INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "AGREEMENT") is made and entered into this
_____ day of ____________________, 2004, between World Waste Technologies, Inc.,
a California corporation (the "COMPANY"), and ___________________________
("INDEMNITEE").
RECITALS:
A. Indemnitee, as a member of the Company's Board of Directors and/or an
officer of the Company, performs valuable services for the Company.
B. The Company and Indemnitee recognize the continued difficulty in
obtaining liability insurance for corporate directors, officers, employees,
controlling persons, 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 further recognize the substantial increase
in corporate litigation in general, subjecting directors, officers, employees,
controlling persons, agents and fiduciaries to expensive litigation risks at the
same time as the availability and coverage of liability insurance has been
severely limited.
D. The stockholders of the Company have adopted Bylaws (the "BYLAWS")
providing for the indemnification of the officers, directors, agents and
employees of the Company to the maximum extent authorized by the California
Corporations Code, as amended ("CCC").
E. Indemnitee does not regard the current protection available for the
Company's directors, officers, employees, controlling persons, agents and
fiduciaries as adequate under the present circumstances, and Indemnitee and
other directors, officers, employees, controlling persons, agents and
fiduciaries of the Company may not be willing to serve or continue to serve in
such capacities without additional protection.
F. The Bylaws and the CCC, by their non-exclusive nature, permit contracts
between the Company and its directors, officers, employees, controlling persons,
agents or fiduciaries with respect to indemnification of such directors.
G. The Company (a) 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 and (b) wishes to
provide for the indemnification and advancing of expenses to Indemnitee to the
maximum extent permitted by law.
H. 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, in consideration of Indemnitee's service to the Company,
the parties hereto agree as follows:
1. INDEMNITY OF INDEMNITEE. The Company hereby agrees to indemnify
Indemnitee to the fullest extent permitted by law, even if such indemnification
is not specifically authorized by the other provisions of this Agreement, the
Company's Certificate of Incorporation (the "CERTIFICATE"), the Company's Bylaws
or by statute. In the event of any change after the date of this Agreement in
any applicable law, statute or rule which expands the right of a California
corporation to indemnify a member of its Board of Directors or an officer,
employee, controlling person, agent or fiduciary, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable
law, statute or rule which narrows the right of a California corporation to
indemnify a member of its Board of Directors or an officer, employee, agent or
fiduciary, such change, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations hereunder except as set forth
in Section 9(a) hereof.
2. ADDITIONAL INDEMNITY. The Company hereby agrees to hold harmless and
indemnify the Indemnitee:
(a) Against any and all expenses incurred by Indemnitee, as set
forth in Section 3(a) below; and
(b) Otherwise to the fullest extent not prohibited by the
Certificate, the Bylaws or the CCC.
3. INDEMNIFICATION RIGHTS.
(a) INDEMNIFICATION OF EXPENSES. The Company shall indemnify and
hold harmless Indemnitee, together with Indemnitee's partners, affiliates,
employees, agents and spouse and each person who controls any of them or
who may be liable within the meaning of Section 15 of the Securities Act
of 1933, as amended (the "SECURITIES ACT"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), 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 threatened, pending or
completed action, suit, proceeding or alternative dispute resolution
mechanism, or any hearing, inquiry or investigation that Indemnitee and
the Company believe might lead to the institution of any such action,
suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or other (hereinafter a
"CLAIM") against (i) 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, be a witness in or
participate in, a Claim, (ii) judgments, fines, penalties and amounts paid
in settlement (if such settlement is approved in advance by the Company,
which approval shall not be unreasonably
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withheld) of a Claim and (iii) 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 (collectively, hereinafter "EXPENSES"),
including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, incurred by Indemnitee by
reason of (or arising in part out of) any event or occurrence related to
the fact that Indemnitee is or was a director, officer, employee,
controlling person, agent or fiduciary of the Company or any subsidiary of
the Company, or is or was serving at the request of the Company as a
director, officer, employee, controlling person, agent or fiduciary of
another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action or inaction on the part of
Indemnitee while serving in such capacity 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, the Exchange
Act or other federal or state statutory law or regulation, at common law
or otherwise, which relate 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 (hereinafter an
"INDEMNIFICATION EVENT"). The Company shall make such payment of Expenses
as soon as practicable but in any event no later than 25 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 shall be subject to the
condition that the Reviewing Party (as described in Section 11(e) hereof)
shall not have determined (in a written opinion, in any case in which the
Independent Legal Counsel as defined in Section 11(d) hereof is involved)
that Indemnitee would not be permitted to be indemnified under applicable
law and (ii) and Indemnitee acknowledges and agrees that the obligation of
the Company to make an advance payment of Expenses to Indemnitee pursuant
to Section 4(a) (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 (as defined in Section
11(c) hereof), the 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
referred to in Section 3(e) hereof. If there has been no determination by
the Reviewing
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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. Any determination
by the Reviewing Party otherwise shall be conclusive and binding on the
Company and Indemnitee.
(c) CONTRIBUTION. If the indemnification provided for in Section
3(a) above for any reason is held by a court of competent jurisdiction to
be unavailable to an Indemnitee in respect of any losses, claims, damages,
expenses or liabilities referred to therein, then the Company, in lieu of
indemnifying Indemnitee thereunder, shall contribute to the amount paid or
payable by Indemnitee as a result of such losses, claims, damages,
expenses or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and Indemnitee or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Company and Indemnitee in connection with the action
or inaction which resulted in such losses, claims, damages, expenses or
liabilities, as well as any other relevant equitable considerations. In
connection with the registration of the Company's securities, the relative
benefits received by the Company and Indemnitee shall be deemed to be in
the same respective proportions that the net proceeds from the offering
(before deducting expenses) received by the Company and the Indemnitee, in
each case as set forth in the table on the cover page of the applicable
prospectus, bear to the aggregate public offering price of the securities
so offered. The relative fault of the Company and Indemnitee shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or Indemnitee and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company and Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 3(c) were determined by
pro rata or per capita allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
the immediately preceding paragraph. In connection with the registration
of the Company's securities, in no event shall an Indemnitee be required
to contribute any amount under this Section 3(c) in excess of the lesser
of (i) that proportion of the total of such losses, claims, damages or
liabilities indemnified against equal to the proportion of the total
securities sold under such registration statement which is being sold by
Indemnitee or (ii) the proceeds received by Indemnitee from its sale of
securities under such registration statement. No person found guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the
Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation.
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(d) SURVIVAL REGARDLESS OF INVESTIGATION. The indemnification and
contribution provided for herein will remain in full force and effect
regardless of any investigation made by or on behalf of Indemnitee or any
officer, director, employee, agent or controlling person of Indemnitee.
(e) CHANGE IN CONTROL. After the date hereof, the Company agrees
that if there is a Change in Control of the Company (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)
then, with respect to all matters thereafter arising concerning the rights
of Indemnitee to payments of Expenses under this Agreement or any other
agreement or under the Company's Certificate or Bylaws as now or hereafter
in effect, Independent Legal Counsel (as defined in Section 11(d) hereof)
shall be selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld). Such counsel, among other
things, shall render its written opinion to the Company and Indemnitee as
to whether and to what extent Indemnitee would be permitted to be
indemnified under applicable law. The Company agrees to abide by such
opinion and to pay the reasonable fees of the Independent Legal Counsel
referred to above and to fully indemnify such counsel against any and all
reasonable expenses (including attorneys' fees), claims, liabilities and
damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
(f) MANDATORY PAYMENT OF EXPENSES. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in the defense of any action,
suit, proceeding, inquiry or investigation referred to in Section 3(a)
hereof or in the defense of any claim, issue or matter therein, Indemnitee
shall be indemnified against all Expenses incurred by Indemnitee in
connection herewith.
4. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) ADVANCEMENT OF EXPENSES. The Company shall advance all Expenses
incurred by Indemnitee. The advances to be made hereunder shall be paid by
the Company to Indemnitee as soon as practicable but in any event no later
than ten business days after written demand by Indemnitee therefor to the
Company.
(b) NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall give the
Company notice in writing in accordance with Section 15 of this Agreement
as soon as practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this Agreement.
(c) NO PRESUMPTIONS; BURDEN OF PROOF. For purposes of this
Agreement, the termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of
nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is
not permitted by applicable law. In addition, neither the failure of the
Reviewing Party to have made a determination as to whether Indemnitee has
met any particular standard of conduct or had any particular belief, nor
an actual determination by
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the Reviewing Party that Indemnitee has not met such standard of conduct
or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that
Indemnitee should be indemnified under applicable law, shall be a defense
to Indemnitee's claim or create a presumption that Indemnitee has not met
any particular standard of conduct or did not have any particular belief.
In connection with any determination by the Reviewing Party or otherwise
as to whether Indemnitee is entitled to be indemnified hereunder, the
burden of proof shall be on the Company to establish that Indemnitee is
not so entitled.
(d) NOTICE TO INSURERS. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 4(b) hereof, the
Company has liability insurance in effect which may cover such Claim, the
Company shall give prompt notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in each of the
Company's policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee,
all amounts payable as a result of such action, suit, proceeding, inquiry
or investigation in accordance with the terms of such policies.
(e) SELECTION OF COUNSEL. In the event the Company shall be
obligated hereunder to pay the Expenses of any Claim, the Company shall be
entitled to assume the defense of such Claim, with counsel approved by the
Indemnitee (which approval shall not be unreasonably withheld) upon the
delivery to Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable
to Indemnitee under this Agreement for any fees of counsel subsequently
incurred by Indemnitee with respect to the same Claim; provided that (i)
Indemnitee shall have the right to employ Indemnitee's counsel in any such
Claim at Indemnitee's expense and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee
shall have reasonably concluded that there is a conflict of interest
between the Company and Indemnitee in the conduct of any such defense or
(C) the Company shall not continue to retain such counsel to defend such
Claim, then the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company.
5. NONEXCLUSIVITY. The indemnification provided by this Agreement shall be
in addition to any rights to which Indemnitee may be entitled under the
Company's Certificate of Incorporation, its Bylaws, any agreement, any vote of
stockholders or disinterested directors, the CCC, or otherwise. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action Indemnitee took or did not take while serving in an indemnified
capacity even though Indemnitee may have ceased to serve in such capacity.
6. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
Agreement to make any payment in connection with any Claim made against any
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, Certificate of Incorporation, Bylaw or otherwise)
of the amounts otherwise indemnifiable hereunder.
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7. PARTIAL INDEMNIFICATION. If any Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for any portion of
Expenses incurred in connection with any Claim, but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion of such Expenses to which Indemnitee is entitled.
8. MUTUAL ACKNOWLEDGEMENT. The Company and Indemnitee acknowledge that in
certain instances, Federal law or applicable public policy may prohibit the
Company from indemnifying its directors, officers, employees, controlling
persons, agents or fiduciaries under this Agreement or otherwise. Each
Indemnitee understands and acknowledges that the Company has undertaken or may
be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain
circumstances for a determination of the Company's rights under public policy to
indemnify Indemnitee.
9. EXCEPTIONS. Any other provision herein to the contrary notwithstanding,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance expenses
to any Indemnitee with respect to Claims initiated or brought voluntarily
by Indemnitee and not by way of defense, except (i) with respect to
actions or proceedings to establish or enforce a right to indemnify under
this Agreement or any other agreement or insurance policy or under the
Company's Certificate of Incorporation or Bylaws now or hereafter in
effect relating to Claims for Indemnifiable Events, (ii) in specific cases
if the Board of Directors has approved the initiation or bringing of such
Claim or (iii) as otherwise required under the CCC, regardless of whether
Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the
case may be;
(b) CLAIMS UNDER SECTION 16(B). To indemnify Indemnitee for expenses
and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Exchange Act
or any similar successor statute; or
(c) CLAIMS EXCLUDED UNDER THE CALIFORNIA CORPORATIONS CODE. To
indemnify Indemnitee if (i) Indemnitee did not act in good faith or in a
manner reasonably believed by such Indemnitee to be in or not opposed to
the best interests of the Company, (ii) with respect to any criminal
action or proceeding, Indemnitee had reasonable cause to believe
Indemnitee's conduct was unlawful or (iii) Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent the
court in which such action was brought shall permit indemnification as
provided in the CCC.
10. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause
of action shall be asserted by or in the right of the Company against any
Indemnitee, any Indemnitee's estate, spouse, heirs, executors or personal or
legal representatives after the expiration of five years from the date of
accrual of such cause of action, and any claim or cause of action of the Company
shall be extinguished and deemed released unless asserted by the timely filing
of a legal action within such five-year period; provided, however, that if any
shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.
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11. CONSTRUCTION OF CERTAIN PHRASES.
(a) For purposes of this Agreement, references to the "Company"
shall include, in addition to the resulting corporation, any 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 or fiduciaries, so that if Indemnitee is or was a
director, officer, employee, agent, control person or fiduciary of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, control person,
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.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on any 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
any Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in the interests 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.
(c) For purposes of this Agreement a "Change in Control" shall be
deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee
or other fiduciary holding securities under an employee benefit plan of
the Company 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, (A) who is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing
10% or more of the combined voting power of the Company's then outstanding
Voting Securities, increases his or her beneficial ownership of such
securities by 5% or more over the percentage so owned by such person or
(B) becomes the "beneficial owner" (as defined in Rule 13d-3 under said
Exchange Act), directly or indirectly, of securities of the Company
representing more than 20% 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 of
the directors then still in office who either were directors
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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 80% 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 transactions) all or substantially all of
the Company's assets.
(d) For purposes of this Agreement, "Independent Legal Counsel"
shall mean an attorney or firm of attorneys, selected in accordance with
the provisions of Section 3(d) hereof, who shall not have otherwise
performed services for the Company or any Indemnitee within the last three
years (other than with respect to matters concerning the right of any
Indemnitee under this Agreement, or of other indemnitees under similar
indemnity agreements).
(e) For purposes of this Agreement, a "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 are seeking indemnification, or Independent Legal Counsel.
(f) For purposes of this Agreement, "Voting Securities" shall mean
any securities of the Company that vote generally in the election of
directors.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
13. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns, including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, spouses, heirs,
and personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the business
and/or assets of the Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place. This Agreement shall
continue in effect with respect to Claims relating to Indemnifiable Events
regardless of whether any Indemnitee continues to serve as a director, officer,
employee, agent, controlling person or fiduciary of the Company or of any other
enterprise, including subsidiaries of the Company, at the Company's request.
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14. ATTORNEYS' FEES. In the event that any action is instituted by an
Indemnitee under this Agreement or under any liability insurance policies
maintained by the Company to enforce or interpret any of the terms hereof or
thereof, any Indemnitee shall be entitled to be paid all Expenses incurred by
Indemnitee with respect to such action if Indemnitee is ultimately successful in
such action, and shall be entitled to the advancement of Expenses with respect
to such action, unless, as a part of such action, a court of competent
jurisdiction over such action determines that the material assertions made by
Indemnitee as a basis for such action were not made in good faith or were
frivolous. In the event of an action instituted by or in the name of the Company
under this Agreement to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee in
defense of such action (including costs and expenses incurred with respect to
Indemnitee counterclaims and cross-claims made in such action), and shall be
entitled to the advancement of Expenses with respect to such action, unless, as
a part of such action, a court having jurisdiction over such action determines
that the Indemnitee's material defenses to such action were made in bad faith or
were frivolous.
15. NOTICE. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given (a) five calendar days after deposit with the U.S.
Postal Service or other applicable postal service, if delivered by first class
mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one business
day after the business day of deposit with Federal Express or similar overnight
courier, freight prepaid, or (d) one day after the business day of delivery by
facsimile transmission, if deliverable by facsimile transmission, with copy by
first class mail, postage prepaid, and shall be addressed if to Indemnitee, at
Indemnitee's address as set forth beneath Indemnitee's signature to this
Agreement and if to the Company at the address of its principal corporate
offices (attention: Chief Executive Officer) or at such other address as such
party may designate by ten calendar days' advance written notice to the other
party hereto.
16. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of California
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the courts of
Santa Xxxxx County, California, which shall be the exclusive and only proper
forum for adjudicating such a claim.
17. SEVERABILITY. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitations, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
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18. CHOICE OF LAW. This Agreement shall be governed by and its provisions
construed and enforced in accordance with the laws of the State of California,
as applied to contracts between California residents, entered into and to be
performed entirely within the State of California, without regard to the
conflict of laws principles thereof.
19. SUBROGATION. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee who shall execute all documents required and shall do all
acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
20. AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by all parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
21. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
22. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in this
Agreement shall be construed as giving the Indemnitee any right to be retained
in the employ of the Company or any of its subsidiaries.
23. CORPORATE AUTHORITY. The Board of Directors of the Company has
approved the terms of this Agreement.
24. INDEMNIFICATION OF VENTURE CAPITAL FUNDS. If (i) Indemnitee is or was
affiliated with one or more venture capital funds that has invested in the
Company (each a "VC FUND"), (ii) a VC Fund is, or is threatened to be made, a
party to or a participant in any Proceeding, and (iii) the VC Fund's involvement
in the Proceeding is directly or indirectly related to Indemnitee's service to
the Company as a director of the Company, then the VC Fund shall be entitled to
all of the indemnification rights and remedies under this Agreement to the same
extent as Indemnitee.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
COMPANY:
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WORLD WASTE TECHNOLOGIES, INC.
By:
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Name:
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Title:
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INDEMNITEE:
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Printed Name:
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Address:
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[Signature Page to Indemnity Agreement]
