Exhibit 10.9
Form SB-2
Skypath Networks, Inc.
Skypath Networks, Inc.
INDEMNITY AGREEMENT
1. THIS AGREEMENT is made and entered into as of the 8th day of July, 2003, by
and between Skypath Networks, Inc., a Delaware corporation (the "Company"), and
Xxxxxx Xxxxxxx ("Indemnitee").
WITNESSETH:
WHEREAS, Indemnitee is a director or an executive officer of the Company
and provides valuable services in such capacity or capacities for the Company;
WHEREAS, the Company's Certificate of Incorporation (the "Certificate")"
and Bylaws (the "Bylaws") provide for the indemnification of the directors and
executive officers by the Company to the maximum extent authorized by the
Delaware General Corporation Law, as amended (the "Law").
WHEREAS, the Certificate, the Bylaws and the Law, by their non-exclusive
nature, permit agreements between the Company and its directors and executive
officers with respect to indemnification of such directors and executive
officers;
WHEREAS, as a result of recent developments affecting the terms, scope, and
availability of directors' and officers' liability insurance, there exists
general uncertainty as to the extent of protection which maybe afforded the
Company's directors and executive officers by such insurance, if any such
insurance is obtained; and
WHEREAS, in order to induce Indemnitee to serve or continue to serve as a
director or an executive officer of the Company, the Company has determined and
agreed to enter into this Agreement with Indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's service or continued
service as a director or an executive officer after the date hereof, the parties
hereto agree as follows:
2. Indemnification. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the fullest extent permitted or required by the provisions of the
Law as it is presently constituted and as it may be amended from time to time;
provided, however, that in the case of any amendment to the Law, the Company's
obligations to hold harmless and indemnify Indemnitee shall be changed only to
the extent that such amendment to the Law permits or requires the Company to
provide broader indemnification rights than prior to such amendment.
3. Additional Indemnity. Subject only to the exclusions set forth in Section 3
hereof, the Company hereby further agrees to hold harmless and indemnify
Indemnitee:
E-167
(a) Against any and all expenses (including attorneys' fees), costs,
judgments, fines (which term, whenever used in this Agreement, includes, without
limitation, excise taxes), and amounts paid by Indemnitee in connection with the
defense or settlement of any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (including
an action by or in the right of the Company) to which Indemnitee is, was, or at
any time becomes a party, witness or deponent or is threatened to be made a
party, witness or deponent by reason of the fact that Indemnitee is, was, or at
any time becomes a director, officer, employee, or agent of the Company, or is
or was serving or at any time serves at the request of the Company as a
director, officer, employee, trustee or agent of another corporation,
partnership, limited liability company, joint venture, trust, benefit plan or
other enterprise; and
(b) Otherwise to the fullest extent as may be provided to Indemnitee by the
Company under the non-exclusive provisions of the Law.
4. Limitations on Additional Indemnity. No indemnity pursuant to Section hereof
shall be paid by the Company:
(a) If a judgment or other final adjudication establishes that Indemnitee's
actions, or omissions to act, were material to the cause of the action so
adjudicated and constitute: (i) a violation of the criminal law, unless
Indemnitee had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful; (ii) a transaction from
which Indemnitee derived an improper personal benefit; (iii) in the case of
Indemnitee being a director where prohibited by law; or (iv) willful misconduct
or a conscious disregard for the best interests of the Company in a proceeding
by or in the right of the Company or in a proceeding by or in the right of a
shareholder of the Company; or
(b) If a final decision by a court having Jurisdiction in the matter shall
determine that such indemnification is not lawful. Notwithstanding the
foregoing, Indemnitee shall be entitled to the fullest indemnification under
this Agreement if he is successful on the merits (including, without limitation,
dismissal with or without prejudice) in any matter for which indemnification is
not prohibited by the Law.
5. Contribution. If the indemnification provided in Section 1 or 2 hereof is
unavailable and may not be paid to Indemnitee for any reason other than those
set forth in paragraph (a) of Section 3 hereof, then in respect of any
threatened, pending, or completed action, suit, or proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such action,
suit, or proceeding), the Company shall contribute to the amount of expenses
(including attorneys' fees and expenses), judgments, fines, and amounts paid or
payable by Indemnitee in such proportion as is appropriate to reflect (a) the
relative benefits received by the Company on the one hand and Indemnitee on the
other hand from the transaction from which such action, suit, or proceeding
arose, and (b) the relative fault of the Company on the one hand and of
Indemnitee on the other hand in connection with the events which resulted in
such expenses, judgments, fines, or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of the Indemnitee on the other hand shall be determined by reference
to, among other things, the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent the circumstances resulting
in such expenses, judgments, fines, or settlement amounts.
6. Continuation of Obligations. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee 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, limited liability company, joint venture, trust, or
E-168
other enterprise) and shall continue thereafter so long as Indemnitee shall be
subject to any possible claim or threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, or investigative, by reason of the fact
that Indemnitee was a director or an executive officer of the Company or serving
in any other capacity referred to herein and shall inure to the benefit of the
heirs, executors, and administrators of Indemnitee.
7. Notification and Defense of Claim. Promptly after receipt by Indemnitee of
notice of the commencement of any action, suit, or proceeding, Indemnitee will,
if a claim in respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement thereof. The failure of
Indemnitee to notify the Company shall have no effect on the obligations of the
Company hereunder except if, and only to the extent that, the Company suffers
actual prejudice or loss resulting from such failure. With respect to any such
action, suit, or proceeding:
(a) The Company will be entitled to participate therein at its own expense.
(b) Except as otherwise provided below, to the extent that it may wish, the
Company shall be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to assume the defense hereof, the Company will not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof except as
otherwise provided below, Indemnitee shall have the right to employ his 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) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) 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 (iii)
the Company shall not in fact have employed counsel to assume the defense of
such action, in each of which cases the fees and expenses of such counsel of
Indemnitee shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any action, suit, or proceeding brought by or
on behalf of the Company.
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without the Company's written consent. The Company shall not settle any action
or claim in any manner which would constitute an admission by Indemnitee as to
any matter or impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold its or his consent to any proposed settlement,
8. Advancement and Repayment of Expenses.
16. In the event that Indemnitee employs his own counsel pursuant to
Section 6(b)(i), (ii), or (iii) above, the Company shall advance to Indemnitee,
prior to any final disposition of any threatened or pending action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, any and
all reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit, or proceeding within ten (10)
days after receiving copies of invoices presented to Indemnitee for such
expenses.
(b) Indemnitee agrees and undertakes that Indemnitee will reimburse the
Company for all expenses paid by the Company to Indemnitee pursuant to Section
7(a) hereof in the event and only to the extent that it shall be finally
determined by a court of competent jurisdiction that Indemnitee is not entitled,
under the provisions of the Law, the Certificate, the Bylaws, this Agreement, or
otherwise, to be indemnified by the Company for such expenses, or if Indemnitee
receives reimbursement of such expenses from any other source.
E-169
9. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on the Company hereby in order to
induce Indemnitee to serve or to continue to serve as a director or an executive
officer of the Company, and acknowledges that Indemnitee is relying upon this
Agreement in serving or continuing to serve in such capacity.
(b) In the event Indemnitee is required to bring any action to enforce
rights or to collect monies due under this Agreement and is successful in such
action, the Company shall reimburse Indemnitee for all of Indemnitee's fees and
expenses in bringing and pursuing such action. o
10. Non-exclusivity. The indemnification provided by this Agreement shall not be
deemed exclusive of any rights to which Indemnitee may be entitled under the
Law, the Certificate, the Bylaws, any agreement, any vote of shareholders or
disinterested directors, or otherwise, both as to action in Indemnitee's
official capacity, and as to action in another capacity while holding such
office. The indemnification provided under this Agreement shall continue as to
Indemnitee for any action taken or not taken while serving in an indemnified
capacity even though he may have ceased to serve in such capacity tit the time
of any action, suit, or other covered proceeding.
11. Liability Insurance. The Company shall maintain an insurance policy or
policies providing directors' and officers' liability insurance and Indemnitee
shall be covered by such policy or policies, in accordance with its or their
terms, to the maximum extent of the coverage available for any director or
executive officer of the Company.
12. Severability. The provisions of this Agreement shall be regarded as
divisible, and if any of said provisions or any part hereof is declared invalid
or unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby,
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without reference to
conflict or choice of law principles there under.
14. Binding Effect. This Agreement shall be binding upon and inure to the"
benefit of Indemnitee and the Company, and their respective successors, assigns
and personal or legal representatives.
15. Amendment. This Agreement may not be amended or modified at any time except
by written instrument executed by the Company and Indemnitee.
16. Notices. Notices given pursuant to this Agreement shall be in writing, and
except as otherwise provided in this Agreement, shall be deemed given when
actually received by Indemnitee or actually received by any executive officer of
the Company. If sent by mail, such notices shall be mailed by United States
registered or certified mail, return receipt requested, postage prepaid, if to
the Company, to Skypath Networks, Inc. Attention: Chief Financial Officer, 000
Xxxxx Xxxxxx Xxxx, Xxxxx 000X, Xxxxxxx, XX 00000, or if to Indemnitee, at the
address set forth below Indemnitee's signature of this Agreement, or to such
other address as the party to be notified shall have theretofore given to the
other party in writing.
17. Certain Rules of Construction. No party shall be considered as being
responsible for the drafting of this Agreement for the purpose of applying any
rule construing ambiguities against the drafter or otherwise. No draft of this
Agreement shall be taken into account in construing this Agreement.
E-170
18. No Waiver. No waiver by either party at any time of any breach by the other
party of, or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Skypath Networks, Inc., a Delaware corporation
By:
Name:
Title:
INDEMNITEE:
/s/
__________________________________________
Xxxxxx Xxxxxxx
E-171
