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Exhibit 10.10
INDEMNITY AGREEMENT
AGREEMENT, dated and effective as of the date set forth at the foot
hereof, by and between RUSSIAN WIRELESS TELEPHONE COMPANY, INC. (the "Company")
and the undersigned, a director and/or officer of the Company (the
"Indemnitee").
In view of the substantial increase in directors' and officers'
litigation costs and risks and the periodic limitations on the availability and
coverage of liability insurance, and in view of the desire of the Company that
the Indemnitee continue to render valuable services to the Company, this
Agreement is intended to provide assurance that the Company will indemnify the
Indemnitee to the full extent permitted by the laws of Delaware.
NOW, THEREFORE, in consideration of the Indemnitee's agreeing to serve
or continuing to serve as an officer and/or director of the Company, the parties
hereto agree as follows:
1. Indemnification. To the fullest extent permitted by the provisions
of the Company's Certificate of Incorporation and/or the laws of Delaware as
from the time in effect, the Company shall indemnify the Indemnitee and any
persons referred to in the second sentence of Section 9 against any expense
(including attorneys' fees), judgments, fines and amounts paid in settlement
incurred in connection with any actual or threatened action or proceeding,
whether civil or criminal, to which the Indemnitee or such person is made or
threatened to be made a party by reason of the fact that the Indemnitee then is
or was a director or officer of the Company, of then serves of has served any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, in any capacity, at the request of the Company. To the full
extent so permitted, the foregoing shall apply to actions by or in the right of
the Company and require the Company to pay expenses in advance of final
disposition.
2. Notice to Company. Not later than thirty (30) days after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding to
which the Indemnitee is or may be named a party, Indemnitee shall, if a claim in
respect thereof is to be made by the Indemnitee against the Company under this
Agreement, notify the Company of the commencement thereof; but the omission so
to notify the Company will not relieve it from any liability which it may have
to Indemnitee otherwise than under this Agreement. With respect to any such
action, suit or proceeding as to which Indemnitee notifies the Company of the
commencement thereof, the Company shall be entitled to participate therein at
its own expense; except as otherwise provided below, the Company shall have the
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but not the obligation, at its option and jointly with any other indemnifying
party similarly notified and electing to assume the defense thereof, with
counsel reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election to assume the defense thereof, the Company will not
be liable to Indemnitee under this Agreement, Delaware law, the Company's
Certificate of Incorporation or otherwise for any legal or other expense
subsequently incurred by Indemnitee in connection with the defense thereof.
Indemnitee shall have the right to employ separate counsel in such action, suit
or proceeding, but the fees and expenses of such counsel, incurred after notice
from the Company of its assumption of the defense thereof, shall be at the
expense of Indemnitee unless (i) Indemnitee is a non-employee director of the
Company, (ii) the employment of counsel by Indemnitee has been authorized by the
Company, (iii) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of the
defense of such action, or (iv) the Company shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expense of Indemnitee's separate counsel shall be at the expense of the
Company. If more than one non-employee director shall be made a party to an
action, the fees and expenses of only one separate counsel to be employed on
behalf of all such non-employee directors, as a group, shall be borne by the
Company unless one or more of such non-employee directors shall have reasonably
concluded that there may be a conflict of interest among the non-employee
directors, in which case, a sufficient number of separate counsel may be
employed, at the cost of the Company, to avoid such conflict. The single
separate counsel employed to represent the nonemployee directors, as a group,
shall be satisfactory to all such directors but their approval shall not be
unreasonably withheld or delayed. The Company shall not be entitled to assume
the defense of any action, suit or proceeding brought by or on behalf of the
Company.
The Company shall not be liable to indemnify Indemnitee under this
Agreement, the Company's Certificate of Incorporation or otherwise, for any
amounts paid in settlement of any action or claim effected without the Company's
prior written consent which, in a case where Indemnitee is represented by
separate counsel, shall not be unreasonably withheld or delayed. The Company
shall not settle any action or claim in any manner which would impose any
damages, fines, penalties or limitations on Indemnitee without Indemnitee's
written consent, which consent shall not be unreasonably withheld or delayed.
3. Enforcement Procedure. Any right to indemnification or advances
granted by this Agreement to Indemnitee shall be enforceable by or on behalf of
Indemnitee in the forum in which the proceeding is or was pending or, if such
forum is not convenient or available, in any court of competent jurisdiction if
(i) the claim for indemnification or advances is denied by the Company, in whole
or in part, or (ii) no disposition of such claim is made within thirty (30) days
of request therefor. Indemnitee, in such enforcement action, shall be entitled
to be paid also
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the expense of prosecuting his or her claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
connection with any proceeding in advance of its final disposition when the
required undertaking has been tendered to the Company) that Indemnitee is not
entitled to indemnification because of the limitations set forth in Section 5
hereof, but the burden of proving such defense shall be on the Company. Neither
the failure of the Company (including its Board of Directors of its
stockholders) to have made a determination prior to the commencement of such
enforcement action that indemnification of Indemnitee is proper in the
circumstances, nor an actual determination by the Company (including its Board
of Directors or its stockholders) that such indemnification is improper shall be
a defense to the action or create a presumption that Indemnitee is not entitled
to indemnification under this Agreement or otherwise.
4. Change in Control. Following a Change in Control (as hereinafter
defined), any finding of whether indemnification is permitted by the laws of
Delaware shall, if the Indemnitee so elects, be based upon the written opinion
of special independent counsel selected by the Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld or delayed).
A. Such counsel shall render an opinion to the Board of
Directors and the Indemnitee as to whether indemnification is permitted by the
laws of Delaware. The Company shall pay the reasonable fees of such counsel.
B. A "Change in Control" shall be deemed to have occurred on:
(i) the date on which more than one half of the members of the Board of
Directors shall consist of persons other than Current Directors (for these
purposes, a "Current Director" shall mean any member of the Board of Directors
as of January 1, 1993, and any successor of a Current Director who has been
approved by a majority of the Current Directors then on the Board); or (ii) the
date of approval by the stockholders of the Company of an agreement providing
for (1) the merger or consolidation of the Company with another corporation
where the stockholders of the Company immediately prior to the merger or
consolidation would not beneficially own, immediately after the merger or
consolidation, shares entitling such stockholders to 50% or more of all votes
(without consideration of the rights of any class of stock to elect directors by
a separate class vote) to which all stockholders of the corporation issuing cash
or securities in the merger or consolidation would be entitled in the election
of directors or where the members of the Board of Directors of the Company
immediately prior to the merger or consolidation, would not, constitute more
than one half of the Board of Directors of the Company immediately after the
merger or consolidation, or (2) the sale or other disposition of all or
substantially all the assets of the Company.
5. Limitations on Indemnity. No indemnity or advance payment
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pursuant to Sections 1, 6 or 7 hereof (including, unless the Board of Directors
otherwise determines, any provisions thereof pertaining to pre-judgment payment
of Indemnitee's legal expenses), Delaware law, the Company's Certificate of
Incorporation or otherwise shall be paid by the Company:
A. in respect of any suit in which judgment is rendered
against Indemnitee for an accounting of profits made from the purchase or sale
by Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
B. in respect of Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately dishonest, or to
constitute willful misconduct;
C. in respect of Indemnitee's conduct which is finally
adjudged to have constituted a breach of Indemnitee's duty of loyalty to the
Company or resulted in any personal profit or advantage to which Indemnitee was
not legally entitled;
D. for which payment is actually made to Indemnitee under a
valid and collectible insurance policy or under a valid and enforceable
indemnity clause, by-law or agreement, except in respect of any excess beyond
payment under such insurance, clause by-law or agreement;
E. if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful; (and, in this
respect, both the Company and Indemnitee acknowledge their understanding to the
effect that the Securities and Exchange Commission believes that indemnification
for liabilities arising under the federal securities laws is against public
policy and is, therefore, unenforceable and that claims for indemnification
should be submitted to appropriate courts for adjudication); or
F. in connection with any proceeding (or part thereof)
initiated by Indemnitee or any proceeding by Indemnitee against the Company or
its directors, officers, employees or other agents, prior to a Change of Control
unless (i) such indemnification is expressly required to be made by law, (ii)
the proceeding was authorized by the Board of Directors of the Company, or (iii)
such indemnification is available from the Company under Delaware law.
6. Partial Indemnification. Indemnitee shall be entitled under this
Agreement to indemnification by the Company for a portion of the expenses
(including attorney's fees), witness fees, damages, judgment, fines and amounts
paid in settlement and any other amounts that Indemnitee becomes legally
obligated to
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pay in connection with any action, suit or proceeding referred to in Section 1
hereof, even if not entitled hereunder to indemnification for the total amount
thereof, and the Company shall indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.
7. Litigation Expenses. In the event the Indemnitee becomes a party to
any litigation regarding any matter pertaining to this Agreement, or any act of
commission or omission alleged to have been made by the Indemnitee while
employed by the Company, including actions brought by or in the right of the
Company to procure a judgment in its favor (each of which shall hereinafter be
referred to as a "Covered Proceeding"), the Indemnitee shall have the right to
have his expenses, including, but not limited to all of his legal fees in
prosecuting or defending such proceeding, paid by the Company as such expenses
are incurred during the course of such Covered Proceeding. This right shall be
in addition to any other rights of indemnification the Indemnitee may have under
the Certificate of Incorporation or By-Laws of the Company, or pursuant to any
Employment Agreement or to applicable law. The provisions of this Article shall
survive the termination of this Agreement.
8. Subrogation. In the event of payment under this Agreement, Delaware
law, the Company's Certificate of Incorporation or otherwise, the Company shall
be subrogated to the extent of such payment to all of the rights, remedies and
recoveries of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary or desirable to secure such rights, remedies and
recoveries and to enable the Company effectively to bring suit to enforce such
rights.
9. Other Rights; Continuation of Right to Indemnification. The
indemnification and advances provided by this Agreement shall not be deemed
exclusive of any other rights consistent with the laws of Delaware to which a
director or officer seeking indemnification may be entitled under any law
(common or statutory), provision of the Company's Certificate of Incorporation
or by-laws, resolution of stockholders or directors, other agreement or
otherwise, both as to action in the Indemnitee's official capacity and as to
action in another capacity while holding office or while employed by or acting
as agent for the Company, and shall continue notwithstanding that the Indemnitee
may have ceased to be a director or officer or to act as such employee or agent.
The provisions of this Agreement shall inure to the benefit of the estate,
heirs, executors, administrators and other personal representatives of the
Indemnitee.
10. Amendments. This Agreement may not be amended without the agreement
in writing of the Company and the Indemnitee.
11. Savings Clause. If any portion of this Agreement shall be
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deemed invalid, illegal or enforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and the Company shall nevertheless indemnity the Indemnitee
as to expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement to the full extent permitted by any portion of this Agreement that
shall not have been invalidated and to the full extent permitted by applicable
law.
12. Survival Clause. The Company acknowledges that, in providing
services to the Company, the Indemnitee is relying on this Agreement.
Accordingly, the Company agrees that regardless of when a claim is made or an
action is threatened or commenced, its obligations hereunder will survive (i)
any actual or purported termination of this Agreement by the Company or its
successors or assigns either by operation of law or otherwise, (ii) any changes
in the Company's Certificate of Incorporation or by-laws, and (iii) termination
of the Indemnitee's services to the Company (whether such services were
terminated by the Company or the Indemnitee).
13. Successors and Assigns of the Company. This Agreement shall be
binding on the successors and assigns of the Company whether by operation of law
or otherwise.
14. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without giving effect to the provisions thereof relating to conflict
of laws).
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15. Notice. Each notice required or permitted under this Agreement
shall be in writing and signed by a duly authorized representative of the party
initiating the same and shall be sent by registered or certified mail, return
receipt requested, postage prepaid or delivered by hand, to the following
addresses unless changed by written notice:
To Indemnitee: at the address indicated on the signature page hereof
To the Company: Russian Wireless Telephone Company, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of , 1997.
Russian Wireless Telephone Company, Inc.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Indemnitee:
___________________________________________
Name: _____________________________________
Address: __________________________________
__________________________________
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