DIGITAL VIDEO SYSTEMS, INC. INDEMNIFICATION AGREEMENT
Exhibit
10.1
DIGITAL
VIDEO SYSTEMS, INC.
This
Indemnification Agreement (the “Agreement”)
is
effective as of April 11, 2007 by and between Digital Video Systems, Inc.,
a
Delaware corporation (the “Company”)
and____________ (the “Indemnitee”).
WHEREAS,
the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and its related
entities;
WHEREAS,
in order to induce Indemnitee to continue to provide services to the Company,
the Company wishes to provide for the indemnification of, and the advancement
of
expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS,
the Company and Indemnitee recognize the continued difficulty in obtaining
liability insurance for the Company’s directors, officers, employees, agents and
fiduciaries, the significant increases in the cost of such insurance and the
general reductions in the coverage of such insurance;
WHEREAS,
the Company and Indemnitee further recognize the substantial increase in
corporate litigation in general, subjecting directors, officers, employees,
agents and fiduciaries to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited;
and
WHEREAS,
in view of the considerations set forth above, the Company desires that
Indemnitee shall be indemnified and advanced expenses by the Company as set
forth herein;
NOW,
THEREFORE, the Company and the Indemnitee hereby agree as set forth
below.
1. Certain
Definitions
(a) “Change
in Control”
shall
mean an event that shall be deemed to have occurred if, on or after the date
of
this Agreement, (i) any “person”
(as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of
1934, as amended (the “Exchange
Act”),
other
than a trustee or other fiduciary holding securities under an employee benefit
plan of the company acting in such capacity 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, who becomes the
“beneficial
owner”
(as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% 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 (2/3) of the directors then still in office who either
were
directors 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 or immediately prior thereto continuing to represent (either
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
related transactions) all or substantially all of the Company’s assets.
(b) “Claim”
shall
mean, with respect to a Covered Event, any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution mechanism, or any
hearing, inquiry or investigation that Indemnitee in good faith believes might
lead to the institution of any such action, suit, proceeding or alternative
dispute resolution mechanism, whether civil, criminal, administrative,
investigative or other.
(c) References
to the “Company”
shall
include, in addition to Digital Video Systems, Inc., any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger to which Digital Video Systems, Inc. (or any of its wholly owned
subsidiaries) is a party 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 or fiduciary of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer,
employee, 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.
(d) “Covered
Event”
shall
mean any event or occurrence related to the fact that Indemnitee is or was
a
director, officer, employee, 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, 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.
(e) “Expenses”
shall
mean 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, to be a witness in or to participate in, any action, suit, proceeding,
alternative
dispute resolution mechanism, hearing, inquiry or investigation), judgments,
fines, penalties and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably withheld),
actually and reasonably incurred, of any Claim and any federal, state, local
or
foreign taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement.
(f) “Expense
Advance”
shall
mean a payment to Indemnitee, pursuant to Section 3 hereof, of Expenses in
advance of the settlement of or final judgment in any action, suit, proceeding
or alternative dispute resolution mechanism, hearing, inquiry or investigation
which constitutes a Claim.
(g) “Independent
Legal Counsel”
shall
mean an attorney or firm of attorneys, selected in accordance with the
provisions of Section 2(d) hereof, who shall not have otherwise performed
services for the Company or Indemnitee within the last three years (other than
with respect to matters concerning the rights of Indemnitee under this
Agreement, or of other indemnitees under similar indemnity agreements).
(h) References
to “other
enterprises”
shall
include employee benefit plans; references to “fines”
shall
include any excise taxes assessed on 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 Indemnitee acted in good faith
and
in a manner Indemnitee reasonably believed to be in the interest 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.
(i) “Reviewing
Party”
shall
mean, subject to the provisions of Section 2(d) hereof, any person or body
appointed by the Board of Directors in accordance with applicable law to review
the Company’s obligations hereunder and under applicable law, which may include
a member or members of the Company’s Board of Directors or Independent Legal
Counsel.
(j) “Section”
refers
to a section of this Agreement unless otherwise indicated.
(k) “Voting
Securities”
shall
mean any securities of the Company that vote generally in the election of
directors.
2. Indemnification.
(a) Indemnification
of Expenses. Subject to the provisions of Section 2(b) below, the Company shall
indemnify Indemnitee for Expenses 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
Claim
(whether by reason of or arising in part out of a Covered Event), including
all
interest, assessments and other charges paid or payable in connection with
or in
respect of such Expenses.
(b) Review
of
Indemnification Obligations. Notwithstanding the foregoing, in the event any
Reviewing Party shall have determined (in a written opinion, in any case in
which Independent Legal Counsel is the Reviewing Party) that Indemnitee is
not
entitled to be indemnified hereunder under applicable law, (i) the Company
shall
have no further obligation under Section 2(a) hereof to make any payments to
Indemnitee not made prior to such determination by such Reviewing Party, and
(ii) the Company shall be entitled to be reimbursed by Indemnitee (who hereby
agrees to reimburse the Company) for all Expenses theretofore paid in
indemnifying Indemnitee; provided, however, that if Indemnitee has commenced
or
thereafter commences legal proceedings in a court of competent jurisdiction
to
secure a determination that Indemnitee is entitled to be indemnified hereunder
under applicable law in accordance with Section 2(c) hereof, then any
determination made by any Reviewing Party that, under applicable law, Indemnitee
is not entitled to be indemnified hereunder shall not be binding, and, until
a
final judicial determination is made with respect to such legal proceedings
(as
to which all rights of appeal therefrom have been exhausted or lapsed), (x)
Indemnitee shall not be required to reimburse the Company for any Expenses
theretofore paid in indemnifying Indemnitee and (y) Indemnitee shall be entitled
to receive interim payments of Expenses pursuant to Section 2(a) hereof.
Indemnitee’s obligation to reimburse the Company for any Expenses shall be
unsecured and no interest shall be charged thereon.
(c) Indemnitee
Rights on Unfavorable Determination; Binding Effect. If any Reviewing Party
determines that Indemnitee substantively is not entitled to be indemnified
hereunder 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 such Reviewing Party or any aspect
thereof, including the legal or factual bases therefor, and, subject to the
provisions of Section 15 hereof, the Company hereby consents to service of
process and to appear in any such proceeding. Absent such litigation, any
determination by any Reviewing Party shall be conclusive and binding on the
Company and Indemnitee.
(d) Selection
of Reviewing Party; Change in Control. If there has not been a Change in
Control, any Reviewing Party shall be selected by the Board of Directors. 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), any Reviewing Party
with
respect to all matters thereafter arising concerning the rights of Indemnitee
to
indemnification of Expenses under this Agreement or any other agreement, or
under the Company’s Certificate of Incorporation or Bylaws as now or hereafter
in effect, or under any other applicable law, if desired by Indemnitee, shall
be
Independent Legal Counsel 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
entitled to be indemnified hereunder under applicable law and the Company agrees
to abide by such opinion. The Company agrees to pay the reasonable fees of
the
Independent Legal Counsel referred to above and to indemnify fully such counsel
against any and all expenses (including attorneys’ fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto. Notwithstanding any other provision of this Agreement, the
Company shall not be required to pay Expenses of more than one Independent
Legal
Counsel in connection with all matters concerning a single Indemnitee, and
such
Independent Legal Counsel shall be the Independent Legal Counsel for any or
all
other Indemnitees unless (i) the Company otherwise determines or (ii) any
Indemnitee shall provide a written statement setting forth in detail a
reasonable objection to such Independent Legal Counsel representing other
indemnitees.
(e) Mandatory
Payment of Expenses. Notwithstanding any other provision of this Agreement
other
than Section 10 hereof, to the extent that Indemnitee has been successful on
the
merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense of any Claim, Indemnitee shall be indemnified
against all Expenses incurred by Indemnitee in connection therewith.
3. Expense
Advances.
(a) Obligation
to Make Expense Advances. Upon receipt of a written undertaking by or on behalf
of the Indemnitee to repay such amounts if it shall ultimately be determined
that the Indemnitee is not entitled to be indemnified therefor by the Company,
the Company shall make Expense Advances to Indemnitee.
(b) Form
of
Undertaking. Any obligation to repay any Expense Advances hereunder pursuant
to
a written undertaking by the Indemnitee shall be unsecured and no interest
shall
be charged thereon.
(c) Determination
of Reasonable Expense Advances. The parties agree that for the purposes of
any
Expense Advance for which Indemnitee has made written demand to the Company
in
accordance with this Agreement, all Expenses included in such Expense Advance
that are certified by affidavit of Indemnitee’s counsel as being reasonable
shall be presumed conclusively to be reasonable.
4. Procedures
for Indemnification and Expense Advances.
(a) Timing
of
Payments. All payments of Expenses (including, without limitation, Expense
Advances) by the Company to the Indemnitee pursuant to this Agreement shall
be
made to the fullest extent permitted by law as soon as practicable after written
demand by Indemnitee therefor is presented to the Company, but in no event
later
than forty-five (45) business days after such written demand by Indemnitee
is
presented to the Company, except in the case of Expense Advances, which shall
be
made no later than twenty (20) days after such written demand by Indemnitee
is
presented to the Company.
(b) Notice/Cooperation
by Indemnitee. Indemnitee shall, as a condition precedent to Indemnitee’s right
to be indemnified or Indemnitee’s right to receive Expense Advances under this
Agreement, give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or could be sought
under this Agreement. Notice to the Company shall be directed to the Chief
Executive Officer of the Company at the address shown on the signature page
of
this Agreement (or such other address as the Company shall designate in writing
to Indemnitee). In addition, Indemnitee shall give the Company such information
and cooperation as it may reasonably require and as shall be within Indemnitee’s
power.
(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 this Agreement or applicable law.
In
addition, it is the parties’ intention that if Indemnitee commences legal
proceedings to secure a judicial determination that Indemnitee should be
indemnified under this Agreement or applicable law, the question of Indemnitee’s
right to indemnification shall be for the court to decide, and neither the
failure of any 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 any Reviewing Party that Indemnitee
has
not met such standard of conduct or did not have such belief, , 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 any Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder, the burden
of
proof shall be on the Company to establish by clear and convincing evidence
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 the respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such Claim in accordance with
the
terms of such policies.
(e) Selection
of Counsel. In the event the Company shall be obligated hereunder to provide
indemnification for or make any Expense Advances with respect to the Expenses
of
any Claim, the company, if appropriate, shall be entitled to assume the defense
of such Claim with counsel approved by Indemnitee (which approval shall not
be
unreasonably withheld) upon the delivery to Indemnitee of written notice of
the
Company’s 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
or
expenses of separate counsel subsequently employed by or on behalf of Indemnitee
with respect to the same Claim;
provided
that (i) Indemnitee shall have the right to employ Indemnitee’s separate counsel
in any such Claim at Indemnitee’s expense and (ii) if (A) the employment of
separate counsel by Indemnitee has been previously authorized by the Company,
(B) Indemnitee shall have reasonably concluded that there may be 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 separate counsel shall be
Expenses for which Indemnitee may receive indemnification or Expense Advances
hereunder.
5. Additional
Indemnification Rights; Nonexclusivity.
(a) Scope.
The Company hereby agrees to indemnify the Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company’s Certificate
of Incorporation, 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 Delaware corporation to indemnify a member of its board
of directors or an officer, employee, 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 Delaware 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 10(a) hereof.
(b) Nonexclusivity.
The
indemnification and the payment of Expense Advances 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 other agreement, any
vote of stockholders or disinterested directors, the General Corporation Law
of
the State of Delaware, or otherwise. The indemnification and the payment of
Expense Advances provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity
even
though subsequent thereto 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 Indemnitee to the extent Indemnitee
has
otherwise actually received payment (under any insurance policy, provision
of
the Company’s Certificate of Incorporation, Bylaws or otherwise) of the amounts
otherwise payable hereunder.
7. Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a 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.
Both
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, agents or fiduciaries under this Agreement
or
otherwise. 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 right under public
policy to indemnify Indemnitee.
9. Liability
Insurance.
To the
extent the Company maintains liability insurance applicable to directors,
officers, employees, agents or fiduciaries, Indemnitee shall be covered by
such
policies in such a manner as to provide Indemnitee the same rights and benefits
as are provided to the most favorably insured of the Company’s directors, if
Indemnitee is a director; or of the Company’s officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company’s key employees,
agents or fiduciaries, if Indemnitee is not an officer or director but is a
key
employee, agent or fiduciary.
10. Exceptions.
Notwithstanding any other provision of this Agreement, the Company shall not
be
obligated pursuant to the terms of this Agreement:
(a) Excluded
Action or Omissions.
To
indemnify Indemnitee for Expenses resulting from acts, omissions or transactions
for which Indemnitee is prohibited from receiving indemnification under this
Agreement or applicable law; provided,
however,
that
notwithstanding any limitation set forth in this Section 10(a) regarding the
Company’s obligation to provide indemnification, Indemnitee shall be entitled
under Section 3 hereof to receive Expense Advances hereunder with respect to
any
such Claim unless and until a court having jurisdiction over the Claim shall
have made a final judicial determination (as to which all rights of appeal
therefrom have been exhausted or lapsed) that Indemnitee has engaged in acts,
omissions or transactions for which Indemnitee is prohibited from receiving
indemnification under this Agreement or applicable law.
(b) Claims
Initiated by Indemnitee.
To
indemnify or make Expense Advances to Indemnitee with respect to Claims
initiated or brought voluntarily by Indemnitee and not by way of defense,
counterclaim or crossclaim, except (i) with respect to actions or proceedings
brought to establish or enforce a right to indemnification 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
Covered 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
Section 145 of the Delaware General Corporation Law, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification
or
insurance recovery, as the case may be.
(c) Lack
of Good Faith.
To
indemnify Indemnitee for any Expenses incurred by the Indemnitee with respect
to
any action instituted (i) by Indemnitee to
enforce
or interpret this Agreement, if a court having jurisdiction over such action
determines as provided in Section 13 hereof that each of the material assertions
made by the Indemnitee as a basis for such action was not made in good faith
or
was frivolous, or (ii) by or in the name of the Company to enforce or interpret
this Agreement, if a court having jurisdiction over such action determines
as
provided in Section 13 hereof that each of the material defenses asserted by
Indemnitee in such action was made in bad faith or was frivolous.
(d) 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, as amended, or any similar successor statute; provided,
however,
that
notwithstanding any limitation set forth in this Section 10(d) regarding the
Company’s obligation to provide indemnification, Indemnitee shall be entitled
under Section 3 hereof to receive Expense Advances hereunder with respect to
any
such Claim unless and until a court having jurisdiction over the Claim shall
have made a final judicial determination (as to which all rights of appeal
therefrom have been exhausted or lapsed) that Indemnitee has violated said
statute.
11. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
12. 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 or assets of the Company), spouses,
heirs and personal and legal representatives. The Company shall require and
cause any successor (whether direct or indirect, and whether by purchase,
merger, consolidation or otherwise) to all, substantially all, or a substantial
part, of the business 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 regardless of whether Indemnitee continues to serve
as
a director, officer, employee, agent or fiduciary (as applicable) of the Company
or of any other enterprise at the Company’s request.
13. Expenses
Incurred in Action Relating to Enforcement or Interpretation.
In the
event that any action is instituted by 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, Indemnitee shall be entitled
to be
indemnified for all Expenses incurred by Indemnitee with respect to such action
(including without limitation attorneys’ fees), regardless of whether Indemnitee
is ultimately successful in such action, unless as a part of such action a
court
having jurisdiction over such action makes a final judicial determination (as
to
which all rights of appeal therefrom have been exhausted or lapsed) that each
of
the material assertions made by Indemnitee as a basis for such action was not
made in good faith or was frivolous; provided,
however,
that
until such final judicial determination is made, Indemnitee shall be entitled
under Section 3 hereof to receive payment of Expense Advances hereunder with
respect to such action. 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 indemnified for all Expenses
incurred by Indemnitee in defense of such action (including without limitation
costs and expenses incurred with respect to Indemnitee’s counterclaims and
cross-claims made in such action), unless as a part of such action a court
having jurisdiction over such action makes a final judicial determination (as
to
which all rights of appeal therefrom have been exhausted or lapsed) that each
of
the material defenses asserted by Indemnitee in such action was made in bad
faith or was frivolous; provided,
however,
that
until
such
final judicial determination is made, Indemnitee shall be entitled under Section
3 hereof to receive payment of Expense Advances hereunder with respect to such
action.
14. Notice.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed duly given (i) if delivered by hand and signed
for by the party addressed, on the date of such delivery, or (ii) if mailed
by
domestic certified or registered mail with postage prepaid, on the third
business day after the date postmarked. Addresses for notice to either party
are
as shown on the signature page of this Agreement, or as subsequently modified
by
written notice.
15. Consent
to Jurisdiction.
The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction
of
the courts of the State of Delaware 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 Court of Chancery of the State of Delaware in and
for
New Castle County, which shall be the exclusive and only proper forum for
adjudicating such a claim.
16. 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 the Agreement (including without limitation 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.
17. Choice
of Law.
This
Agreement, and all rights, remedies, liabilities, powers and duties of the
parties to this Agreement, shall be governed by and construed in accordance
with
the laws of the State of Delaware without regard to principles of conflicts
of
laws.
18. 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.
19. Amendment
and Termination.
No
amendment, modification, termination or cancellation of this Agreement shall
be
effective unless it is in writing signed by both the parties hereto. No waiver
of any of the provisions of this Agreement shall be deemed to be or shall
constitute a waiver of any other provisions hereof (whether or not similar),
nor
shall such waiver constitute a continuing waiver.
20. 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.
21. No
Construction as Employment Agreement.
Nothing
contained in this Agreement shall be construed as giving Indemnitee any right
to
be retained in the employ of the Company or any of its subsidiaries or
affiliated entities.
IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement
as of the date first above written.
DIGITAL
VIDEO SYSTEMS, INC.
By:___________________________
Name:
Mali Kuo
Title:
Chairman and CEO
AGREED
TO
AND ACCEPTED
INDEMNITEE:
______________________________________________
(signature)
Name:_________________________________________
Address:
