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EXHIBIT 10.10
FORM OF
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered
into as of the ____ day of ________, 2000, by and between SignalSoft
Corporation, a Delaware corporation (the "Company"), and _________________ (the
"Indemnitee").
RECITALS:
A. The Company desires the benefits of having Indemnitee serve as an
officer and/or director secure in the knowledge that any expenses, liability
and/or losses incurred by him in his good faith service to the Company will be
borne by the Company or its successors and assigns.
B. Indemnitee is willing to serve in his position with the Company only
on the condition that he be indemnified for such expenses, liability and/or
losses.
C. The Company and Indemnitee recognize the increasing difficulty in
obtaining liability insurance for directors, officers and agents of a
corporation at reasonable cost.
D. The Company and Indemnitee recognize that there has been an increase
in litigation against corporate directors, officers and agents.
E. The Company's Certificate of Incorporation allows and requires the
Company to indemnify its directors, officers and agents to the maximum extent
permitted under Delaware law.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 "Agent" shall mean any person who is or was a director, officer,
employee or agent of the Company or a subsidiary of the Company whether serving
in such capacity or as a director, officer, employee, agent, fiduciary or other
official of another corporation, joint venture, trust or other enterprise at the
request of, for the convenience of, or to represent the interests of the Company
or a subsidiary of the Company.
1.2 "Delaware Law" means the Delaware General Corporation Law, as
amended and in effect from time to time or any successor or other statutes of
Delaware having similar import and effect.
1.3 "Disinterested Director" shall mean a director of the Company who
is not and was not a party to the Proceeding in respect of which indemnification
is being sought by Indemnitee.
1.4 "Expenses" shall be broadly construed and shall include, without
limitation, (a) all direct and indirect costs incurred, paid or accrued, (b) all
attorneys' fees, retainers, court costs, transcripts, fees of experts, witness
fees, travel expenses, food and lodging expenses while traveling, duplicating
costs, printing and binding costs, telephone charges, postage, delivery
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service, freight or other transportation fees and expenses, (c) all other
disbursements and out-of-pocket expenses, (d) amounts paid in settlement, to the
extent not prohibited by Delaware Law, and (e) reasonable compensation for time
spent by Indemnitee for which he is otherwise not compensated by the Company or
any third party, actually and reasonably incurred in connection with or arising
out of a Proceeding, including a Proceeding by Indemnitee to establish or
enforce a right to indemnification under this Agreement, applicable law or
otherwise.
1.5 "Independent Counsel" shall mean a law firm or a member of a law
firm that neither is presently nor in the past five (5) years has been retained
to represent: (a) the Company, an affiliate of the Company or Indemnitee in any
matter material to either party or (b) 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 Company or Indemnitee in an
action to determine Indemnitee's right to indemnification under this Agreement.
1.6 "Liabilities" shall mean liabilities of any type whatsoever,
including, but not limited to, judgments or fines, ERISA or other excise taxes
and penalties, and amounts paid in settlement (including all interest,
assessments or other charges paid or payable in connection with any of the
foregoing) actually and reasonably incurred by Indemnitee in connection with a
Proceeding.
1.7 "Proceeding" shall mean any pending, threatened or completed
action, hearing, suit or any other proceeding, whether civil, criminal,
arbitrative, administrative, investigative or any alternative dispute resolution
mechanism, including without limitation any such Proceeding brought by or in the
right of the Company.
2. Employment Rights and Duties. Subject to any other obligations
imposed on either of the parties by contract or by law, and with the
understanding that this Agreement is not intended to confer employment rights on
either party which they did not possess on the date of its execution, Indemnitee
agrees to serve as a director or officer so long as he is duly appointed or
elected and qualified in accordance with the applicable provisions of the
Certificate of Incorporation (the "Certificate") and Bylaws (the "Bylaws") of
the Company or any subsidiary of the Company and until such time as he resigns
or fails to stand for election or until his employment, if any, terminates.
Indemnitee may from time to time also perform other services at the request, or
for the convenience of, or otherwise benefiting the Company. Indemnitee may at
any time and for any reason resign or be removed from such position (subject to
any other contractual obligation or other obligation imposed by operation of
law), in which event the Company shall have no obligation under this Agreement
to continue Indemnitee in any such position.
3. Indemnification. The Company shall indemnify Indemnitee to the
fullest extent authorized or permitted by Delaware Law and the provisions of the
Certificate and Bylaws of the Company in effect on the date hereof, and as
Delaware Law, the Certificate and Bylaws may from time to time be amended (but,
in the case of any such amendment, only to the extent such amendment permits the
Company to provide broader indemnification rights than Delaware Law, the
Certificate and/or Bylaws permitted the Company to provide before such
amendment). The
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right to indemnification conferred in the Certificate shall be presumed to have
been relied upon by Indemnitee in serving or continuing to serve the Company as
a director or officer and shall be enforceable as a contract right. Without in
any way diminishing the scope of the indemnification provided by the Certificate
and this Section 3, the Company shall indemnify Indemnitee if and whenever he is
or was a witness, party or is threatened to be made a witness or a party to any
Proceeding, by reason of the fact that he is or was an Agent or by reason of
anything done or not done, or alleged to have been done or not done, by him in
such capacity, against all Expenses and Liabilities actually and reasonably
incurred by Indemnitee or on his behalf in connection with the investigation,
defense, settlement or appeal of such Proceeding. In addition to, and not as a
limitation of, the foregoing, the rights of indemnification of Indemnitee
provided under this Agreement shall include those rights set forth in Sections
4, 5 and 6 below.
4. Payment of Expenses.
4.1 All Expenses incurred by or on behalf of Indemnitee shall be
advanced by the Company to Indemnitee within twenty (20) days after the receipt
by the Company of a written request for such advance which may be made from time
to time, whether prior to or after final disposition of a Proceeding (unless
there has been a final determination by a court of competent jurisdiction that
Indemnitee is not entitled to be indemnified for such Expenses). Indemnitee's
entitlement to advancement of Expenses shall include those incurred in
connection with any Proceeding by Indemnitee seeking a determination, an
adjudication or an award in arbitration pursuant to this Agreement. The requests
shall reasonably evidence the Expenses incurred by Indemnitee in connection
therewith. Indemnitee hereby undertakes to repay the amounts advanced if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
pursuant to the terms of this Agreement.
4.2 Notwithstanding any other provision in this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any Proceeding, Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by Indemnitee in connection therewith.
5. Procedure for Determination of Entitlement to Indemnification.
5.1 Whenever Indemnitee believes that he is entitled to indemnification
pursuant to this Agreement, Indemnitee shall submit a written request for
indemnification (the "Indemnification Request") to the Company to the attention
of the President with a copy to the Secretary. This request shall include
documentation or information which is necessary for the determination of
entitlement to indemnification and which is reasonably available to Indemnitee.
Determination of Indemnitee's entitlement to indemnification shall be made no
later than forty-five (45) days after receipt of the Indemnification Request.
The President or the Secretary shall, promptly upon receipt of Indemnitee's
request for indemnification, advise the Board in writing that Indemnitee has
made such request for indemnification.
5.2 The Indemnification Request shall set forth Indemnitee's selection
of which of the following forums shall determine whether Indemnitee is entitled
to indemnification:
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(a) A majority vote of Directors who are not parties to the action with
respect to which indemnification is sought, even though less than a quorum.
(b) A written opinion of an Independent Counsel (provided there are no
such Directors as set forth in (a) above or if such Directors as set forth in
(a) above so direct).
(c) A majority vote of the stockholders at a meeting at which a quorum
is present, with the shares owned by the person to be indemnified not being
entitled to vote thereon.
(d) The court in which the Proceeding is or was pending upon
application by Indemnitee.
The Company agrees to bear any and all costs and expenses incurred by
Indemnitee or the Company in connection with the determination of Indemnitee's
entitlement to indemnification by any of the above forums.
6. Presumptions and Effect of Certain Proceedings. No initial finding
by the Board, its counsel, Independent Counsel, arbitrators or the stockholders
shall be effective to deprive Indemnitee of the protection of this indemnity,
nor shall a court or other forum to which Indemnitee may apply for enforcement
of this indemnity give any weight to any such adverse finding in deciding any
issue before it. Upon making a request for indemnification, Indemnitee shall be
presumed to be entitled to indemnification under this Agreement and the Company
shall have the burden of proof to overcome that presumption in reaching any
contrary determination. The termination of any Proceeding by judgment, order,
settlement, arbitration award or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, (a) adversely affect the rights of
Indemnitee to indemnification except as indemnification may be expressly
prohibited under this Agreement, (b) create a presumption that Indemnitee did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company or (c) with respect to any
criminal action or proceeding, create a presumption that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee in Cases of Determination not to Indemnify or
to Advance Expenses.
7.1 In the event that (a) an initial determination is made that
Indemnitee is not entitled to indemnification, (b) advances for Expenses are not
made when and as required by this Agreement, (c) payment has not been timely
made following a determination of entitlement to indemnification pursuant to
this Agreement or (d) Indemnitee otherwise seeks enforcement of this Agreement,
Indemnitee shall be entitled to a final adjudication in an appropriate court of
the State of Colorado of his entitlement to such indemnification or advance.
Alternatively, Indemnitee at his option may seek an award in arbitration. If the
parties are unable to agree on an arbitrator, the parties shall provide the
American Arbitration Association ("AAA") with a statement of the nature of the
dispute and the desired qualifications of the arbitrator. AAA will then provide
a list of three available arbitrators. Each party may strike one of the names on
the list, and the remaining person will serve as the arbitrator. If both parties
strike the same person, AAA will select the arbitrator from the other two names.
The arbitration award shall be made within ninety (90) days following the demand
for arbitration. The arbitration shall take place in
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Denver or Boulder, Colorado, and except as set forth herein, the provisions of
Delaware law shall apply to any such arbitration. The Company shall not oppose
Indemnitee's right to seek any such adjudication or arbitration award. In any
such proceeding or arbitration Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the burden of
proof to overcome that presumption.
7.2 An initial determination, in whole or in part, that Indemnitee is
not entitled to indemnification shall create no presumption in any judicial
proceeding or arbitration that Indemnitee has not met the applicable standard of
conduct for, or is otherwise not entitled to, indemnification.
7.3 If an initial determination is made or deemed to have been made
pursuant to the terms of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in the absence
of (a) a misrepresentation of a material fact by Indemnitee in the request for
indemnification or (b) a specific finding (which has become final) by a court of
competent jurisdiction that all or any part of such indemnification is expressly
prohibited by law.
7.4 The Company and Indemnitee agree herein that a monetary remedy for
breach of this Agreement, at some later date, will be inadequate, impracticable
and difficult of proof, and further agree that such breach would cause
Indemnitee irreparable harm. Accordingly, the Company and Indemnitee agree that
Indemnitee shall be entitled to temporary and permanent injunctive relief to
enforce this Agreement without the necessity of proving actual damages or
irreparable harm. The Company and Indemnitee further agree that Indemnitee shall
be entitled to such injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the necessity of
posting bond or other undertaking in connection therewith. Any such requirement
of bond or undertaking is hereby waived by the Company, and the Company
acknowledges that in the absence of such a waiver, a bond or undertaking may be
required by the court.
7.5 The Company shall be precluded from asserting that the procedures
and presumptions of this Agreement are not valid, binding and enforceable. The
Company shall stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this Agreement and is precluded from
making any assertion to the contrary.
7.6 Expenses incurred by Indemnitee in connection with his request for
indemnification under, seeking enforcement of or to recover damages for breach
of this Agreement shall be borne and advanced by the Company.
8. Other Rights to Indemnification. Indemnitee's rights of
indemnification and advancement of expenses provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may now or in the
future be entitled under applicable law, the Certificate, the Bylaws, an
employment agreement, a vote of stockholders or Disinterested Directors,
insurance or other financial arrangements or otherwise.
9. Limitations on Indemnification. No indemnification pursuant to
Section 3 shall be paid by the Company nor shall Expenses be advanced pursuant
to Section 4:
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9.1 Insurance. To the extent that Indemnitee is reimbursed pursuant to
such insurance (or any other source referenced in Section 8 hereof or in Article
V, paragraph 2 of the Certificate) (collectively, "Other Sources") as may exist
for Indemnitee's benefit. Notwithstanding the availability of such Other
Sources, Indemnitee also may claim indemnification from the Company pursuant to
this Agreement by assigning to the Company any claims under Other Sources to the
extent Indemnitee is paid by the Company. Indemnitee shall reimburse the Company
for any sums he receives as indemnification from Other Sources to the extent of
any amount paid to him for that purpose by the Company;
9.2 Section 16(b). On account and to the extent of any wholly or
partially successful claim 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) or the Securities Exchange Act of 1934, as
amended, and amendments thereto or similar provisions of any federal, state or
local statutory law;
9.3 Action by or in Right of the Company. In connection with a judicial
action by or in the right of the Company, in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged to be liable for gross
negligence or intentional misconduct in the performance of his duty to the
Company unless, and only to the extent that, any court in which such action was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnity for such expenses as such court shall deem
proper;
9.4 Improper Personal Benefit. If it is proved by final judgment in a
court of law or other final adjudication to have been based upon or attributable
to Indemnitee's having gained any personal profit or advantage to which he was
not legally entitled;
9.5 Indemnitee's Proceedings. Except as otherwise provided in this
Agreement, in connection with all or any part of a Proceeding which is initiated
or maintained by or on behalf of Indemnitee, or any Proceeding by Indemnitee
against the Company or its directors, officers, employees or other agents,
unless (a) such indemnification is expressly required to be made by Delaware
Law, (b) the Proceeding was authorized by a majority of the Disinterested
Directors or (c) such indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the Company under Delaware Law; or
9.6 Legal Prohibition. For any judgment, fine or penalty which the
Company is prohibited by applicable law from paying as indemnity or for any
other reason.
10. Duration and Scope of Agreement; Binding Effect. This Agreement
shall continue so long as Indemnitee shall be subject to any possible Proceeding
subject to indemnification by reason of the fact that he is or was an Agent and
shall be applicable to Proceedings commenced or continued after execution of
this Agreement, whether arising from acts or omissions occurring before or after
such execution. This Agreement shall be binding upon the Company and its
successors and assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Company) and shall inure to the benefit of Indemnitee and his
spouse, assigns, heirs, devisees, executors, administrators and other legal
representatives.
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11. Notice by Indemnitee and Defense of Claims. Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter which may be subject to indemnification hereunder,
whether civil, criminal, arbitrative, administrative or investigative; but the
omission so to notify the Company will not relieve it from any liability which
it may have to Indemnitee if such omission does not actually prejudice the
Company's rights and, if such omission does prejudice the Company's rights, it
will relieve the Company from liability only to the extent of such prejudice;
nor will such omission relieve the Company from any liability which it may have
to Indemnitee otherwise than under this Agreement. With respect to any
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 jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election so to
assume the defense thereof and the assumption of such defense, the Company will
not be liable to Indemnitee under this Agreement for any attorney fees or costs
subsequently incurred by Indemnitee in connection with Indemnitee's defense
except as otherwise provided below. Indemnitee shall have the right to employ
his counsel in such Proceeding but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
and the assumption of such defense 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 that the Company's counsel may not be adequately representing
Indemnitee 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 counsel shall be at the expense of the Company; and
(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 its written consent. The Company shall not settle any action or claim
which would impose any limitation or penalty on Indemnitee without Indemnitee's
written consent. Neither the Company nor Indemnitee will unreasonably withhold
its or his consent to any proposed settlement.
11.2 Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be unavailable to
Indemnitee in whole or part, the Company shall, in such an event, after taking
into account, among other things, contributions by other directors and officers
of the Company pursuant to indemnification agreements or otherwise, and, in the
absence of personal enrichment, acts of intentional fraud or dishonesty or
criminal conduct on the part of Indemnitee, contribute to the payment of
Indemnitee's losses to the extent that, after other contributions are taken into
account, such losses exceed: (a) in the case of a director of the Company or any
of its subsidiaries who is not an officer of the Company or any of such
subsidiaries, the amount of fees paid to the director for serving as a director
during the twelve (12) months preceding the commencement of the Proceeding; or
(b) in the case of a director of the Company or any of its subsidiaries who is
also an officer of the Company or any of such
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subsidiaries, the amount set forth in clause (a) plus five percent (5%) of the
aggregate cash compensation paid to said director for service in such office(s)
during the twelve (12) months preceding the commencement of the Proceeding; or
(c) in the case of an officer of the Corporation or any of its subsidiaries,
five percent (5%) of the aggregate cash compensation paid to such officer for
service in such office(s) during the twelve (12) months preceding the
commencement of such Proceeding.
12. Miscellaneous Provisions.
12.1 Severability; Partial Indemnity. If any provision or provisions of
this Agreement (or any portion thereof) shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable for any reason whatever:
(a) such provision shall be limited or modified in its application to the
minimum extent necessary to avoid the invalidity, illegality or unenforceability
of such provision; (b) the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby; and (c) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision (or portion thereof) held invalid, illegal or unenforceable. If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any Expenses or Liabilities of any type
whatsoever incurred by him in the investigation, defense, settlement or appeal
of a Proceeding but not entitled to all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for such total amount except as to the
portion thereof for which it has been determined pursuant to Section 5 hereof
that Indemnitee is not entitled.
12.2 Identical Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart, signed by the party against whom enforceability is
sought, needs to be produced to evidence the existence of this Agreement.
12.3 Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent now or hereafter not
prohibited by law.
12.4 Headings. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
12.5 Pronouns. Use of the masculine pronoun shall be deemed to include
use of the feminine pronoun where appropriate.
12.6 Modification and Waiver. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by both of the
parties to this Agreement. No waiver of any provision of this Agreement shall be
deemed to constitute a waiver of any of the provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver. No waiver of any
provision of this Agreement shall be effective unless executed in writing.
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12.7 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (a)
delivered by hand (by express courier or otherwise) and receipted for by the
party to whom said notice or other communication shall have been directed or (b)
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed, as follows:
(i) If to Indemnitee:
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(ii) If to the Company: SignalSoft Corporation
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: President
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
12.8 Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, as applied to contracts between Delaware residents entered
into and to be performed entirely within Delaware.
12.9 Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Colorado
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 brought only in the state courts of the State of Colorado.
12.10 Entire Agreement. This Agreement represents the entire agreement
between the parties hereto, and there are no other agreements, contracts or
understanding between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Sections 3 and 8 hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
SIGNALSOFT CORPORATION
By:
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Name:
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Title:
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INDEMNITEE
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Name:
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Directors and Officers Indemnity Agreement Signature Page
