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EXHIBIT 10.3
CLEARWIRE CORPORATION
INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT (the "Agreement") is made as of
April________________________, 2004, by and between CLEARWIRE
CORPORATION (the
"Company"), a Delaware corporation, and , ("Indemnitee").
RECITALS
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.
AGREEMENT
NOW,
THEREFORE, the Company and Indemnitee hereby agree as set forth
below.
1. CERTAIN
DEFINITIONS.
(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" (as such
term is used in Sections 13(d)(3) and 14(d)(2) of the Securities
Exchange Act of
1934, as amended (the "Exchange Act")), other
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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 other.
(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 3(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 stockholder,
controlling person,
director, 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
stockholder, director, officer, employee, controlling person, 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
stockholder, director,
officer, employee, controlling person, 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
stockholder, director, officer, employee, controlling person, 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
2(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).
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(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 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.
INDEMNIFICATION.
(a) INDEMNIFICATION OF EXPENSES. 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 2(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
2(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 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
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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 (oth
