AGREEMENT FOR A MEMBER OF THE BOARD OF BUSINESS ADVISORS
Exhibit
10.9
AGREEMENT
FOR A MEMBER OF THE BOARD
OF BUSINESS ADVISORS
THIS
AGREEMENT FOR A MEMBER OF THE
BOARD OF BUSINESS ADVISORS (“Agreement”) is made and entered into as of this
____ day of July, 2007, (the “Effective Date”), by and between Sun
Energy Solar, Inc., a Delaware corporation, (“Company”) and Xxxxxxx X. Xxxxxx,
an individual (“Advisor”).
Recital
As
part
of its ongoing business, the Company desires to retain highly qualified
individuals to advise the Company with respect to certain aspects of the
Company’s business. In furtherance thereof, the Company desires to
retain Advisor as a consultant and member of the Company’s Advisory Board, and
the Company and Advisor desire to enter into this Agreement.
1. Term.
(a) This
Agreement shall commence upon the Effective Date and shall continue thereafter
for a period of three (3) years, unless earlier terminated in accordance with
this Agreement.
(b) Notwithstanding
the foregoing and provided that Advisor has neither resigned nor been terminated
in accordance with this Agreement, Company agrees to use its best efforts to
retain the Advisor at least for a period of one (1) year following expiration
of
the Agreement.
2. Position
and Responsibilities.
(a) Commencing
on the Effective Date, the Company hereby retains Advisor, and Advisor hereby
agrees to serve, as a member of the Company’s Advisory Board (the “Advisory
Board”) and as a consultant to the Company. As consultant and member
of the Advisory Board, Advisor agrees to devote his best efforts to provide
the
following services: (a) attending any meetings of the Advisory Board;
(b) performing the duties of an Advisory Board member at such meetings as
established from time to time by mutual agreement of the Parties, including,
without limitation, meeting with Company employees, consultants and others,
reviewing the Company’s goals and assisting in the planning for and execution of
the Company’s goals and providing advice, support, techniques and improvements
in the Company’s business activities; and (c) providing consulting services to
the Company at the Company’s request, including a reasonable amount of informal
consultation over the telephone or in person one day per month or otherwise
as
requested by the Company. The services to be provided by Advisor
hereunder are referred to collectively herein as the “Services.”
(b) Advisor
represents that Advisor’s performance of all of the terms of this Agreement and
the performance of the Services for the Company do not and will not breach
or
conflict with any agreement with a third party, including an agreement to keep
in confidence any proprietary information of another entity acquired by Advisor
in confidence or in trust prior to the date of this Agreement or during the
term
hereof.
1
3. Compensation
and Benefits.
(a) Advisor’s
Fee (the “Advisor’s Fee”). In consideration of the services to be
rendered under this Agreement, Company shall provide to Advisor upon the
Effective Date a non-employee Advisor’s Fee of (1) one million
(1,000,000) shares of Sun Energy Solar, Inc. restricted common stock that shall
vest immediately upon issuance, and (2) a nonstatutory option to acquire two
million (2,000,000) shares of Sun Energy Solar, Inc. common stock, vesting
one-half (1/2) on the first anniversary of the Effective Date and one-half
(1/2)
on the second anniversary of the Effective Date, in each case provided that
Advisor remains an advisor to the Company on the applicable vesting
date. Each such option shall have an exercise price equal to the fair
market value of the common stock on the date of the grant.
(b) Benefits. Advisor
shall not be eligible to participate in any benefits made generally available
by
Company, including, but not limited to, vacation leave and pay, sick leave
and
pay, retirement plan and related benefits, social security, workers compensation
insurance, disability insurance, employment insurance benefits, and other
benefits of any kind provided by the Company to its employees.
(c) Expenses. The
Company shall reimburse Advisor for his reasonable, out-of-pocket, pre-approved
expenses as incurred by Advisor in connection with its performance under this
Agreement. Advisor shall not incur any expenses without prior consent
of the Company. Advisor agrees to provide the Company with access to
such receipts, ledgers and other records as may be reasonably appropriate for
the Company to verify the amount and nature of such expenses.
(d) Taxes. Advisor
shall be responsible to pay any and all applicable taxes that result from this
Consulting Agreement including, but not limited to, federal and state income
taxes. Advisor shall have sole responsibilities for the withholding of any
and
all applicable federal and state income taxes, unemployment insurance tax,
social security tax, and other withholding with respect to payments made by
Advisor under this Agreement.
(e) Indemnification. Company
will indemnify and defend Advisor against liability incurred in the performance
of the Services, as set forth in the attachment in Exhibit A.
4. Independent
Contractor.
The
Parties understand and agree that
Advisor is an independent contractor and not an employee of the
Company. Advisor has no authority to obligate or bind the Company by
contract or otherwise. Advisor will not be eligible for any employee
benefits, nor will Company make deductions from Advisor’s fees for taxes (except
as otherwise required by applicable law or regulation). Any taxes
imposed on Advisor due to activities performed hereunder will be the sole
responsibility of Advisor.
5. Termination.
(a) Right
to Terminate. At any time, Advisor may be terminated and this
Agreement shall automatically terminate upon the effective date of such
termination.
2
Advisor
may resign at any time during
the term of this Agreement, and this Agreement shall automatically terminate
upon the effective date of such resignation. Notwithstanding anything
to the contrary contained in or arising from this Agreement or any statements,
policies, or practices of Company, neither Advisor nor Company shall be required
to provide any advance notice or any reason or cause for termination of
Advisor’s status.
(b) Effect
of Termination as Advisor. Upon termination of this Agreement,
Company shall pay to Advisor all compensation and benefits to which Advisor
is
entitled up through the date of termination. Thereafter, all of
Company’s obligations under this Agreement shall cease, except as provided in
Sections 3(a), 3(c), 3(e) and 6.
6. Termination
Obligations.
(a) Advisor
agrees that all property, including, without limitation, all equipment, tangible
proprietary information, documents, records, contracts, and computer-generated
materials provided to or prepared by Advisor incident to his services belong
to
Company and shall be promptly returned at the request of Company within a
reasonable period following termination of this Agreement.
(b) Upon
termination of this Agreement, Advisor shall be deemed to have resigned from
all
offices then held with Company by virtue of his position. Advisor
agrees that following any termination of this Agreement, he shall cooperate
with
Company in the winding up or transferring to other advisors of any pending
work
and shall also cooperate with Company (to the extent allowed by law, and at
Company’s expense) in the defense of any action brought by any third party
against Company that relates to the Services.
(c) The
Company and Advisor agree that their obligations under this Section, as well
as
Sections 3(b), 3(c), 3(d), 3(e), 5(b), 7 and 8, shall survive the termination
of
this Agreement.
7. Nondisclosure
Obligations.
(a) Receipt
of Proprietary Information. Advisor recognizes and acknowledges that,
in the course of the engagement of Advisor by the Company, and as a result
of
the confidential relationship with the Company established thereby, Advisor
shall be receiving proprietary information of the Company and other confidential
information, including without limitation, technology and information relating
to the Company’s business or its patents, inventions, software, know-how and
other property rights (“Proprietary Information”), and developing additional
know-how and proprietary information owned by the Company which will become
Proprietary Information, and that such Proprietary Information are highly
valuable assets of the Company; provided, that technology and information shall
not be considered Proprietary Information of the Company which are (1) known
to
Advisor prior to execution of this Agreement or the Non-Disclosure Agreement,
defined herein, (2) divulged by the Company to another without confidentiality
restrictions; (3) disclosed to Advisor by a third party or otherwise who is
not
in breach of any confidentiality obligation to the Company; (4) publicly used,
known or available, not due to any unauthorized act by Advisor; or (5) disclosed
by operation of law or in response to a subpoena or order by a court of proper
jurisdiction.
(b) Nondisclosure. Advisor
shall retain in strict confidence and shall not use for any purpose whatsoever
or divulge, disseminate or disclose to any third party (other than in the
furtherance of the business purposes of the Company and at the express, written
request of the Company) any Proprietary Information, all of which are deemed
confidential and proprietary.
3
(c) Ownership. Any
methods, developments, know-how, inventions and/or improvements whether or
not
patentable or subject to intellectual property protection including, but not
limited to, the Proprietary Information, and all related materials that are
(1) developed by Advisor in connection with the performance of the Services
after the Effective Date; or (2) paid for or provided by the Company in
connection with the performance of the Services before or after the Effective
Date, (collectively “Developed Property”) shall be and remain the property of
the Company.
(d) Works
Made for Hire. In no way limiting the foregoing, all Developed
Property conceived or made by Advisor in connection with the Services are
“supplementary works” and “works made for hire” (as those terms are defined in
the United States Patent Trademark and Copyright Laws, 17 U.S.C. § 101) and
owned by the Company; and Advisor hereby assigns to the Company all Developed
Property which Advisor may conceive of or make in connection with the
performance of the Services.
(e) Disclosure;
Assignment. Advisor shall immediately disclose to Company all
Developed Property. Advisor shall promptly shall execute and deliver
to the Company any instruments deemed necessary by the Company to effect
disclosure and assignment by Advisor to the Company of any Developed
Property. Upon the request of the Company and at the Company’s
expense, Advisor shall execute patent and copyright applications and any other
instruments deemed necessary by the Company for the prosecution of such patent
applications or the acquisition of letters patent or registration of copyrights
in the United States and/or foreign countries which may be based in whole or
in
part on Developed Property. Notwithstanding the fact that Company may
request additional written assignments or applications, this assignment shall
be
deemed sufficient to convey all of Advisor’s right, title and interest in any
Developed Property.
(f) Prior
Non-Disclosure Agreement. The parties acknowledge entering into a
separate non-disclosure agreement relating to the Company’s confidential
information, attached as Exhibit B (“Non-Disclosure
Agreement”). The terms of the Non-Disclosure Agreement are
incorporated herein by this reference. In the event of a conflict
between the Non-Disclosure Agreement and this Agreement, the terms providing
greater protection to the Company and its confidential information and
Proprietary Information shall be determinative.
(g) Injunctive
Relief. If Advisor violates this Section 7 of this Agreement, the
Company (in addition to any other and additional rights or remedies it may
have
at law, in equity or by statute) shall be entitled to immediate and permanent
injunctive relief, it being agreed that the damages which the Company would
sustain upon such violation are difficult or impossible to ascertain in
advance. The posting of a bond shall not be required as a
pre-condition to such injunctive relief.
4
8. Dispute
Resolution.
(a) Jurisdiction
and Venue. The parties agree that any suit, action, or proceeding
between Advisor (and his successors, and assigns) and Company (and its
affiliates, shareholders, advisors, officers, employees, members, agents,
successors, attorneys, and assigns) relating to the Agreement shall be brought
in either the United States District Court for the District of Florida or in
an
appropriate Florida state court and that the parties shall submit to the
jurisdiction of such court. The parties irrevocably waive, to the
fullest extent permitted by law, any objection the party may have to the laying
of venue for any such suit, action or proceeding brought in such
court. If any one or more provisions of this Section shall for any
reason be held invalid or unenforceable, it is the specific intent of the
parties that such provisions shall be modified to the minimum extent necessary
to make it or its application valid and enforceable.
(b) Attorneys’
Fees. In the event there is any dispute concerning this Agreement or
the performance of any party hereto pursuant to the terms of this Agreement,
and
any party hereto retains counsel for the purpose of enforcing any of the
provisions of this Agreement or asserting the terms of this Agreement in defense
of any suit filed against said party, each party shall be solely responsible
for
its own costs and attorney’s fees incurred in connection with the dispute
irrespective of whether or not a lawsuit is actually commenced or prosecuted
to
conclusion.
9. Entire
Agreement.
This
Agreement, including Exhibit A on Indemnification
and Exculpation and the Non-Disclosure Agreement, are intended to be the final,
complete, and exclusive statement of the terms of Advisor’s relationship solely
with respect to his position with Company. This Agreement and the
Non-Disclosure Agreement entirely supersede and may not be contradicted by
evidence of any prior or contemporaneous statements or agreements pertaining
to
Advisor’s relationship. Agreements related to Advisor’s ownership of the
securities are not affected by this Agreement.
10. Amendments;
Waivers.
This
Agreement may not be amended
except by a writing signed by Advisor and by a duly authorized representative
of
the Company other than Advisor. Failure to exercise any right under
this Agreement shall not constitute a waiver of such right.
11. Assignment.
Advisor
agrees that Advisor will not
assign any rights or obligations under this Agreement, with the exception of
Advisor’s ability to assign rights with respect to the
securities. Nothing in this Agreement shall prevent the
consolidation, merger or sale of Company or a sale of all or substantially
all
of its assets.
12. Severability.
If
any provision of this Agreement
shall be held by a court or arbitrator to be invalid, unenforceable, or void,
such provision shall be enforced to fullest extent permitted by law, and the
remainder of this Agreement shall remain in full force and effect. In
the event that the time period or scope of any provision is declared by a court
or arbitrator of competent jurisdiction to exceed the maximum time period or
scope that such court or arbitrator deems enforceable, then such court or
arbitrator shall reduce the time period or scope to the maximum time period
or
scope permitted by law.
5
13. Governing
Law.
This
Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, other than such
laws, rules, regulations and case law that would result in the application
of
the laws of a jurisdiction other than the State of Florida
14. Interpretation.
This
Agreement shall be construed as a
whole, according to its fair meaning, and not in favor of or against any
party. Captions are used for reference purposes only and should be
ignored in the interpretation of the Agreement.
15. Binding
Agreement.
Each
party represents and warrants to
the other that the person(s) signing this Agreement below has authority to
bind
the party to this Agreement and that this Agreement will legally bind both
Company and Advisor. This Agreement will be binding upon and benefit
the parties and their heirs, administrators, executors, successors and permitted
assigns. To the extent that the practices, policies, or procedures of
Company, now or in the future, are inconsistent with the terms of this
Agreement, the provisions of this Agreement shall control. Any
subsequent change in Advisor’s duties or compensation will not affect the
validity or scope of the remainder of this Agreement.
16. Advisor
Acknowledgment.
Advisor
expressly acknowledges that
Advisor has had the opportunity to consult legal counsel concerning this
Agreement, that Advisor has read and understands the Agreement, that Advisor
is
fully aware of its legal effect, and that Advisor has entered into it freely
based upon his own judgment and not on any representations or promises other
than those contained in this Agreement.
17. Counterparts.
This
Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all
of
which together shall constitute one and the same instrument.
6
18. Effective
Date of Agreement.
This
Agreement is effective as of the
date first written above.
Sun Energy Solar, Inc., | Advisor: | |||
By:
|
By:
|
|||
Printed:
|
Printed:
|
|||
Title
|
Title
|
7
EXHIBIT
A
Indemnification
and
Exculpation
1. Definitions.
(a) Expenses. For
purposes of this Agreement, the term “expenses” shall be broadly construed and
shall include, without limitation, all direct and indirect costs of any type
or
nature whatsoever (including, without limitation, all attorneys’, witness, or
other professional fees and related disbursements, and other out-of-pocket
costs
of whatever nature), actually and reasonably incurred by Advisor in connection
with the investigation, defense or appeal of a proceeding or establishing or
enforcing a right to indemnification under this Agreement, applicable law or
otherwise, and amounts paid in settlement by or on behalf of Advisor, but shall
not include any judgments, fines or penalties actually levied against Advisor
for such individual’s violations of law. The term “expenses” shall also include
reasonable compensation for time spent by Advisor for which he is not
compensated by the Company or any subsidiary or third party (i) for any period
during which Advisor is not an agent, in the employment of, or providing
services for compensation to, the Company or any subsidiary; and (ii) if the
rate of compensation and estimated time involved is approved by the directors
of
the Company who are not parties to any action with respect to which expenses
are
incurred, for Advisor while an agent of, employed by, or providing services
for
compensation to, the Company or any subsidiary.
(b) Proceeding. For
purposes of this Agreement, the term “proceeding” shall be broadly construed and
shall include, without limitation, any threatened, pending, or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether brought in the right of the Company or otherwise and whether
of a civil, criminal, administrative or investigative nature, and whether formal
or informal in any case, in which Advisor was, is or will be involved as a
party
or otherwise by reason of: (i) the fact that Advisor is or was an
advisor to or agent of the Company; (ii) the fact that any action taken by
Advisor or of any action on Advisor’s part while acting as an advisor to the
Company; or (iii) the fact that Advisor is or was serving at the request of
the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
and in any such case described above, whether or not serving in any such
capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses may be provided
under
this Agreement.
(c) Subsidiary. For
purposes of this Agreement, the term “subsidiary” means any corporation or
limited liability company of which more than 50% of the outstanding voting
securities or equity interests are owned, directly or indirectly, by the Company
and one or more of its subsidiaries, and any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan
or
other enterprise of which Advisor is or was serving at the request of the
Company as a director, officer, employee, agent or fiduciary.
2. Indemnification.
(a) Indemnification
in
Proceedings. The Company shall indemnify Advisor to the
fullest extent permitted by applicable law, as the same may be amended from
time
to time (but, only to the extent that such amendment permits Advisor to broader
indemnification rights than applicable law permitted prior to adoption of such
amendment), if Advisor is a party to or threatened to be made a party to or
otherwise involved in any proceeding (including any proceeding by or in the
right of the Company to procure a judgment in its favor), for any and all
expenses, actually and reasonably incurred by Advisor in connection with the
investigation, defense, settlement or appeal of such proceeding.
8
(b) Exceptions. Any
provision herein to the contrary notwithstanding, the Company shall not be
obligated pursuant to the terms of this Agreement to indemnify Advisor on
account of any proceeding with respect to (i) remuneration paid to Advisor
if it is determined by final judgment or other final adjudication that such
remuneration was in violation of law, or (ii) a final judgment or other
final adjudication that Advisor’s conduct was in bad faith, knowingly fraudulent
or deliberately dishonest or constituted willful misconduct (but only to the
extent of such specific determination). For purposes of the foregoing
sentence, a final judgment or other adjudication may be reached in either the
underlying proceeding or action in connection with which indemnification is
sought or a separate proceeding or action to establish rights and liabilities
under this Agreement.
3. Indemnification
of Expenses of
Successful Party. Notwithstanding any other provision of this
Agreement, to the extent that Advisor has been 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 any action without prejudice, the
Company shall indemnify Advisor against all expenses actually and reasonably
incurred in connection with the investigation, defense or appeal of such
proceeding.
4. Advancement
of
Expenses. To the extent not prohibited by law, the Company
shall advance the expenses incurred by Advisor in connection with any
proceeding, and such advancement shall be made within twenty (20) days after
the
receipt by the Company of a statement or statements requesting such advances
(which shall include invoices received by Advisor in connection with such
expenses but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditures made that would cause
Advisor to waive any privilege accorded by applicable law shall not be included
with the invoice) and upon request of the Company, an undertaking to repay
the
advancement of expenses if and to the extent that it is ultimately determined
by
a court of competent jurisdiction in a final judgment, not subject to appeal,
that Advisor is not entitled to be indemnified by the
Company. Advances shall be unsecured, interest free and without
regard to Advisor’s ability to repay the expenses. Advances shall include any
and all expenses actually and reasonably incurred by Advisor pursuing an action
to enforce Advisor’s right to indemnification under this Agreement or otherwise
and this right of advancement, including expenses incurred preparing and
forwarding statements to the Company to support the advances
claimed. Advisor acknowledges that the execution and delivery of this
Agreement shall constitute an undertaking providing that Advisor shall, to
the
fullest extent required by law, repay the advance if and to the extent that
it
is ultimately determined by a court of competent jurisdiction in a final
judgment, not subject to appeal, that Advisor is not entitled to be indemnified
by the Company. The right to advances under this Section shall
continue until final disposition of any proceeding, including any appeal
therein.
9
5. Notice
and Other Indemnification
Procedures.
(a) Notification
of
Proceeding. Advisor will notify the Company in writing
promptly upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any proceeding or matter
which may be subject to indemnification or advancement of expenses covered
hereunder. The failure of Advisor to so notify the Company shall not
relieve the Company of any obligation which it may have to Advisor under this
Agreement or otherwise.
(b) Request
for Indemnification and
Indemnification Payments. Advisor shall notify the Company
promptly in writing upon receiving notice of any demand, judgment or other
requirement for payment that Advisor reasonably believes to be subject to
indemnification under the terms of this Agreement, and shall request payment
thereof by the Company. Indemnification payments requested by Advisor
hereunder shall be made by the Company no later than sixty (60) days after
receipt of the written request of Advisor.
(c) Application
for
Enforcement. In the event the Company fails to make timely
payments as set forth herein, Advisor shall have the right to apply to any
court
of competent jurisdiction for the purpose of enforcing Advisor’s right to
indemnification or advancement of expenses pursuant to this
Agreement. In such an enforcement hearing or proceeding, the burden
of proof shall be on the Company to prove that indemnification or advancement
of
expenses to Advisor is not required under this Agreement or permitted by
applicable law. Any determination by the Company (including its Board
of Directors, shareholders or independent counsel) that Advisor is not entitled
to indemnification hereunder, shall not be a defense by the Company to the
action nor create any presumption that Advisor is not entitled to
indemnification or advancement of expenses hereunder.
(d) Indemnification
of Certain
Expenses. The Company shall indemnify Advisor against all
expenses incurred in connection with any hearing or proceeding under this
Section unless the Company prevails in such hearing or proceeding on the
merits in all material respects.
6. Assumption
of
Defense. In the event the Company shall be requested by
Advisor to pay the expenses of any proceeding, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, or to participate
to
the extent permissible in such proceeding, with counsel reasonably acceptable
to
Advisor. Upon assumption of the defense by the Company and the
retention of such counsel by the Company, the Company shall not be liable to
Advisor under this Agreement for any fees of counsel subsequently incurred
by
Advisor with respect to the same proceeding, provided that Advisor shall have
the right to employ separate counsel in such proceeding at Advisor’s sole cost
and expense. Notwithstanding the foregoing, if Advisor’s counsel
delivers a written notice to the Company stating that such counsel has
reasonably concluded that there may be a conflict of interest between the
Company and Advisor in the conduct of any such defense or the Company shall
not,
in fact, have employed counsel or otherwise actively pursued the defense of
such
proceeding within a reasonable time, then in any such event the fees and
expenses of Advisor’s counsel to defend such proceeding shall be subject to the
indemnification and advancement of expenses provisions of this
Agreement.
10
7. Insurance.
To
the extent that
the Company maintains an insurance policy or policies providing liability
insurance for advisors to the Company or of any subsidiary (“Applicable
Insurance”), Advisor shall be covered by such policy or policies in accordance
with its or their terms to the maximum extent of the coverage available for
any
such advisor under such policy or policies. If, at the time of the
receipt of a notice of a claim pursuant to the terms hereof, the Company has
Applicable Insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding 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 Advisor, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
8. Nonexclusivity
and Survival of
Rights. The provisions for indemnification and advancement of
expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which Advisor may at any time be entitled under any provision of
applicable law, the Company’s Certificate of Incorporation, Bylaws or other
agreements, in any court in which a proceeding is brought, and Advisor’s rights
hereunder shall continue after Advisor has ceased acting as an advisor to or
agent of the Company and shall inure to the benefit of the heirs, executors,
administrators and assigns of Advisor. The obligations and duties of
the Company to Advisor under this Agreement shall be binding on the Company
and
its successors and assigns until terminated in accordance with its
terms. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, 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.
No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Advisor under this Agreement in respect
of
any action taken or omitted by such Advisor in his or her corporate status
prior
to such amendment, alteration or repeal. To the extent that a change
in applicable law, whether by statute or judicial decision, permits greater
indemnification or advancement of expenses than would be afforded currently
under the Company’s Certificate of Incorporation, Bylaws and this Agreement, it
is the intent of the parties hereto that Advisor shall enjoy by this Agreement
the greater benefits so afforded by such change. No right or remedy
herein conferred is intended to be exclusive of any other right or remedy,
and
every other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, by Advisor shall not prevent the concurrent
assertion or employment of any other right or remedy by Advisor.
9. Limitation
of
Liability. Any provision herein to the contrary
notwithstanding, under no circumstances shall Advisor have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company
or
its security holders, affiliates or creditors related to, arising out of or
in
connection with Advisor’s service as an advisor to or agent of the Company,
except for liability attributable to conduct by Advisor that is determined
by
final judgment or other final adjudication to be in bad faith, knowingly
fraudulent or deliberately dishonest or to have constituted willful misconduct
(and in any such case only to the extent of such specific
determination).
11
EXHIBIT
B
Non-Disclosure
Agreement
12