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EXHIBIT 10.8
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, effective as of ____________, 20__,
between NOVIENT, INC., a Georgia corporation ("Novient") and
________________________ ("Indemnitee").
WITNESSETH:
WHEREAS, Indemnitee is a member of the Board of Directors of Novient
and in such capacity performs a valuable service for Novient;
WHEREAS, Novient's Bylaws authorize Novient to indemnify its directors
in accordance with Section 14-2-851 of the Official Code of Georgia Annotated
(the "Statute");
WHEREAS, the Statute contemplates that contracts may be entered into
between Novient and each of the members of its Board of Directors with respect
to indemnification; and
WHEREAS, in order to encourage Indemnitee to continue to serve as a
member of the Board of Directors and to perform other designated services for
Novient at its request, Novient has determined and agreed to enter into this
Agreement with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued service as a
director of Novient and the performance of such other services as requested by
Novient, the parties hereby agree as follows:
1. INDEMNITY OF INDEMNITEE. Novient shall defend, hold harmless
and indemnify Indemnitee to the full extent permitted by the provisions of the
Statute, as currently in effect or as it may hereafter be amended, or by the
provisions of any other statute authorizing or permitting such indemnification,
whether currently in effect or hereafter adopted.
2. ADDITIONAL INDEMNITY. Subject to the provisions of Section 3
hereof, Novient shall defend, hold harmless and indemnify Indemnitee in the
event Indemnitee was, is or is threatened to be made a named defendant or
respondent in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether formal or
informal (including any such action, suit or proceeding brought by or in the
right of Novient), by reason of the fact that he is or was a director of
Novient, or is or was serving at the request of Novient as a director, officer,
employee, agent or consultant of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against any
obligation to pay a judgment, settlement, penalty, fine (including an excise tax
assessed with respect to an employment benefit plan), expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding. For purposes of this
Section 2, Indemnitee shall be considered to be serving under an employee
benefit plan at the request of Novient if his duties to Novient also impose
duties on, or otherwise involve services by, him to the plan or to participants
in or beneficiaries of the plan.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
Section 2 hereof shall be paid by Novient to the extent of any liabilities
incurred in a proceeding in which Indemnitee is adjudged liable to Novient or is
subjected to injunctive relief in favor of Novient:
(1) for any appropriation in violation of his duties, of
any business opportunity of Novient;
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(2) for acts or omissions which involve intentional
misconduct or a knowing violation of law;
(3) for the types of liability set forth in O.C.G.A.
ss.14-2-832; or
(4) for any transaction from which Indemnitee received
any improper personal benefit.
4. NOTIFICATION AND DEFENSE OF CLAIM.
(a) Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee will, if a claim in
respect thereto is to be made against Novient under this Agreement, notify
Novient of the commencement thereof, but the failure to so notify Novient will
not relieve it from any liability which it may have to Indemnitee otherwise
under this Agreement. With respect to any such action, suit or proceeding as to
which Indemnitee so notifies Novient:
(i) Novient will be entitled to participate
therein at its own expense; and
(ii) except as otherwise provided below, to the
extent that it may desire, Novient may
assume the defense thereof.
(b) After notice from Novient to Indemnitee of its
election to assume the defense thereof, Novient will not be liable to Indemnitee
under this Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the right to
employ counsel of his choosing in such action, suit or proceeding but the fees
and expenses of such counsel incurred after notice from Novient of its
assumption of the defense thereof shall be at the expense of Indemnitee unless
(i) the employment of counsel by Indemnitee has been authorized in writing by
Novient, (ii) Novient and Indemnitee shall reasonably conclude that there may be
a conflict of interest between Novient and Indemnitee in the conduct of the
defense of such action, or (iii) Novient shall not in fact have employed counsel
to assume the defense of such action, in each of which case the reasonable fees
and expenses of Indemnitee's counsel shall be paid by Novient.
(c) Novient shall not be liable to Indemnitee under this
Agreement for any amounts paid in settlement of any threatened or pending
action, suit or proceeding without its prior written consent. Novient shall not
settle any such action, suit or proceeding in any manner which would impose any
penalty or limitation on Indemnitee without Indemnitee's prior written consent.
Neither Novient nor Indemnitee will unreasonably withhold its or his consent to
any proposed settlement.
5. PREPAYMENT OF EXPENSES. Unless Indemnitee otherwise elects,
expenses incurred in defending any civil or criminal action, suit or proceeding
shall be paid by Novient in advance of the final disposition of such action,
suit or proceeding upon receipt by Novient of a written affirmation of
Indemnitee's good faith belief that his conduct does not constitute behavior of
the kind described in Section 3 of this Agreement and Indemnitee furnishes
Novient a written undertaking, executed personally or on his behalf, to repay
any advances if it is ultimately determined that he is not entitled to be
indemnified by Novient under this Agreement.
6. CONTINUATION OF INDEMNITY. All agreements and obligations of
Novient contained in this Agreement shall continue during the period in which
Indemnitee is a member of the
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Board of Directors of Novient and shall continue thereafter so long as
Indemnitee shall be subject to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, and
whether formal or informal, by reason of the fact that Indemnitee was a director
of Novient or is or was serving at the request of Novient as a director,
officer, employee, agent or consultant of another corporation, partnership,
joint venture, trust or other enterprise.
7. RELIANCE. Novient has entered into this Agreement in order to
induce Indemnitee to continue as a member of the Board of Directors of Novient
and acknowledges that Indemnitee is relying upon this Agreement in continuing in
such capacity.
8. SEVERABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
9. GENERAL.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
(b) Neither this Agreement nor any rights or obligations
hereunder shall be assigned or transferred by Indemnitee.
(c) This Agreement shall be binding upon Indemnitee and
upon Novient, its successors and assigns, including successors by merger or
consolidation, and shall inure to the benefit of Indemnitee, his heirs, personal
representatives and permitted assigns and to the benefit of Novient, its
successors and assigns.
(d) No amendment, modification or termination of this
Agreement shall be effective unless in writing signed by both parties hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
INDEMNITEE: NOVIENT, INC.
By: By:
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Name: Xxxx X. Xxxxxx, Chief Executive Officer
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Date: Date:
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