agreement”) is made as of October 30, 2008 (the
“Effective Date”) by and between USA Mobility, Inc., a
Delaware corporation (the “ Company ”), and___,
who serves as a Director of the Company (“ Indemnitee
”).
WHEREAS, highly
competent persons have become more reluctant to serve corporations
as Directors unless they are provided with adequate protection
through insurance and/or indemnification against the risks of
claims being asserted against them arising out of their service to
and activities on behalf of such corporations; and
WHEREAS, the Board
of Directors of the Company (the “ Board ”) has
determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the
Company’s investors and that the Company should act to assure
such persons that there will be increased certainty of such
protection in the future; and
WHEREAS, the Board
has determined that, in order to help attract and retain qualified
individuals as Directors, the best interests of the Company and its
investors will be served by attempting to maintain, on an ongoing
basis, at the Company’s sole expense, insurance to protect
persons serving the Company and its subsidiaries as directors and
in other capacities from certain liabilities. Although the
furnishing of such insurance has been a customary and widespread
practice among United States-based corporations and other business
enterprises for many years, the Company believes that, given
current market conditions and trends, such insurance may be
available to it in the future only at higher premiums and with more
exclusions. At the same time, directors, in service to corporations
or business enterprises are being increasingly subjected to
expensive and time-consuming litigation; and
WHEREAS, the Board
has determined that, in order to help attract and retain qualified
individuals as directors and in other capacities, the best
interests of the Company and its investors will be served by
assuring such individuals that the Company will indemnify them to
the maximum extent permitted by law; and
WHEREAS, the
Amended and Restated Certificate of Incorporation (the “
Certificate of Incorporation ”) and the By-Laws (the
“ By-Laws ”) of the Company require
indemnification of the officers and directors of the Company, and
Indemnitee may also be entitled to indemnification pursuant to the
Delaware General Corporation Law (“ DGCL ”);
and
WHEREAS, the
Certificate of Incorporation, the By-Laws and the DGCL expressly
provide that the indemnification provisions set forth therein are
not exclusive, and thereby contemplate that contracts may be
entered into between the Company and
members of the
Board with respect to indemnification and the advancement of
defense costs; and
WHEREAS, it
therefore is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance
defense costs on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they will not be so
indemnified; and
WHEREAS, this
Agreement is a supplement to and in furtherance of the Certificate
of Incorporation, By-Laws and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor shall
it be deemed to diminish or abrogate any rights of Indemnitee
thereunder; and
WHEREAS, the Board
recognizes that the Indemnitee does not regard the protection
available under the Company’s Certificate of Incorporation,
the By-Laws and insurance program as adequate in the present
circumstances, and may not be willing to serve or continue to serve
as a director and/or in such other capacity as the Company may
request without adequate protection, and the Company desires
Indemnitee to serve in such capacity; and
WHEREAS,
Indemnitee is willing to serve as a member of the Board of
Directors (and any committee thereof) of the Company, on the
condition that he or she be indemnified as provided for
herein.
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
1.
Services to the Company. Indemnitee will serve or continue
to serve, at the will of the Company, as a Director of the Company
for so long as Indemnitee is duly elected or appointed or until
Indemnitee tenders his or her resignation. This Agreement shall not
serve as a binding commitment on the part of Indemnitee to continue
to serve in such capacity, or on the part of the Company to cause
him to be nominated to successive terms as a Director or to not
otherwise be removed for cause as permitted under law.
2.
Definitions. As used in this Agreement:
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(a)
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A “ Change in Control
” shall be deemed to occur upon the earliest to occur after
the date of this Agreement of any of the following
events:
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(i)
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Any Person (excluding any employee
benefit plan of the Company or any subsidiary of the Company) is or
becomes the Beneficial Owner, directly or indirectly, of securities
of the Company representing fifty percent (50%) or more of the
combined voting power of the Company’s outstanding securities
then entitled ordinarily to vote for the election of Directors;
or
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(ii)
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During any period of two
(2) consecutive years commencing on or after the Effective
Date, the individuals who at the beginning of such period
constitute the Board or any individuals who would be Continuing
Directors (as defined below) cease for any reason to constitute at
least a majority thereof; or
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(iii)
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The Board shall approve a sale of
all or substantially all of the assets of the Company;
or
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(iv)
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The Board shall approve any merger,
consolidation, or like business combination or reorganization of
the Company, the consummation of which would result in the
occurrence of any event described in clause (i) or (ii),
above.
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(b)
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“ Continuing Directors
” shall mean the directors of the Company in office on the
Effective Date and any successor to any such director and any
additional director who after the Effective Date (i) was
nominated or selected by a majority of the Continuing Directors in
office at the time of his or her nomination or selection and
(ii) who is not an “affiliate” or
“associate” (as defined in Regulation 12B
promulgated under the Exchange Act) of any person who is the
beneficial owner, directly or indirectly, of securities
representing ten percent (10%) or more of the combined voting power
of the Company’s outstanding securities then entitled
ordinarily to vote for the election of directors.
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(c)
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“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as
amended.
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(d)
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“ Person ” shall
have the meaning set forth in Sections 13(d) and 14(d) of the
Exchange Act; provided, however, that Person shall exclude
(i) the Company and (ii) any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
a subsidiary of the Company.
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(e)
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“ Beneficial Owner
” shall have the meaning given to such term in
Rule 13d-3 issued under the Exchange Act; provided, however,
that Beneficial Owner shall exclude any Person becoming a
Beneficial Owner by reason of the stockholders of the Company
approving a merger of the Company with another entity.
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(f)
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“ Corporate Status
” shall describe the status of a person who is or was a
director, officer, trustee, partner, member, fiduciary, employee or
agent of the Company or of any other Enterprise (as defined below),
which such person is or was serving at the request of the
Company.
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(g)
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“ Disinterested
Director ” shall mean a director of the Company who is
not and was not a party to the Proceeding (as defined below) in
respect of which indemnification is sought by
Indemnitee.
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(h)
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“ Enterprise ”
shall mean any corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other enterprise of
which
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Indemnitee is or was serving at the
request of the Company as a director, officer, trustee,
administrator, partner, member, fiduciary, employee or
agent.
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(i)
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“ Expenses ”
shall include all reasonable attorneys’ fees, retainers,
court costs, transcript costs, fees of experts and accountants,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types and amounts
customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding (as
defined below). Expenses also shall include costs incurred in
connection with any appeal resulting from any Proceeding (as
defined below), including, without limitation, the premium,
security for, and other costs relating to any bond, supersedeas
bond, or other appeal bond or its equivalent. Expenses, however,
shall not include amounts paid in settlement by Indemnitee or the
amount of judgments or fines against Indemnitee.
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(j)
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References to “ fines
” shall include any excise tax assessed on a person with
respect to any employee benefit plan pursuant to applicable
law.
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(k)
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References to “ serving at
the request of the Company ” shall include any service
provided at the request of the Company as a director, officer,
trustee, administrator, partner, member, fiduciary, employee or
agent of the Company which imposes duties on, or involves services
by, such director, officer, trustee, administrator, partner,
member, fiduciary, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries.
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(l)
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Any action taken or omitted to be
taken by a person for a purpose which he or she reasonably believed
to be in the interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have been taken in “
good faith ” and for a purpose which is “
not opposed to the best interests of the Company” , as
such terms are referred to in this Agreement and used in the
DGCL.
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(m)
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The term “ Proceeding
” shall include any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of
the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, including any related
appeal, in which Indemnitee was, is or will be involved as a party
or witness or otherwise by reason of the fact that Indemnitee is or
was a director, officer, trustee, administrator, partner, member,
fiduciary, employee or agent of the Company, by reason of any
action taken or not taken by him or her while acting as director,
officer, trustee, administrator, partner, member, fiduciary,
employee or agent of the Company, or by reason of the fact that he
or she is or was serving at the request of the Company as a
director, officer, trustee, administrator, partner, member,
fiduciary, employee or agent of any other Enterprise, in each case
whether or not serving in such capacity at the time any liability
or expense is incurred for
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which indemnification,
reimbursement, or advancement of expenses can be provided under
this Agreement.
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(n)
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“ Independent Counsel
” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the past five (5) years has been, retained to
represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters
concerning the Indemnitee under this Agreement, or other
indemnitees under similar indemnification agreements), or
(ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the
term “Independent Counsel” shall not include any person
who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
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3.
Indemnity in Third-Party Proceedings. The Company shall
indemnify and hold harmless Indemnitee in accordance with the
provisions of this Section 3 if Indemnitee is made, or is
threatened to be made, a party to or a participant in (as a witness
or otherwise) any Proceeding, other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant
to this Section 3, Indemnitee shall be indemnified and held
harmless against all judgments, fines, penalties, amounts paid in
settlement (if such settlement is approved in writing in advance by
the Company, which approval shall not be unreasonably withheld)
(including, without limitation, all interest, assessments and other
charges paid or payable in connection with or in respect of any of
the foregoing) (collectively, “ Losses ”) and
Expenses actually and reasonably incurred by Indemnitee or on his
or her behalf in connection with such Proceeding or any action,
discovery event, claim, issue or matter therein or related thereto,
if Indemnitee acted in good faith, for a purpose which he or she
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 or her
conduct was unlawful.
4.
Indemnity in Proceedings by or in the Right of the Company.
The Company shall indemnify Indemnitee in accordance with the
provisions of this Section 4 if Indemnitee is made, or is
threatened to be made, a party to or a participant in (as a witness
or otherwise) any Proceeding by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 4,
Indemnitee shall be indemnified and held harmless against all
Expenses actually and reasonably incurred by him or her or on his
or her behalf in connection with the defense or settlement of such
Proceeding or any action, discovery event, claim, issue or matter
therein or related thereto, if Indemnitee acted in good faith, for
a purpose which he or she reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification,
however, shall be made under this Section 4 in respect of any
claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company, unless and only to the extent
that the court in which the Proceeding was brought or, if no
Proceeding was brought in a court, any court of competent
jurisdiction, determines upon application that, in view of
all
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the
circumstances of the case, Indemnitee fairly and reasonably is
entitled to indemnification for such portion of the Expenses as the
court deems proper.
5.
Indemnification for Expenses Where Indemnitee is Wholly or
Partly Successful. Notwithstanding and in addition to any other
provisions of this Agreement, to the extent that Indemnitee is a
party to a Proceeding and is successful, on the merits or
otherwise, in the defense of any claim, issue or matter therein,
the Company shall indemnify and hold harmless Indemnitee against
all Expenses actually and reasonably incurred by him or her or on
his or her behalf in connection with such successful defense. For
the avoidance of doubt, if Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or her or on his
or her behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section 5 and, without
limitation, the termination of any claim, issue or matter in such a
Proceeding by withdrawal or dismissal, with or without prejudice,
shall be deemed to be a successful result as to such claim, issue
or matter.
6.
Indemnification for Expenses of a Witness. Notwithstanding
and in addition to any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his or her Corporate
Status, a witness in or otherwise incurs Expenses in connection
with any Proceeding to which Indemnitee is not a party, he or she
shall be indemnified and held harmless by the Company against all
Expenses actually and reasonably incurred by him or her or on his
or her behalf in connection therewith.
7.
Additional Indemnification.
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(a)
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Notwithstanding any limitation in
Sections 3, 4, or 5 hereof or in Section 145 of the DGCL
or other applicable statutory provision, the Company and the shall
indemnify Indemnitee to the fullest extent permitted by law if
Indemnitee is made, or is threatened to be made, a party to any
Proceeding (including a Proceeding by or in the right of the
Company to procure a judgment in its favor) against all Losses and
Expenses actually and reasonably incurred by Indemnitee in
connection with the Proceeding. No indemnification shall be made
under this Section 7(a) on account of Indemnitee’s conduct
which constitutes a breach of Indemnitee’s duty of loyalty to
the Company or its investors or is an act or omission not in good
faith or which involves intentional misconduct or a knowing
violation of the law.
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(b)
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For purposes of Sections 7(a),
the meaning of the phrase “ to the fullest extent
permitted by law ” shall include, but not be limited
to:
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i.
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to the fullest extent authorized or
permitted by the then-applicable provisions of the DGCL or other
applicable statutory provision, that authorize or contemplate
indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL or other applicable
statutory provision, and
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ii.
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to the fullest extent authorized or
permitted by any amendments to or replacements of the DGCL or other
applicable statutory provision, adopted after the date of this
Agreement that increase the extent to which a corporation limited
liability company or partnership, as applicable may indemnify its
officers, directors or persons holding similar fiduciary
responsibilities.
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(c)
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Indemnitee shall be entitled to the
prompt payment of all Expenses reasonably incurred in enforcing
successfully (fully or partially) this Agreement.
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8.
Exclusions. Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against
Indemnitee:
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(a)
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for which payment actually has been
received by or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess
beyond the amount actually received under such insurance policy or
other indemnity provision; or
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(b)
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for an accounting of profits made
from the purchase and sale (or sale and purchase) by Indemnitee of
securities of the Company or any subsidiary of the Company within
the meaning of Section 16(b) of the Exchange Act, as amended, or
similar provisions of state blue sky law, state statutory law or
common law; or
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(c)
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prior to a Change in Control, in
connection with any Proceeding (or any part of any Proceeding)
initiated by Indemnitee, including any Proceeding (or any part of
any Proceeding) initiated by Indemnitee against the Company (other
than any Proceeding referred to in Sections 13(d) or (e) below
or any other Proceeding commenced to recover any Expenses referred
to in Section 7(c) above) or its directors, officers, employees or
other indemnitees, unless (i) the Board authorized the
Proceeding (or any part of any Proceeding) prior to its initiation
or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under
applicable law; or
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(d)
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if the funds at issue were paid
pursuant to a settlement approved by a court and indemnification
would be inconsistent with any condition with respect to
indemnification expressly imposed by the court in approving the
settlement.
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9.
Advances of Expenses; Defense of Claim.
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(a)
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Notwithstanding any provision of
this Agreement to the contrary, the Indemnitee shall be entitled to
advances of Expenses incurred by him or her or on his or her behalf
in connection with a Proceeding that Indemnitee claims is covered
by Sections 3 and 4 hereof, prior to a final determination of
eligibility for indemnification and prior to the final disposition
of the Proceeding, upon the execution and delivery to the
Co
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