INDEMNIFICATION AGREEMENT
Exhibit
2.4
This
Indemnification Agreement (this “Agreement”),
made
as of October 20, 2006, among Wireless Holdings, Inc., a Florida corporation
(the “Company”)
and
Xxxxxx Xxxx (the “Indemnitee”
or
“Director”).
RECITALS:
WHEREAS,
Xx. Xxxx is willing to continue to serve as a director of the Company on the
condition that in his capacity as a director of the Company after the Effective
Time, he be indemnified to the fullest extent permitted by law; and
WHEREAS,
concurrently with the execution of this Agreement, the Director is agreeing
to
continue to serve as a director of the Company after the Effective Time until
his resignation as a director of the Company is effective upon compliance by
the
Company with the provisions of Section 14(f) of the Securities Exchange Act
of
1934, as amended (the “Exchange
Act”),
and
Rule 14f-1 promulgated thereunder.
NOW,
THEREFORE, in consideration of the premises and the covenants herein contained,
the Company and the Indemnitee hereby agree as follows:
1. Agreement
to Serve.
The
Director agrees to continue to serve as a director of the Company after the
Effective Time hereof until his resignation as a director of the Company is
effective upon compliance by the Company with Section 14(f) of the Exchange
Act
and Rule 14f-1 promulgated thereunder.
2. Definitions.
As used
in this Agreement:
(a) “Code”
means
the Internal Revenue Code of 1986, as amended.
(b) “Effective
Time”
shall
have the same meaning as in the Agreement of Merger and Plan of Reorganization,
dated as of the date hereof, among the Company, Wireless Acquisition Holdings
Corp. and H2Diesel, Inc.
(c) “Expenses”
includes, without limitation, all costs, expenses and obligations (including
attorneys’ fees and disbursements, court costs, travel expenses and fees of
experts) incurred or paid in connection with investigating, defending, being
a
witness in or participating in, or preparing to defend, any Proceeding, whether
conducted by the Company or otherwise, including, without limitation, any
Proceeding, action or process for the purpose of establishing Indemnitee’s right
to indemnification under this Agreement and any amounts paid in settlement
by or
on behalf of Indemnitee.
(d) “Independent
Legal Counsel”
means
legal counsel who or which has not provided or performed services for the
Company, any of its directors, officers or the Indemnitee for the last three
years and is not otherwise representing any party to any Proceeding, other
than
legal services rendered as an independent legal counsel in any prior
determination regarding indemnification under this Agreement or any similar
agreement with any other director or officer.
(e) “Official
Capacity”
means
the elective or appointive office in the Company held by the director and/or
officer.
(f) “Person”
shall
mean any individual, corporation, partnership, joint venture, limited liability
company or other entity.
(g) “Proceeding”
includes any threatened, pending or completed action, suit or proceeding,
whether of a civil, criminal, administrative, arbitrative or investigative
nature (including all appeals therefrom), or any inquiry or investigation that
could lead to such an action, suit or proceeding.
(h) References
to “other
enterprise”
shall
include employee benefit plans; references to “fines”
shall
include any excise tax assessed with respect to any employee benefit plan;
references to “serving
at the request of the Company”
shall
include any service as a director, officer, employee or agent of the Company
that imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants
or
beneficiaries; and a person who is determined to have acted in good faith and
in
a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a
manner “he
reasonably believed to be in or not opposed to the best interests of the
Company,”
as
referred to in this Agreement.
3. Indemnity.
The
Company shall indemnify the Indemnitee to the fullest extent permitted by law
if
the Indemnitee was, is or becomes a party to or is threatened to be made a
party
to or otherwise involved (as a witness or otherwise) in any Proceeding because
the Director is or was, after the Effective Time, a director, officer, employee,
trustee, agent or fiduciary of the Company or is or was serving, after the
Effective Time, at the request of the Company as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust or other enterprise, against all Expenses, judgments,
amounts paid in settlement, fines and penalties (including excise and similar
taxes) (each, a “Claim”
and
collectively, “Claims”)
incurred by the Indemnitee in connection with the defense or settlement of
such
Proceeding, but only if it is determined pursuant to Section
4
that the
Director acted in good faith and (a) in the case of conduct in his Official
Capacity, in a manner he reasonably believed to be in the best interests of
the
Company; (b) in all other cases, in a manner he reasonably believed to be in
or
not opposed to the best interests of the Company and (c) in the case of a
criminal proceeding, had no reasonable cause to believe that his conduct was
unlawful. No indemnification will be made to the Indemnitee with respect to
any
Proceeding relating to any actions and/or omissions occurring prior to, and
including, the Effective Time or in which the Director shall have been found
liable for willful or intentional misconduct in the performance of his duty
to
the Company or for any grossly negligent act or omission. The termination of
any
such Proceeding by judgment, order of court, settlement, conviction, or upon
a
plea of nolo contendere or its equivalent, shall not, of itself, determine
that
Indemnitee did not act in good faith and in a manner he reasonably believed
to
be in or not opposed to the best interests of the Company or, with respect
to
any criminal proceeding, that such person had reasonable cause to believe that
his conduct was unlawful. The Indemnitee shall be deemed to have been found
liable in respect of any claim, issue or matter only after they have been so
adjudged by a court of competent jurisdiction after exhaustion of all appeals
therefrom. The Indemnitee shall, as a condition precedent to be
indemnified under this
2
Agreement,
give to the Company notice in writing as soon as practicable of any Claims
made
against the Indemnitee for which indemnity will or could be subject under
this
Agreement.
4. Right
of Indemnitee to Indemnification Upon Application; Procedure Upon
Application.
Any
indemnification under Section 3 shall be made or paid by the Company no later
than 30 calendar days after receipt by the Company of the written request of
the
Indemnitee therefor, unless a determination is made within such 30 calendar
day
period that the Director has not met the relevant standards or other conditions
for indemnification set forth in Section 3. Such determination shall be made
(a)
by a majority vote of a quorum consisting of members of the Board of Directors
who are not parties to the Proceedings; (b) if such a quorum cannot be obtained,
by a majority vote of a committee of the Board of Directors of the Company,
designated to act in the matter by a majority vote of all directors, consisting
solely of two or more directors who at the time of the vote are not parties
to
the Proceedings; (c) by Independent Legal Counsel selected by the Board of
Directors of the Company or a committee of the Board of Directors of the Company
by vote as set forth in Subsection (a)
and
(b)
of this
Section 4, or, if such a quorum cannot be obtained and such a committee cannot
be established, by a majority vote of all directors of the Company; or (d)
by
the stockholders in a vote that excludes the shares held by directors who are
parties to the Proceedings (in any such case, the “Reviewing
Party”).
In
connection with any determination by the Reviewing Party or otherwise as to
whether the Indemnitee is entitled to indemnification under any provision of
this Agreement, the burden of proof shall be on the Company to establish that
the Indemnitee is not so entitled. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that the Indemnitee
substantively would not be permitted to be indemnified in whole or in part
under
applicable law, the Indemnitee shall have the right to commence litigation
in
any court in the State of Florida having subject matter jurisdiction thereof
and
in which venue is proper seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any aspect thereof,
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.
5. Indemnification
of Expenses of Successful Party.
To the
extent the Indemnitee has been wholly successful on the merits or otherwise
in
defense of any Proceeding or in defense of any claim, issue or matter therein,
including the dismissal of an action without prejudice, the Indemnitee shall
be
indemnified against all Expenses incurred in connection therewith.
6. Advances
of Expenses.
The
Expenses incurred by the Indemnitee in connection with any Proceeding shall
be
paid by the Company in advance of a final disposition of such Proceeding at
the
written request of the Indemnitee, if (a) the indemnification is pursuant to
Section 3 and the Company receives a written affirmation by the Indemnitee
of
the Indemnitee’s good faith belief that he has met the necessary standard of
conduct and other conditions for indemnification, and (b) the Indemnitee
undertakes, in writing, to repay such amount if and to the extent that it is
ultimately determined that he is not entitled to indemnification for such
Expenses pursuant to Section 3. Following such a request, statement and
undertaking by the Indemnitee, the Company shall, subject to the provisions
of
Section 4, pay all invoices, statements or bills reflecting such Expenses
submitted by or on behalf of Indemnitee and shall reimburse Indemnitee for
all
Expenses paid by Indemnitee within 30 calendar days. Any dispute as to the
reasonableness of any Expense shall not delay an Expense advance by the Company,
3
and
the
Company agrees that any such dispute shall be resolved only upon the disposition
or conclusion of the Proceeding. The Company agrees to pay the fees of any
Independent Legal Counsel required by this Agreement and to indemnify such
counsel against all expenses (including attorneys’ fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
7. Court
Ordered Indemnification; Fees and Expenses.
The
right to indemnification or advances as provided by this Agreement shall be
enforceable by the Indemnitee in any court of competent jurisdiction. Should
any
party hereto be required to employ an attorney to enforce or defend the rights
of such party hereunder or in connection herewith, the prevailing party shall
be
entitled to recover from the losing party such prevailing party’s court costs
and reasonable attorneys’ fees and expenses actually incurred in connection
therewith.
8. No
Presumption.
For
purposes of this Agreement, the termination of any claim, action, suit or
proceeding, 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.
9. Indemnification
Hereunder Not Exclusive.
The
indemnification provided by this Agreement shall not be deemed exclusive of
and
shall be in addition to (but shall not be duplicative of) any other rights
to
which the Indemnitee may be entitled under the Company’s Certificate of
Incorporation or Bylaws, any agreement (including on any and all directors’
and/or officers’ insurance policies), any vote of stockholders or disinterested
directors, or otherwise. The indemnification under this Agreement shall continue
as to the Indemnitee, even though the Director may have ceased to be a director
and/or officer (provided that the Claim arises from actions and/or omissions
of
the Director after the Effective Time) and shall inure to the benefit of the
Indemnitee’s heirs, personal representatives, successors and
assigns.
10. Partial
Indemnification.
If the
Indemnitee is entitled under any provision of this to indemnification by the
Company for some or a portion of the Expenses or Claims actually and reasonably
incurred by the Indemnitee in the investigation, defense, appeal or settlement
of any Proceeding but not, however, for the total amount thereof, the Company
shall nevertheless indemnify the Indemnitee for the portion of such Expenses,
judgments, fines or penalties to which the Indemnitee is entitled.
11. Savings
Clause.
If this
Agreement or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, the Company shall nevertheless indemnify the
Indemnitee as to Expenses, judgments, fines and penalties with respect to any
Proceeding to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated.
12. Notice.
Any
notice, payment, demand or communication required or permitted to be delivered
or given by the provisions of this Agreement shall be deemed to have been
effectively delivered or given and received upon the date personally delivered
to (or faxed to) the
4
party
to
which it is directed, or five (5) business days after being deposited by
registered or certified mail, with postage and charges prepaid to the
Indemnitee, at the Indemnitee’s address set forth below his signature to this
Agreement and to the Company at Wireless Holdings, Inc., 00000 Xxxxx Xxxx
0,
Xxxxx 00, Xxxx Xxxxx, Xxxxxxx 00000, Attn: President, with a copy to Xxxxxxxxx
Xxxxxxx, P.A., 0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attn: Xxx X. Xxxxxx,
Esq.
13. Counterparts.
This
Agreement may be executed in any number of counterparts, and upon the execution
hereof by all parties hereto, in counterparts or otherwise, each executed
counterpart shall constitute an original and all of such counterparts together
shall constitute a single original.
14. Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Florida, without regard to its principles of conflict
of
laws that would cause the law of a different jurisdiction to apply. This
Agreement and the transactions contemplated hereby shall be subject to the
exclusive jurisdiction of the courts of the State of Florida sitting in Palm
Beach County, Florida. The parties to this Agreement agree that any breach
of
any term or condition of this Agreement or the transactions contemplated hereby
shall be deemed to be a breach occurring in the State of Florida by virtue
of a
failure to perform an act required to be performed in the State of Florida.
The
parties to this Agreement irrevocably and expressly agree to submit to the
jurisdiction of the courts of the State of Florida for the purpose of resolving
any disputes among the parties relating to this Agreement or the transactions
contemplated hereby. The parties irrevocably waive, to the fullest extent
permitted by law, any objection which they may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating
to
this Agreement and the transactions contemplated hereby, or any judgment entered
by any court in respect hereof brought in Palm Beach County, Florida, and
further irrevocably waive any claim that any suit, action or proceeding brought
in Palm Beach County, Florida has been brought in an inconvenient forum. With
respect to any action before the above courts, the parties hereto agree to
service of process by certified or registered United States mail, postage
prepaid, addressed to the party in question.
15. Captions.
The
captions in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect any of the terms or provisions hereof.
16. Gender
and Number.
When
the context requires, the gender of all words used herein shall include the
masculine, feminine and neuter, and the number of words shall include the
singular and plural.
17. Successors
and Assigns.
This
Agreement shall be binding upon the Company and its successors and
assigns.
18. Amendments.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the 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 that waiver
constitute a continuing waiver.
5
WIRELESS
HOLDINGS, INC.
By: /s/
Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
President
/s/
Xxxxxx Xxxx
Xxxxxx
Xxxx
Address: 000
Xxxxx
Xxxxx Xxxx.
Xxxxxxx
Xxxxx,
Xxxxxxx 00000
