Exhibit 10.76
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (this
“Agreement”) is made and entered into this 15th day of
January, 2009, by and between
[ ]
(the “Indemnitee”) and SBA Communications Corporation,
a Florida corporation (the “Corporation”).
WITNESSETH
WHEREAS , the Board of Directors of the Corporation (the
“Board of Directors”) has reviewed and analyzed the
protection from liability available to directors or officers of the
Corporation (hereinafter, “Directors” or
“Officers”) and its subsidiaries under the
Corporation’s existing corporate documents and applicable
law; and
WHEREAS , increases in corporate litigation subjects
Directors and Officers to expensive litigation risks at the same
time that the availability of directors’ and officers’
liability insurance has been limited; and
WHEREAS , the Board of Directors has determined that the
protection offered by the Corporation’s existing corporate
documents, applicable law, and liability insurance is not
sufficient to fully protect its Directors or Officers from
liability; and
WHEREAS , it is essential to the Corporation to attract
and retain the most capable persons available as Directors and/or
Officers; and
WHEREAS , the Board of Directors has determined that
highly competent persons will be difficult to attract and retain as
Directors and/or Officers unless they are adequately protected
against liabilities incurred in performance of their duties in such
capacity; and
WHEREAS , the Board of Directors has determined that the
use of indemnification agreements will allow the Corporation to
offer additional appropriate protection from liability to its
Directors or Officers; and
WHEREAS , the Indemnitee is a Director and/or Officer;
and
WHEREAS, the indemnification and advancement provisions
of Section 607.0850 of the Florida Business Corporation Act
(the “FBCA”), Article VIII of the bylaws of the
Corporation (the “Bylaws”), and Article VII of the
Articles of Incorporation of the Corporation (the “Articles
of Incorporation”) expressly provide that they are
non-exclusive; and
NOW THEREFORE,
in consideration of the
Indemnitee’s services to the Corporation, the mutual
agreements and covenants contained herein, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1
Section 1. Definitions .
For purposes of this Agreement:
(a) “
Change in Control ” shall mean, and a Change of
Control 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) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “ Act
”)), other than (A) a trustee or other fiduciary
holding securities under an employee benefit plan of one or more of
the Corporation, or any of its subsidiaries, as the case may be,
acting in such capacity or (B) a corporation owned
directly or indirectly by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of
the Corporation, becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Corporation representing more than thirty three
percent (33%) of the total voting power represented by the
Corporation’s then outstanding Voting Securities (as defined
below), (ii) during any period of two (2) consecutive
years, individuals who at the beginning of such period constitute
the Board of Directors and any new director whose election by the
Board of Directors or nomination for election by the
Corporation’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, (iii) the stockholders of the Corporation approve
a merger or consolidation of the Corporation with any other
corporation other than a merger or consolidation that would
result in the Voting Securities of the Corporation outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities
of the surviving entity) at least eighty percent (80%) of the
total voting power represented by the Voting Securities of the
Corporation or such surviving entity outstanding immediately after
such merger or consolidation, (iv) the stockholders of the
Corporation approve a plan of complete liquidation of the
Corporation or an agreement for the sale or disposition by the
Corporation of (in one transaction or a series of related
transactions) all or substantially all of the Corporation’s
assets, or (v) the Corporation shall file or have filed
against it, and such filing shall not be dismissed, any bankruptcy,
insolvency or dissolution proceedings, or a trustee,
administrator or creditors committee shall be appointed to manage
or supervise the affairs of the Corporation.
(b) “ Corporate
Status ” describes the status of a person who is
serving or has served (i) as a director or officer of the
Corporation, (ii) in any capacity with respect to any employee
benefit plan of the Corporation, or (iii) as a director,
partner, trustee, officer, employee or agent of any other Entity at
the request of the Corporation. For purposes of this Agreement, an
officer or director of the Corporation who is serving or has served
as a director, partner, trustee, officer, employee or agent of a
Subsidiary shall be deemed to be serving at the request of the
Corporation.
(c) “ Disinterested
Director ” means a director of the Corporation who is
not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) “ Effective
Date ” means the date first listed above.
2
(e) “ Entity
” shall mean any corporation, partnership, limited liability
company, joint venture, foundation, association, organization or
other legal entity.
(f) “ Expenses
” shall mean all fees, costs and expenses incurred in
connection with any Proceeding (as defined below), including,
without limitation, attorneys’ fees, disbursements and
retainers, fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without
limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services, and other
disbursements and expenses.
(g) “ Independent
Counsel ” means a law firm, or a member of a law
firm, that is experienced in matters of corporate law and neither
presently is, nor in the past five years has been, retained to
represent: (i) the Corporation or Indemnitee in any matter
material to either such party, 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 Corporation
or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(h) “
Liabilities ” shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
paid in settlement.
(i) “ Proceeding
” includes any threatened, pending or completed action, suit,
arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other proceeding,
whether civil, criminal, administrative or investigative, including
appeals, except one initiated by an Indemnitee pursuant to
Section 10 or Section 13(b) of this Agreement to enforce
his rights under this Agreement.
(j) “ Subsidiary
” shall mean any Entity of which the Corporation owns (either
directly or through or together with another Subsidiary of the
Corporation) either (i) a general partnership, managing
membership or other similar interest or (ii) fifty percent
(50%) or more of the (A) voting power of the voting
capital equity interests of such Entity, or (B) outstanding
voting capital stock or other voting equity interests of such
Entity.
(k) “ Voting
Securities ” means securities of the Corporation that
entitle the holder to vote for the election of
Directors.
Section 2. Services by
Indemnitee . In consideration of the Corporation’s
covenants and commitments hereunder, Indemnitee agrees to continue
to serve as a Director or Officer. However, this Agreement shall
not impose any obligation on Indemnitee or the Corporation to
continue Indemnitee’s service to the Corporation beyond any
period otherwise required by law or by other agreements or
commitments of the parties, if any.
3
Section 3. Agreement to
Indemnify . The Corporation agrees to indemnify Indemnitee as
follows:
(a) Subject to the exceptions
contained in Section 4 below, if Indemnitee was or is a party
or is threatened to be made a party to any Proceeding (other than
an action by or in the right of the Corporation) by reason of
Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Corporation against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as “ Indemnifiable Expenses
” and “ Indemnifiable Liabilities
,” respectively, and collectively as “
Indemnifiable Amounts ”) if (i) Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in, or not opposed to, the best interests of the Corporation,
and (ii) with respect to any criminal action or proceeding,
Indemnitee had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(b) Subject to the exceptions
contained in Section 4 below, if Indemnitee was or is a party
or is threatened to be made a party to any Proceeding by or in the
right of the Corporation to procure a judgment in its favor by
reason of Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Corporation against all Indemnifiable Expenses
and amounts paid in settlement if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except that no
indemnification shall be made under this subsection in respect of
any claim, issue or matter as to which Indemnitee shall have been
adjudged by a court of competent jurisdiction that Indemnitee is
liable to the Corporation, unless, and only to the extent that, the
court in which such Proceeding was brought or another court of
competent jurisdiction determines upon application that in view of
all the circumstances of the case, that Indemnitee is fairly and
reasonably entitled to indemnity for such Indemnifiable Expenses
and amounts paid in settlement, then Indemnitee shall be entitled
to payment in such amount as such court deems proper.
(c) If Indemnitee, in connection
with Indemnitee’s Corporate Status, is compelled or asked to
be a witness in connection with any Proceeding but is not otherwise
a party or threatened to be made a party to such Proceeding,
Indemnitee shall be indemnified by the Corporation against all
Indemnifiable Expenses.
(d) Notwithstanding the exceptions
listed in Section 4 below, to the extent that Indemnitee has
been successful on the merits or otherwise in defense of any
Proceeding referred to in subsections 3(a) or 3(b), or in defense
of any claim, issue, or matter therein, Indemnitee shall be
indemnified by the Corporation against Indemnifiable Expenses
actually and reasonably incurred by Indemnitee in connection
therewith.
(e) If Indemnitee is entitled under
any provisions of this Agreement to indemnification by the
Corporation for some or a portion of Indemnifiable Amounts but not,
however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such
Indemnifiable Amounts to which Indemnitee is entitled.
4
(f) Good Faith Definition .
For purposes of this Section 3 only, the Indemnitee shall be
deemed to have acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal Proceeding, to
have had no reasonable cause to believe the Indemnitee’s
conduct was unlawful, if such action was based on a reasonable
reliance upon any of the following: (a) the records or books
of the Corporation or applicable Entity, including financial
statements, supplied to the Indemnitee by the officers of such
Entity in the course of their duties; (b) the advice of legal
counsel for the Corporation or the applicable Entity; or
(c) information or records given in reports made to the
Corporation or the applicable Entity by it’s independent
certified public accountant or by an appraiser or other expert
selected with reasonable care by such entity. The provisions of
this Section 3(f) shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee
may be deemed to have met the applicable standard of conduct set
forth in this Section 3.
Section 4. Exceptions to
Indemnification . Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all
circumstances unless it has been determined in accordance with
Section 7 that, in connection with the subject of the
Proceeding out of which the claim for indemnification has arisen, a
judgment or other final adjudication establishes that his or her
actions, or omissions to act, were material to the cause of action
so adjudicated and constitute:
(i) a violation of the criminal law,
unless the Indemnitee had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful;
(ii) a transaction from which
Indemnitee derived an improper personal benefit;
(iii) in the event the Indemnitee is
a director, a circumstance under which the liability provisions of
Section 607.0834 of the FBCA are applicable; or
(iv) willful misconduct or a
conscious disregard for the best interests of the Corporation, in
each case, in a Proceeding by or in the right of the Corporation to
procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
Section 5. Advancement of
Expenses . The Corporation shall advance all Indemnifiable
Expenses within thirty (30) days after the receipt by the
Corporation of a written request from Indemnitee for such
advancement and on a current basis thereafter, whether prior to or
after final disposition of the underlying Proceeding. Such written
request shall be accompanied by evidence of the Indemnifiable
Expenses incurred by Indemnitee and shall include a written
undertaking by or on behalf of Indemnitee to repay any and all
amounts advanced if it shall ultimately be determined that
Indemnitee is not entitled to indemnification by the Corporation
under this Agreement. Indemnitee’s
5
repayment undertaking shall be unsecured and
interest-free. However, advancement of Indemnifiable Expenses shall
not be made to Indemnitee if a judgment or other final adjudication
establishes that his or her actions, or omissions to act, were
material to the cause of action so adjudicated and
constitute:
(a) A violation of the criminal law,
unless the Indemnitee had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful;
(b) A transaction from which
Indemnitee derived an improper personal benefit;
(c) In the event the Indemnitee is a
director, a circumstance under which the liability provisions of
Section 607.0834 of the FBCA are applicable; or
(d) Willful misconduct or a
conscious disregard for the best interests of the Corporation in a
Proceeding by or in the right of the Corporation to procure a
judgment in its favor or in a proceeding by or in the right of a
shareholder.
Section 6. Defense of the
Underlying Proceeding .
(a) Notice by Indemnitee .
Upon being served with any summons, citation, subpoena, complaint,
indictment, information, or other document relating to any
Proceeding which may result in the payment of Indemnifiable Amounts
or the advancement of Indemnifiable Expenses hereunder, Indemnitee
shall notify the Corporation promptly, but in all events no later
than the earlier of (i) fourteen (14) days after actual
receipt or (ii) as soon as necessary after actual receipt to
prevent the Corporation from being materially and adversely
prejudiced by late notice.
(b) Option to Control Defense
. Subject to the provisions of Section 6(c), in the event the
Corporation is obligated to advance Indemnifiable Expenses under
Section 5, the Corporation shall have the right to participate
in any Proceeding and, at its option, assume the defense of any
Proceeding with counsel approved by Indemnitee (which approval
shall not be unreasonably withheld or delayed), upon the delivery
to Indemnitee of written notice of its election to do so. However,
the Indemnitee shall have the right to effectively participate in
the defense and/or settlement of such Proceeding, including
receiving copies of all correspondence and participating in all
meetings and teleconferences concerning the Proceeding. In no event
shall the Corporation consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise without the
prior written consent of the Indemnitee, which consent shall not be
unreasonably withheld or delayed.
(c) Limitation of Obligation to
Reimburse Defense Expenses . In the event the Corporation
assumes the defense of any Proceeding pursuant to
Section 6(b), the Corporation will not be liable to Indemnitee
under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same Proceeding; provided that
(i) the Corporation shall indemnify Indemnitee for reasonable
costs and expenses of counsel for Indemnitee to monitor the
Proceeding (provided, however, that such counsel
6
for Indemnitee will not appear as counsel of
record in any such Proceeding) and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized
by the Corporation, (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the
Corporation and Indemnitee in the conduct of any such defense, or
(C) the Corporation shall not continue to retain the approved
counsel to defend such Proceeding, then the fees and expenses of
Indemnitee’s counsel shall be at the expense of the
Corporation. Except as otherwise provided by Section 6(d)
below, the Corporation’s obligation to indemnify Indemnitee
with respect to legal fees shall be limited to the fees charged by
counsel selected by Indemnitee and all other persons similarly
entitled to indemnification by the Corporation in the same
Proceeding on account of their Corporate Status to defend the
interests of all such persons entitled to
indemnification.
(d) Indemnitee’s Right to
Individual Counsel . Notwithstanding the provisions of
Section 6(c) above, if in a Proceeding to which Indemnitee is
a party by reason of Indemnitee’s Corporate Status,
Indemnitee reasonably concludes that it may have separate defenses
or counterclaims to assert with respect to any issue which may not
be consistent with the position of other defendants in such
Proceeding, Indemnitee shall be entitled to be represented by
separate legal counsel of Indemnitee’s choice at the expense
of the Corporation. In addition, if the Corporation fails to comply
with any of its obligations under this Agreement or in the event
that the Corporation or any other person takes any action to
declare all or any part of this Agreement void or unenforceable, or
institutes any action, suit or proceeding to deny or to recover
from Indemnitee the benefits intended to be provided to Indemnitee
hereunder, Indemnitee shall have the right to retain counsel of
Indemnitee’s choice, at the expense of the Corporation, to
represent Indemnitee in connection with any such matter.
Section 7. Procedure for
Determination of Entitlement to Indemnification .
(a) To obtain indemnification under
this Agreement, Indemnitee shall submit to the Corporation a
written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee
