Exhibit 10.17
INNOVATIVE SOFTWARE TECHNOLOGIES, INC.
Director Indemnification Agreement
THIS AGREEMENT is executed and entered into by and between INNOVATIVE SOFTWARE
TECHNOLOGIES, INC., a California corporation (the "Company"), and the individual
identified below who has signed this Agreement as a director of the Company (the
"Director").
WHEREAS, the Company has requested the Director to serve as a member of the
board of directors of the Company; and
WHEREAS, certain risks are associated with serving as a member of the board of
directors of a corporation; and
WHEREAS, the Director has indicated that the Director is willing to serve as a
member of the board of directors of the Company, but only if the Company agrees
to indemnify the Director against certain of the risks associated with serving
in such capacity; and
WHEREAS, the Company desires to provide the rights of indemnification and other
rights as set forth herein as an inducement to the Director to serve as a
director of the Company.
NOW, THEREFORE, in order to induce the Director to serve as a member of the
board of directors of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the Company and the Director, the parties agree as follows:
1. Definitions.
For purposes of this Agreement, "Action" means any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether or not such action is by or in the
right of the Company or such other enterprise with respect to which the Director
serves or has served as a director or officer, that arises by reason of the fact
that the Director is or was a director or officer of the Company, or is or was
serving at the request of the Company as a director or officer of any other
corporation, partnership, joint venture, trust or other enterprise; "Expenses"
means any and all expenses (including attorneys' fees), costs, judgments, fines
or amounts paid in settlement and that are actually and reasonably incurred by
the Director in connection with any Action; "Charter Indemnification Provision"
means any provisions of the Company's articles of incorporation or bylaws (as
now in effect or hereafter amended) providing for the indemnification of and
advancement of expenses to directors of the Company; and "California
Indemnification Statute" means Section 317 of California Corporations Code or
any successor statute thereto; and any other terms used herein that are not
defined herein shall be used within the meaning of such terms in the California
Indemnification Statute.
2. Indemnification.
2.1. Notwithstanding any amendment or modification of the Charter
Indemnification Provisions or the California Indemnification Statute, the
Company hereby indemnifies and shall hold harmless the Director from and against
any and all Expenses, except for the Expenses expressly identified in Section
2.2.
2.2. The indemnification provided for in Section 2.1 shall not apply to any of
the following Expenses: (i) Expenses for which the Director is indemnified
pursuant to any directors and officers insurance policy purchased and maintained
by the Company (the indemnification provided in this Agreement is intended to be
in excess of any such directors and officers insurance policy, and the Director
must look first to the directors and officers insurance policy); (ii)
remuneration paid to the Director if it shall be determined by a final judgment
or other final adjudication that such remuneration was in violation of law;
(iii) Expenses incurred on account of any Action in which judgment is rendered
against the Director for an accounting of profits made from the purchase or sale
by the Director of securities of the Company, pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 or any amendments thereto
or similar provisions of any federal, state or local law; (iv) Expenses incurred
on account of the Director's conduct that is finally adjudged to have been (or
the Director has admitted facts sufficient to conclude that the Director's
conduct was): (1) a breach of the duty of loyalty to the Company or its
shareholders; (2) an act or omission that was not in good faith; (3) an act or
omission that involved intentional misconduct or a knowing violation of law; or
(4) a transaction from which the Director derived an improper personal benefit;
(v) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful as against public policy; and
(vi) any income taxes, or any interest or penalties related to them, in respect
of compensation received for services as a director or officer of the Company.
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3. Continuation of Indemnity.
All agreements and obligations of the Company contained in this Agreement shall
continue during the period the Director is a director, officer, employee or
agent of the Company (or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise), and shall continue so long as the Director
shall be subject to any possible Action by reason of the fact that the Director
was a director or officer of the Company or serving in any other capacity
referred to in this Agreement.
4. Notice to the Company.
The Company shall perform its obligations under this Agreement on receipt of
written demand for such performance from the Director and, if the Company fails
to perform its obligations under this Agreement on demand, then the Director may
then or at any time bring legal action against the Company to obtain full and
complete performance of its obligations under this Agreement. In any action
brought to enforce this Agreement, on a showing by the Director that a claim has
been asserted against the Director with respect to or in connection with any
alleged act or omission by the Director as a director or officer of the Company,
or any alleged neglect or breach of duty by the Director as a director or
officer of the Company or otherwise in the Director's capacity as a director or
officer of the Company, there shall be a presumption that the Director is
entitled to indemnification and advancement of costs and expenses from the
Company in respect to indemnification.
5. Control of Defense.
If an Action shall be threatened or commenced against the Director that has
given rise to, or may give rise to, a right to indemnification under Section 2,
or a right to advancement of costs and expenses under Section 6, and provided
that the Action is not threatened or commenced in the name or on behalf of the
Company and there is no other conflict of interest between the Company and the
Director with respect to the Action, then: (i) the Company shall have the right
to participate, at its own cost and expense, in the investigation, defense or
other contest of the Action; and (ii) the Company shall have the right to elect
to assume the defense of the Action on behalf of the Director (if applicable,
jointly with any third party who may have an obligation to hold harmless or
indemnify the Director with respect to the Action). If a conflict of interest of
the type contemplated herein should develop, then the Director shall control the
defense of any Action against the Director that may give rise to a right of
indemnification under this Agreement, subject to the following: (A) if the
insurance carrier that shall have supplied any directors and officers insurance
policy shall be willing to conduct the defense without any reservation as to
coverage, then, unless on written application by the Director concurred in by
the board of directors of the Company, in which the Director and the board of
directors deem it undesirable, the insurance carrier shall select counsel to
conduct the defense; (B) if the insurance carrier shall not assume
responsibility for the defense without any reservation of rights as to coverage,
then the defense shall be conducted by experienced and able counsel selected by
the Director and reasonably acceptable to the board of directors; and (C)
separate counsel will be used by the Director and other parties indemnified by
the Company and subject to the same Action only to the extent necessary, in the
reasonable opinion of the Director, to avoid conflict of interest. If the
Company should elect to assume the defense of an Action on behalf of the
Director as provided herein, then: (1) the Company shall give the Director
prompt written notice of the election; (2) the Company shall be obligated to
defend the Action in good faith and in a manner consistent with the best
interests of the Director; (3) provided that the Company defends the Action in
good faith and in a manner consistent with the best interests of the Director
and no conflict of interest develops between the Company and the Director with
respect to the Action, the Company shall not be liable for any costs or expenses
(including attorneys' fees) incurred by the Director in connection with
defending or otherwise contesting the Action after the Director has received
written notice of the election; and (4) the Company shall not settle or
compromise the Action on any basis or in any manner that would impose any
liability, limitation or restriction of any kind on, or admit any fault or guilt
on behalf of, the Director without the Director's express written consent.
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6. Advancement of Expenses.
On written request to the Company by the Director, the Company shall advance to
the Director amounts of money sufficient to cover Expenses in advance of the
final disposition of them, on receipt of (i) an undertaking by or on behalf of
the Director to repay such amounts if it shall ultimately be determined by final
judgment of a court of competent jurisdiction that the Director is not entitled
to be indemnified by the Company under this Agreement, and (ii) satisfactory
evidence as to the amount of such Expenses. The Director's written
certification, together with a copy of the statement paid or to be paid by the
Director, shall constitute satisfactory evidence, absent manifest error.
7. Directors and Officers Liability Insurance.
Unless otherwise agreed by the Director in the Director's sole discretion, the
Company shall use reasonable efforts to provide the Director with directors and
officers insurance coverage ("Directors and Officers Coverage") providing to the
Director such coverage then available in the insurance industry in such amounts
and with such exclusions and other conditions to coverage as shall in the sole
judgment of the Company provide reasonable coverage to the Director in light of
the cost to the corporation and any other relevant consideration, it being
expressly intended that the foregoing shall not obligate the Company to obtain
Directors and Officers Coverage for the Director. The Director shall not settle
any matter for which the Director intends to seek indemnification under this
Agreement without first attempting to obtain any approval required with respect
to such settlement by the insurance carrier of any applicable Directors and
Officers Coverage. If the Director seeks such approval, but the approval is not
granted by the insurance carrier of any applicable Directors and Officers
Coverage, then the Director shall be entitled to indemnification to the fullest
extent provided by this Agreement. Except as otherwise set forth in Section
2.2(i), the provisions of Directors and Officers Coverage, or the failure to so
provide Directors and Officers Coverage, shall in no way limit or diminish the
obligation of the Company to indemnify the Director as provided elsewhere in
this Agreement.
8. Non-Exclusivity.
The indemnification rights granted to the Director under this Agreement shall
not be deemed exclusive of, or in limitation of, any rights to which the
Director may be entitled under California law (including but not limited to the
California Indemnification Statute), the Charter Indemnification Provisions,
vote of shareholders, determination by the Company's board of directors or
otherwise.
9. Miscellaneous.
The rights granted to the Director under this Agreement shall inure to the
benefit of the Director, the Director's personal representatives, heirs,
executors, administrators and beneficiaries, and this Agreement shall be binding
on the Company, its successors and assigns. To the extent permitted by
applicable law, the parties by this Agreement waive any provision of law that
renders any provision in this Agreement unenforceable in any respect. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision shall be
held to be prohibited by or invalid under applicable law, then such provision
shall be deemed amended to accomplish the objectives of the provision as
originally written to the fullest extent permitted by law, and all other
provisions shall remain in full force and effect. Any notice, demand, or other
communication to the Company under this Agreement may be addressed to the
Company at its registered office in California to the attention of the Company's
registered agent in California at such office, and to the Director under this
Agreement may be addressed to the Director at the address indicated below next
to the Director's signature. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of California, without reference to its
principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth below.
Date: August 14, 2003
INNOVATIVE SOFTWARE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: X. X. Xxxxxxx
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Title: President
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Director's Name (type or print):
Xxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
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(Director's Signature)
Address:
0000 X. Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
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