GETFUGU, INC. BOARD OF DIRECTORS SERVICE AND INDEMNIFICATION AGREEMENT
BOARD
OF DIRECTORS
THIS
GETFUGU, INC., BOARD OF DIRECTORS SERVICE AND INDEMNIFICATION AGREEMENT
(“Agreement”) is executed and entered into as of the date set forth below by and
between GetFugu, Inc., a Nevada corporation, (the “Company”), and the
undersigned, an individual (“Director”). The Agreement is effective
as of the date the Director was elected to the board of directors of the Company
(the “Board”) with reference to the following facts:
A. The
Company has requested that Director serve on its Board as a
director.
B. In order
to induce Director to serve on the Board, the Company has agreed to
contractually obligate itself to indemnify Director to the fullest extent
permitted by applicable law so that Director will serve or continue to serve the
Company free from undue concern that he will not be so indemnified; and Director
has agreed to serve on the Board in consideration of the foregoing.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Director hereby covenant and agree as follows:
1. Service
By Director. Director agrees to serve as a member of the
Board, for the Term, subject to the right of Director to resign from the Board
at any time, and other terms and conditions of this Agreement set forth below.
Notwithstanding the foregoing, Director may at any time and for any reason
resign from such position, subject to the provisions of this Agreement and any
contractual or other obligation imposed by operation of law.
1.1 Duties. As
an independent member of the Board, Director shall use his reasonable best
efforts to perform the duties commonly incident to the office and as set forth
in the Company Bylaws, including, without limitation:
1.1.1 attending
(in person or telephonically) in all regular and
special
meetings of the Board;
1.1.2 reviewing
the performance of the officers of the Company;
1.1.3 making
himself reasonably available for consultation with the officers of the Company
immediately before and after Board meetings, as needed; and
1.1.4 doing all
other things reasonably requested by the Board in order to advance the business
and economic interests of the Company and its shareholders.
1.2 Fiduciary
Duty. Director acknowledges and agrees that in his capacity as a
member of the Board, he has a fiduciary duty to the Company and its
shareholders. Director further covenants and agrees to use his reasonable best
efforts to comply with and abide by all written policies, procedures, guidelines
and governing principles as may be adopted by the Board from time to time; to
serve the Company faithfully and to the best of his ability; and to devote that
amount of time, attention and effort to the Company which is reasonably
necessary in order to satisfy the requirements of the Board.
2. Term. This
Agreement shall be effective as of the date first set forth below (the
“Effective Date”) and shall continue for so long as Director shall serve on the
Board as a director (the “Termination Date”). This Agreement will terminate
automatically without the necessity of further notice or action of any kind upon
the Termination Date, or earlier upon Director’s resignation or removal from the
Board in accordance with the Company’s Bylaws and applicable law. Following the
Termination Date, the Company shall continue to indemnify Director in accordance
with the indemnification rights provided in Section 4, for actions pertaining to
the period prior to the Termination Date and the obligation of the Company under
Section 4 shall remain in full force and effect.
3. Protection
of Company Property.
3.1 Restriction
on Use. Director recognizes and acknowledges that he will have
access to Confidential Information (as defined below) relating to the business
or interest of the Company or of persons with whom the Company may have business
relationships. Except as permitted herein or as may be approved by the Company
from time to time, the Director will not during the Term of this Agreement or at
any time thereafter, use, disclose or permit to be known by any other person or
entity, any Confidential Information of the Company (except as required by
applicable law or regulations or in connection with the performance of the
Director’s duties and responsibilities hereunder). If Director is requested or
becomes legally compelled to disclose any of the Confidential Information, he
will give (to the extent permitted by law) prompt notice of such request or
legal compulsion to the Company. The Company may waive compliance with this
Section 3 or will then provide Director with legal counsel, reasonably
acceptable to the Director, at no cost or expense to Director (all such costs
and expenses to be paid by the Company) to seek an appropriate
remedy.
3.2 Confidential
Information Defined. The term “Confidential Information” means
information relating to the Company’s business affairs, proprietary technology,
trade secrets, patented processes, research and development data, know-how,
market studies and forecasts, competitive analyses, pricing policies, vendor and
supplier lists, employee lists, employment agreements (other than this
Agreement), personnel policies, the substance of agreements with customers,
suppliers and others, marketing arrangements, customer lists, commercial
arrangements, or any other information relating to the Company’s business that
is not generally known to the public or to actual or potential competitors of
the Company. Confidential Information shall not include information that becomes
publicly known, other than pursuant to a breach of this Section 3 by
Director.
4. Indemnification. The
Company shall indemnify Director and hold the Director harmless to the fullest
extent permitted by applicable law in effect on the Effective Date or as such
laws may from time to time be amended. Without diminishing the scope of the
indemnification provided by this Section 4, the rights of indemnification of the
Director provided hereunder shall include, but shall not be limited to, those
rights set forth hereinafter, except to the extent expressly prohibited by
applicable law.
4.1 Action
Other Than by or in the Right of the Company. The Director
shall be entitled to the indemnification rights provided in this Section 4.1 if
he is a party or is threatened to be made a party to any threatened, pending or
completed action, suit, investigation, or proceeding, whether civil, criminal,
administrative or investigative in nature, other than an action by or in the
right of the Company, by reason of the fact that he is or was a director of the
Company or is or was serving at the request of the Company as a director,
officer, employee, agent, partner or fiduciary of any other entity or by reason
of anything done or not done by him in any such capacity. Pursuant to this
Section 4.1, the Director shall be indemnified against and held harmless from
all costs and expenses, including, without limitation, attorneys’ fees and
disbursements, costs, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding (including, but not limited to, the investigation, defense or appeal
thereof), if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. The Director agrees promptly to notify the Company in writing upon
being personally served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any matter which may be
subject to indemnification covered hereunder, either civil, criminal or
investigative.
4.2 Actions
by or in the Right of the Company. The Director shall be
entitled to the indemnification rights provided in this Section 4.2 if he is a
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director of the Company or is or was serving at the request
of the Company as a director, officer, employee, agent, partner or fiduciary of
any other entity by reason of anything done or not done by him in any such
capacity. Pursuant to this Section 4.2, the Director shall be indemnified
against and held harmless from all costs and expenses, including, without
limitation, attorneys’ fees and disbursements and costs actually and reasonably
incurred by him in connection with such action or suit (including, but not
limited to, the investigation, defense, settlement or appeal thereof) if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; provided, however, that no such
indemnification shall be made in respect of any claim, issue or matter as to
which applicable law expressly prohibits such indemnification by reason of an
adjudication of liability of the Director to the Company, unless, and only to
the extent that the court in which such action or suit was brought or an
independent committee duly appointed by the Board shall determine upon
application that, despite such adjudication of liability but in view of all the
circumstances of the case, the Director is fairly and reasonably entitled to
indemnification for such expenses and costs as such court shall deem
proper.
4.3 Indemnification
for Costs, Charges and Expenses. Notwithstanding the other
provisions of this Agreement and in addition to the rights to indemnification
set forth in Sections 4.1 and 4.2 hereof, to the extent that the Director has
served as a witness on behalf of the Company or with respect to any matter
relating to or arising from his services as a director or has been successful on
the merits or otherwise, including, without limitation, the dismissal of an
action, suit or proceeding without prejudice, in defense of any action, suit or
proceeding referred to in Sections 4.1 and 4.2 hereof, or in defense of any
claim, issue or matter therein, he shall be indemnified against all costs,
charges and expenses, including attorneys’ fees and disbursements, actually and
reasonably incurred by him or on his behalf in connection
therewith.
4.4 Partial
Indemnification. In addition to the rights to indemnification
set forth in Sections 4.1 and 4.2 hereof, if the Director is only partially
successful in the defense, investigation, settlement or appeal of any action,
suit, investigation or proceeding described in Section 4.2 or 4.3 hereof, and as
a result is not entitled under Section 4.1, 4.2 or 4.3 hereof to indemnification
by the Company for the total amount of the expenses, including, without
limitation, attorneys’ fees and disbursements, costs, judgments, penalties,
fines, and amounts paid in settlement actually and reasonably incurred by him,
the Company shall nevertheless indemnify the Director, as a matter of right
pursuant to Section 4.3 hereof, to the extent that the Director has been
partially successful.
4.5 Request
for Indemnification; Presumptions. In order to be eligible for
indemnification pursuant to this Agreement, Director shall promptly provide
written notice regarding the existence of any action, suit, proceeding or claim
(each a “Claim”), after the Director obtains actual knowledge thereof, for which
indemnification is being sought pursuant to this Agreement, together with a
written request for indemnification to the Board. Such notice shall also include
all documentation or information regarding the Claim which is reasonably in
possession and control of the Director. Upon delivery of such written notice and
request, the Director shall be presumed to be entitled to indemnification
pursuant to this Agreement and shall be indemnified hereunder.
4.6 Advancement
of Expenses and Costs. All reasonable expenses and costs
incurred by the Director (including, without limitation, attorneys’ fees and
disbursements, retainers and advances of disbursements required of the Director)
in connection with the defense of any Claim shall be paid by the Company in
advance of the final disposition of such Claim, at the request of the Director
within ten (10) days after the receipt by the Company of a statement or
statements from the Director from time to time requesting such advances. Such
statement or statements shall reasonably evidence the expenses and costs
incurred by Director in connection therewith and shall include or be accompanied
by an undertaking by or on behalf of the Director to repay such amount if it is
ultimately determined that the Director is not entitled to be indemnified
against such expenses and costs by the Company as provided by this Agreement or
otherwise.
4.7 Remedies
of Director. In the event that a determination is made that
the Director is not entitled to indemnification hereunder or if expenses are not
advanced pursuant to this Agreement, the Director shall be entitled to a final
adjudication in an appropriate court of the State of Nevada or any other court
of competent jurisdiction of his entitlement to such indemnification or advance.
Alternatively, the Director at his option may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association, such award to be made within 60 days
following the filing of the demand for arbitration. In either case, Director
shall be presumed to be entitled to indemnification and the Company shall have
the burden of proof in the making of any determination contrary to such
presumption. In addition, the Company shall not oppose the Director’s right to
seek any such adjudication or award in arbitration or any other claim, but may
only oppose the Director’s right to indemnification. Such judicial proceeding or
arbitration shall be made de novo and the Director shall not be prejudiced by
reason of a determination (if so made) that he is not entitled to
indemnification. Notwithstanding any other term or provision of this Agreement,
upon the filing of any such action or complaint by Director, pending final
adjudication of the issue, the Company shall pay and advance all reasonable
expenses and costs incurred by Director in accordance with Section 4.6 of this
Agreement, as well as all other amounts payable on Director’s behalf pursuant to
Sections 4.1 and 4.2 of this Agreement. If the court or arbitrator shall
determine that the Director is entitled to any indemnification hereunder, the
Company shall pay all reasonable costs and expenses, including, without
limitation, attorneys’ fees and disbursements actually incurred by the Director
in connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).
4.8 Other
Rights to Indemnification. The indemnification and advancement of
expenses, including attorneys’ fees and disbursements, and costs provided by
this Agreement shall not be deemed exclusive of any other rights to which the
Director may now or in the future be entitled under any provision of the
by-laws, agreement, provision of the Articles of Incorporation, vote of
stockholders or disinterested directors, provision of law or otherwise and shall
be in addition to such other rights.
4.9 Insurance. The
Company shall at all times during the Term of this Agreement maintain a standard
ocurrence based policy of D&O insurance covering the actions of the Board,
including those of Director, on behalf of the Company, in an amount to be
determined by the Board.
5. General
Provisions.
5.1 Modification
and Waiver. No supplement, modification, waiver 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 such waiver constitute a continuing waiver.
5.2 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and
the same agreement.
5.3 Severability. If
any provision of this Agreement (or any portion thereof) is held by an
arbitrator or 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 and such modified
provision shall be reduced to a writing and signed by the parties hereto; (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.
5.4 Notices. Any
notice or other communication in connection with this Agreement may be made and
is deemed to be given as follows: (i) if in writing and delivered in person or
by courier, on the date when it is delivered; (ii) if by facsimile, when
received at the correct number (proof of which shall be an original facsimile
transmission confirmation slip or equivalent); or (iii) if sent by certified or
registered mail or the equivalent (return receipt requested), on the date such
mail is delivered, unless the date of that delivery is not a Business Day or
that communication is delivered on a Business Day but after the close of
business on such Business Day in which case such communication shall be deemed
given and effective on the first following Business Day. Any such notice or
communication given pursuant to this Section 5.4 shall be addressed if to
Company, at its main office, attention President, and if to Director, at his
address as maintained on file with Company.
5.5 Governing
Law; Venue. This Agreement shall be governed by and construed
in accordance with the laws of the state of incorporation, without regard to
conflicts of law principles thereof. Venue for any suit or action to enforce or
interpret this Agreement shall lie exclusively in the State and Federal courts
of Los Angeles County, California.
5.6 Attorney
Fees. If any suit or action is instituted to enforce or
interpret this Agreement, the prevailing party shall be entitled, in addition to
the cost of disbursements otherwise allowed by law, such sum as the court or
arbitrator may adjudge as reasonable attorneys’ fees and expenses in such suit
or action.
5.7 Entire
Agreement. This Agreement and the exhibit hereto constitute the agreement
of the parties as it relates to this subject matter and does hereby supersede
all other agreements of the parties relating to the subject matter
hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Board of Directors
Service and Indemnification Agreement as of the Effective Date.
Dated:
_________________________, 20___
