EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement"), made as of December 19,
2003, among Promos, Inc., a Colorado corporation (the "Company"), and each of
Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxx. Xx. Xxxxxxx and Xx. Xxxx are each
referred to as an "Indemnitee" and, together, as the "Indemnitees") (Xx. Xxxxxxx
and Xx.
Xxxx are sometimes, together, referred to herein as the "Directors").
RECITALS:
WHEREAS, Xx. Xxxxxxx is willing to continue to serve as a director of the
Company on the condition that in her capacity as a director of the Company after
the Effective Time, she be indemnified to the fullest extent permitted by law;
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 Directors
are each agreeing to continue to serve as a director of the Company after the
Effective Time until his/her 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 Indemnitees hereby agree as follows:
1. AGREEMENT TO SERVE. Each of the Directors agrees to continue to serve as
a director of the Company after the Effective Time hereof until his/her
resignation as a director of the Company is effective upon compliance by the
Company to 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
Purchase and Sale, dated as of the date hereof, among the Company and OmniCorder
Technologies, 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
Indemnitees' 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 Indemnitees 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/she 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 Indemnitees to the fullest
extent permitted by law if any 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 any 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 Indemnitees in connection with the defense or settlement of such
Proceeding, but only if it is determined pursuant to Section 4 that the
applicable Director acted in good faith and (a) in the case of conduct in
his/her Official Capacity, in a manner he/she reasonably believed to be in the
best interests of the Company; (b) in all other cases, in a manner he/she
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/her conduct was unlawful. No indemnification will be made to any
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
applicable Director shall have been found liable for willful or intentional
misconduct in the performance of his/her duty to the Company or for any grossly
negligent act or
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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/she 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/her conduct was unlawful.
The Indemnitees 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 Agreement, give to
the Company notice in writing as soon as practicable of any Claims made against
such 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 any Indemnitee therefor, unless a determination is made
within such 30 calendar day period that the applicable 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 Indemnitees are entitled to indemnification
under any provision of this Agreement, the burden of proof shall be on the
Company to establish that the Indemnitees are not so entitled. If there has been
no determination by the Reviewing Party or if the Reviewing Party determines
that Indemnitees substantively would not be permitted to be indemnified in whole
or in part under applicable law, the Indemnitees shall have the right to
commence litigation in any court in the State of Nevada 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 an
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, such Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
6. ADVANCES OF EXPENSES. The Expenses incurred by an 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
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good faith belief that he/she has met the necessary standard of conduct and
other conditions for indemnification, and (b) such Indemnitee undertakes, in
writing, to repay such amount if and to the extent that it is ultimately
determined that he/she is not entitled to indemnification for such Expenses
pursuant to Section 3. Following such a request, statement and undertaking by
such 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
such Indemnitee within 30 calendar days. Any dispute as to the reasonableness of
any Expense shall not delay an Expense advance by the Company, 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 Indemnitees 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 Indemnitees 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 Indemnitees,
even though the applicable 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
Indemnitees' heirs, personal representatives, successors and assigns, as
applicable.
10. PARTIAL INDEMNIFICATION. If the Indemnitees are 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 an Indemnitee in the
investigation, defense, appeal or settlement of any Proceeding but not, however,
for the total amount thereof, the Company shall nevertheless indemnify such
Indemnitee for the portion of such Expenses, judgments, fines or penalties to
which such Indemnitee is entitled.
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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 Indemnitees 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 respective 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 Indemnitors, at the
respective addresses set forth above their respective signatures to this
Agreement and to the Company at Promos, Inc., 0000 X. Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, Attn: President, with a copy to Xxxxx Xxxxxx and
Associates, P.C., 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxx,
Xxxxxxxx 00000, Attn: Xxxxx X. Xxxxxx, Esq.
13. COUNTERPARTS. This Agreement maybe 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. This Agreement and the rights and obligations of the
parties hereto shall be governed by and construed and enforced in accordance
with the substantive laws (but not the rules governing conflicts of laws) of the
State of Colorado.
15. JURISDICTION. The Company and the Indemnitees each hereby irrevocably
consent to the jurisdiction of any court of competent jurisdiction and
appropriate venue in the State of Colorado for all purposes in connection with
any action or proceeding that arises out of or relates to this Agreement.
16. 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.
17. 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.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
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19. 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.
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PROMOS, INC.
By:
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Name:
Title:
XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Address: 0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
Address: 0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 000000
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