INDEMNIFICATION AGREEMENT
Exhibit 9.4
THIS
INDEMNIFICATION AGREEMENT (the “Agreement”) is
made and entered into as of June 15, 2015, between STOCOSIL INC., a
Delaware corporation (hereinafter “Company”) and
Xxxxxx X’Xxxx (hereinafter “Indemnitee”).
WITNESSETH THAT:
WHEREAS, highly competent persons have become more reluctant
to serve corporations as directors unless they are provided with
adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of the
corporation;
WHEREAS, the Board of Directors of the Company (the
“Board”) has
determined that, in order to attract and retain qualified
individuals, the Company will attempt to maintain on an ongoing
basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain
liabilities. Although the furnishing of such insurance
has been a customary and widespread practice among United
States-based corporations and other business enterprises, the
Company believes that, given current market conditions and trends,
such insurance may be available to it in the future only at higher
premiums and with more exclusions. At the same time,
directors, officers, and other persons in service to corporations
or business enterprises are being increasingly subjected to
expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only
against the Company or business enterprise itself. The
Bylaws and Certificate of Incorporation of the Company permits
indemnification of the officers and directors of the
Company. Indemnitee may also be entitled to
indemnification pursuant to the General Corporation Law of the
State of Delaware (“DGCL”);
WHEREAS, the uncertainties relating to such insurance and to
indemnification have increased the difficulty of attracting and
retaining such persons;
WHEREAS, the Board has determined that the increased
difficulty in attracting and retaining such persons is detrimental
to the best interests of the Company’s stockholders and that
the Company should act to assure such persons that there will be
increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the
Company contractually to obligate itself to indemnify, and to
advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they will not be so
indemnified;
WHEREAS, this Agreement is a supplement to and in
furtherance of the Bylaws and Certificate of Incorporation of the
Company and any resolutions adopted pursuant thereto, and shall not
be deemed a substitute therefore, nor to diminish or abrogate any
rights of Indemnitee thereunder; and
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WHEREAS, Indemnitee does not regard the protection available
under the Company’s Bylaws and Certificate of Incorporation
and insurance as adequate in the present circumstances, and may not
be willing to serve as an officer or director without adequate
protection, and the Company desires Indemnitee to serve in such
capacity. Indemnitee is willing to serve, continue to
serve and to take on additional service for or on behalf of the
Company on the condition that he be so indemnified;
and
NOW, THEREFORE, in consideration of Indemnitee’s
agreement to serve as a director from and after the date hereof,
the parties hereto agree as follows:
1. Indemnity
of Indemnitee. The Company hereby agrees to hold
harmless and indemnify Indemnitee to the fullest extent permitted
by law, as such may be amended from time to time. In
furtherance of the foregoing indemnification, and without limiting
the generality thereof.
(a) Proceedings
Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section l(a)
if, by reason of his Corporate Status (as hereinafter defined), the
Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding (as hereinafter defined) other than a
Proceeding by or in the right of the Company. Pursuant
to this Section 1(a),
Indemnitee shall be indemnified against all Expenses (as
hereinafter defined), judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him, or on his
behalf, in connection with such Proceeding or any claim, issue or
matter therein, if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, and with respect to any
criminal Proceeding, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful.
(b) Proceedings
by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this
Section
1(b) if, by reason of his Corporate Status, the Indemnitee
is, or is threatened to be made, a party to or participant in any
Proceeding brought by or in the right of the
Company. Pursuant to this Section 1(b),
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by the Indemnitee, or on the Indemnitee’s
behalf, in connection with such Proceeding if the Indemnitee acted
in good faith and in a manner the Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company;
provided,
however, if
applicable law so provides, no indemnification against such
Expenses shall be made in respect of any claim, issue or matter in
such Proceeding as to which Indemnitee shall have been adjudged to
be liable to the Company unless and to the extent that the Court of
Chancery of the State of Delaware shall determine that such
indemnification may be made.
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(c) Indemnification
for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee is, by reason of
his Corporate Status, a party to and is successful, on the merits
or otherwise, in any Proceeding, he shall be indemnified to the
maximum extent permitted by law, as such may be amended from time
to time, against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less
than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For
purposes of this Section and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as
to such claim, issue or matter.
(d) Indemnification
of Appointing Stockholder. If (i) Indemnitee is
or was affiliated with one or more venture capital funds that has
invested in the Company (an “Appointing
Stockholder”), (ii) the Appointing Stockholder is, or
is threatened to be made, a party to or a participant in any
Proceeding, and (iii) the Appointing Stockholder’s
involvement in the Proceeding results from any claim based on the
Indemnitee’s service to the Company as a director or other
fiduciary of the Company, the Appointing Stockholder will be
entitled to indemnification hereunder for Expenses to the same
extent as Indemnitee, and the terms of this Agreement as they
relate to procedures for indemnification of Indemnitee and
advancement of Expenses shall apply to any such indemnification of
Appointing Stockholder.
2. Additional
Indemnity. In addition to, and without regard to
any limitations on, the indemnification provided for in
Section
1 of this Agreement, the Company shall and hereby does
indemnify and hold harmless Indemnitee against all Expenses,
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf if, by reason of
his Corporate Status, he is, or is threatened to be made, a party
to or participant in any Proceeding (including a Proceeding by or
in the right of the Company), including, without limitation, all
liability arising out of the negligence or active or passive
wrongdoing of Indemnitee. The only limitation that shall
exist upon the Company’s obligations pursuant to this
Agreement shall be that the Company shall not be obligated to make
any payment to Indemnitee that is finally determined (under the
procedures, and subject to the presumptions, set forth in
Sections
6 and 7 hereof) to
be unlawful.
3. Contribution.
(a) Whether
or not the indemnification provided in Sections 1 and
2
hereof is available, in respect of any threatened, pending or
completed action, suit or proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), the Company shall pay, in the first
instance, the entire amount of any judgment or settlement of such
action, suit or proceeding without requiring Indemnitee to
contribute to such payment and the Company hereby waives and
relinquishes any right of contribution it may have against
Indemnitee. The Company shall not enter into any
settlement of any action, suit or proceeding in which the Company
is jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding) unless such settlement provides for a
full and final release of all claims asserted against
Indemnitee.
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(b) Without
diminishing or impairing the obligations of the Company set forth
in the preceding subparagraph, if, for any reason, Indemnitee shall
elect or be required to pay all or any portion of any judgment or
settlement in any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such action, suit or proceeding), the
Company shall contribute to the amount of Expenses, judgments,
fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company and all officers,
directors or employees of the Company, other than Indemnitee, who
are jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand, from the transaction or events from which such
action, suit or proceeding arose; provided,
however, that
the proportion determined on the basis of relative benefit may, to
the extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand, in connection with the transaction or events that
resulted in such expenses, judgments, fines or settlement amounts,
as well as any other equitable considerations which applicable law
may require to be considered. The relative fault of the
Company and all officers, directors or employees of the Company,
other than Indemnitee, who are jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), on the one
hand, and Indemnitee, on the other hand, shall be determined by
reference to, among other things, the degree to which their actions
were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary and the
degree to which their conduct is active or passive.
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee
harmless from any claims of contribution which may be brought by
officers, directors, or employees of the Company, other than
Indemnitee, who may be jointly liable with Indemnitee.
(d) To
the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by
Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, in
connection with any claim relating to an indemnifiable event under
this Agreement, in such proportion as is deemed fair and reasonable
in light of all of the circumstances of such Proceeding in order to
reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding and/or (ii) the relative fault of the
Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or
transaction(s).
4. Indemnification
for Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee
is, by reason of his Corporate Status, a witness, or is made (or
asked) to respond to discovery requests, in any Proceeding to which
Indemnitee is not a party, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf
in connection therewith.
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5. Advancement
of Expenses. Notwithstanding any other provision
of this Agreement, the Company shall advance all Expenses incurred
by or on behalf of Indemnitee in connection with any Proceeding by
reason of Indemnitee’s Corporate Status within thirty (30)
days after the receipt by the Company of a statement or statements
from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall
include or be preceded or accompanied by a written undertaking by
or on behalf of Indemnitee to repay any Expenses advanced if it
shall ultimately be determined that Indemnitee is not entitled to
be indemnified against such Expenses. Any advances and
undertakings to repay pursuant to this Section 5
shall be unsecured and interest free.
6. Procedures
and Presumptions for Determination of Entitlement to
Indemnification. It is the intent of this
Agreement to secure for Indemnitee rights of indemnity that are as
favorable as may be permitted under the DGCL and public policy of
the State of Delaware. Accordingly, the parties agree
that the following procedures and presumptions shall apply in the
event of any question as to whether Indemnitee is entitled to
indemnification under this Agreement:
(a) To
obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to
indemnification. The Secretary or another executive
officer of the Company shall, promptly upon receipt of such a
request for indemnification, advise the Board in writing that
Indemnitee has requested
indemnification. Notwithstanding the foregoing, any
failure of Indemnitee to provide such a request to the Company, or
to provide such a request in a timely fashion, shall not relieve
the Company of any liability that it may have to Indemnitee unless,
and to the extent that, such failure actually and materially
prejudices the interests of the Company.
(b) Upon
written request by Indemnitee for indemnification pursuant to the
first sentence of Section 6(a)
hereof, a determination with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of
the following four methods, which shall be at the election of the
Board (1) by a majority vote of the disinterested directors, even
though less than a quorum, (2) by a committee of disinterested
directors designated by a majority vote of the disinterested
directors, even though less than a quorum, (3) if there are no
disinterested directors or if the disinterested directors so
direct, by independent legal counsel in a written opinion to the
Board, a copy of which shall be delivered to the Indemnitee, or (4)
if so directed by the Board, by the stockholders of the
Company. For purposes hereof, disinterested directors
are those members of the Board who are not parties to the action,
suit or proceeding in respect of which indemnification is sought by
Indemnitee.
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(c) If
the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 6(b)
hereof, the Independent Counsel shall be selected as provided in
this Section
6(c). The Independent Counsel shall be selected
by the Board. Indemnitee may, within ten (10) days after
such written notice of selection shall have been given, deliver to
the Company a written objection to such selection; provided,
however, that such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the
requirements of “Independent
Counsel” as defined in Section 13 of
this Agreement, and the objection shall set forth with
particularity the factual basis of such
assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If
a written objection is made and substantiated, the Independent
Counsel selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that
such objection is without merit. If, within twenty (20)
days after submission by Indemnitee of a written request for
indemnification pursuant to Section 6(a)
hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition the
Court of Chancery of the State of Delaware or other court of
competent jurisdiction for resolution of any objection which shall
have been made by the Indemnitee to the Company’s selection
of Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the court or by such other person
as the court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act
as Independent Counsel under Section 6(b)
hereof. The Company shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to
Section
6(b) hereof, and the Company shall pay all reasonable fees
and expenses incident to the procedures of this Section 6(c),
regardless of the manner in which such Independent Counsel was
selected or appointed.
(d) In
making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making
such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to
overcome this presumption shall have the burden of proof and the
burden of persuasion by clear and convincing
evidence. Neither the failure of the Company (including
by its directors or independent legal counsel) to have made a
determination prior to the commencement of any action pursuant to
this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including by its directors
or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has not met the applicable
standard of conduct.
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(e) Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s
action is based on the records or books of account of the
Enterprise (as hereinafter defined), including financial
statements, or on information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, or on the
advice of legal counsel for the Enterprise or on information or
records given or reports made to the Enterprise by an independent
certified public accountant or by an appraiser or other expert
selected with reasonable care by the Enterprise. In
addition, the knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. Whether or not the
foregoing provisions of this Section 6(e)
are satisfied, it shall in any event be presumed that Indemnitee
has at all times acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company. Anyone seeking to overcome this presumption
shall have the burden of proof and the burden of persuasion by
clear and convincing evidence.
(f) If
the person, persons or entity empowered or selected under
Section
6 to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within sixty
(60) days after receipt by the Company of the request therefore,
the requisite determination of entitlement to indemnification shall
be deemed to have been made and Indemnitee shall be entitled to
such indemnification absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law;
provided,
however, that
such sixty (60) day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the person,
persons or entity making such determination with respect to
entitlement to indemnification in good faith requires such
additional time to obtain or evaluate documentation and/or
information relating thereto; and provided
further, that
the foregoing provisions of this Section 6(f)
shall not apply if the determination of entitlement to
indemnification is to be made by the stockholders pursuant to
Section
6(b) of this Agreement and if (A) within fifteen (15) days
after receipt by the Company of the request for such determination,
the Board or the Disinterested Directors, if appropriate, resolve
to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within
seventy five (75) days after such receipt and such determination is
made thereat, or (B) a special meeting of stockholders is called
within fifteen (15) days after such receipt for the purpose of
making such determination, such meeting is held for such purpose
within sixty (60) days after having been so called and such
determination is made thereat.
(g) Indemnitee
shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any
Independent Counsel, member of the Board or stockholder of the
Company shall act reasonably and in good faith in making a
determination regarding the Indemnitee’s entitlement to
indemnification under this Agreement. Any costs or
expenses (including attorneys’ fees and disbursements)
incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold Indemnitee harmless there from.
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(h) The
Company acknowledges that a settlement or other disposition short
of final judgment may be successful if it permits a party to avoid
expense, delay, distraction, disruption and
uncertainty. In the event that any action, claim or
proceeding to which Indemnitee is a party is resolved in any manner
other than by adverse judgment against Indemnitee (including,
without limitation, settlement of such action, claim or proceeding
with or without payment of money or other consideration) it shall
be presumed that Indemnitee has been successful on the merits or
otherwise in such action, suit or proceeding. Anyone
seeking to overcome this presumption shall have the burden of proof
and the burden of persuasion by clear and convincing
evidence.
(i) The
termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not (except as
otherwise expressly provided in this Agreement) of itself adversely
affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the
best interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that
his conduct was unlawful.
7. Remedies
of Indemnitee.
(a) In
the event that (i) a determination is made pursuant to Section 6 of
this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 5 of
this Agreement, (iii) no determination of entitlement to
indemnification is made pursuant to Section 6(b)
of this Agreement within ninety (90) days after receipt by the
Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to this Agreement within ten
(10) days after receipt by the Company of a written request
therefore, or (v) payment of indemnification is not made within ten
(10) days after a determination has been made that Indemnitee is
entitled to indemnification or such determination is deemed to have
been made pursuant to Section 6 of
this Agreement, Indemnitee shall be entitled to an adjudication in
an appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of Indemnitee’s entitlement
to such indemnification. Indemnitee shall commence such
proceeding seeking an adjudication within one hundred eighty (180)
days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section
7(a). The Company shall not oppose
Indemnitee’s right to seek any such
adjudication.
(b) In
the event that a determination shall have been made pursuant to
Section
6(b) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this
Section
7 shall be conducted in all respects as a de novo trial on
the merits, and Indemnitee shall not be prejudiced by reason of the
adverse determination under Section
6(b).
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(c) If
a determination shall have been made pursuant to Section 6(b)
of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial
proceeding commenced pursuant to this Section 7,
absent (i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make Indemnitee’s
misstatement not materially misleading in connection with the
application for indemnification, or (ii) a prohibition of such
indemnification under applicable law.
(d) In
the event that Indemnitee, pursuant to this Section 7,
seeks a judicial adjudication of his rights under, or to recover
damages for breach of, this Agreement, or to recover under any
directors’ and officers’ liability insurance policies
maintained by the Company, the Company shall pay on his behalf, in
advance, any and all expenses (of the types described in the
definition of Expenses in Section 13 of
this Agreement) actually and reasonably incurred by him in such
judicial adjudication, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advancement
of expenses or insurance recovery.
(e) The
Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 7 that
the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court that
the Company is bound by all the provisions of this
Agreement. The Company shall indemnify Indemnitee
against any and all Expenses and, if requested by Indemnitee, shall
(within ten (10) days after receipt by the Company of a written
request therefore) advance, to the extent not prohibited by law,
such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for
indemnification or advance of Expenses from the Company under this
Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company, regardless
of whether Indemnitee ultimately is determined to be entitled to
such indemnification, advancement of Expenses or insurance
recovery, as the case may be.
(f) Notwithstanding
anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be
required to be made prior to the final disposition of the
Proceeding.
8. Non-Exclusivity;
Survival of Rights; Insurance; Primacy of Indemnification;
Subrogation.
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(a) The
rights of indemnification as provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may at
any time be entitled under applicable law, the Certificate of
Incorporation, the By-laws, any agreement, a vote of stockholders,
a resolution of directors of the Company, or
otherwise. No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any
right of Indemnitee under this Agreement in respect of any action
taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal. To the extent
that a change in the DGCL, whether by statute or judicial decision,
permits greater indemnification than would be afforded currently
under the Certificate of Incorporation, By-laws and this
Agreement, it is the intent of the parties hereto that Indemnitee
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, shall
not prevent the concurrent assertion or employment of any other
right or remedy.
(b) To
the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers,
employees, or agents or fiduciaries of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise that such person serves at the request of
the Company, Indemnitee 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 director, officer, employee, agent or
fiduciary 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 directors’ and officers’ liability
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 the Indemnitee, all
amounts payable as a result of such proceeding in accordance with
the terms of such policies.
(c) In
the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and
take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company
to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the
extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or
otherwise.
(e) The
Company’s obligation to indemnify or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the
Company as a director, officer, employee or agent of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise shall be reduced by any amount Indemnitee
has actually received as indemnification or advancement of expenses
from such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise.
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9. Exception
to Right of Indemnification. Notwithstanding any provision
in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any claim made
against Indemnitee:
(a) for
which payment has actually been made to or on behalf of Indemnitee
under any insurance policy or other indemnity provision, except
with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provision, provided, that the
foregoing shall not affect the rights of; or
(b) for
an accounting of profits made from the purchase and sale (or sale
and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or similar
provisions of state statutory law or common law; or
(c) in
connection with any Proceeding (or any part of any Proceeding)
initiated by Indemnitee, including any Proceeding (or any part of
any Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees or other indemnitees, unless (i) the
Board authorized the Proceeding (or any part of any Proceeding)
prior to its initiation, or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers
vested in the Company under applicable law.
10. Duration
of Agreement. All agreements and obligations of
the Company contained herein shall continue during the period
Indemnitee is an officer or director of the Company (or is or was
serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise) and shall continue thereafter
so long as Indemnitee shall be subject to any Proceeding (or any
proceeding commenced under Section 7
hereof) by reason of his Corporate Status, whether or not he is
acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under
this Agreement. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto
and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company),
assigns, spouses, heirs, executors and personal and legal
representatives.
11. Security. To
the extent requested by Indemnitee and approved by the Board, the
Company may at any time and from time to time provide security to
Indemnitee for the Company’s obligations hereunder through an
irrevocable bank line of credit, funded trust or other
collateral. Any such security, once provided to
Indemnitee, may not be revoked or released without the prior
written consent of the Indemnitee.
12. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this
Agreement and assumes the obligations imposed on it hereby in order
to induce Indemnitee to serve as an officer or director of the
Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as an officer or director of the
Company.
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(b) This
Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied,
between the parties hereto with respect to the subject matter
hereof.
(c) The
Company shall not seek from a court, or agree to, a “bar
order” which would have the effect of prohibiting or limiting
the Indemnitee’s rights to receive advancement of expenses
under this Agreement.
13. Definitions. For
purposes of this Agreement:
(a) “Corporate
Status” describes the status of a person who is or was
a director, officer, employee, agent or fiduciary of the Company or
of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise that such person is or
was serving at the express written request of the
Company.
(b) “Disinterested
Director” means a director of the Company who is not
and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(c) “Enterprise”
shall mean the Company and any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
that Indemnitee is or was serving at the express written request of
the Company as a director, officer, employee, agent or
fiduciary.
(d) “Expenses”
shall include all reasonable attorneys’ fees, retainers,
court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, participating, or being or preparing to be a
witness in a Proceeding, or responding to, or objecting to, a
request to provide discovery in any Proceeding. Expenses
also shall include Expenses incurred in connection with any appeal
resulting from any Proceeding and any federal, state, local or
foreign taxes imposed on the Indemnitee as a result of the actual
or deemed receipt of any payments under this Agreement, including
without limitation the premium, security for, and other costs
relating to any cost bond, supersede as bond, or other appeal bond
or its equivalent. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments
or fines against Indemnitee.
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(e) “Independent
Counsel” means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent (i) the Company or Indemnitee in any matter material to
either such party (other than with respect to matters concerning
Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The
Company agrees to pay the reasonable fees of the Independent
Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto.
(f) “Proceeding”
includes 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 by or in the right of the
Company or otherwise and whether civil, criminal, administrative or
investigative, in which Indemnitee was, is or will be involved as a
party or otherwise, by reason of his or her Corporate Status, by
reason of any action taken by him or of any inaction on his part
while acting in his or her Corporate Status; in each case whether
or not he is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification can be
provided under this Agreement; including one pending on or before
the date of this Agreement, but excluding one initiated by an
Indemnitee pursuant to Section 7 of
this Agreement to enforce his rights under this
Agreement.
14. Severability. The
invalidity or unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other
provision. Further, the invalidity or unenforceability
of any provision hereof as to either Indemnitee or Appointing
Stockholder shall in no way affect the validity or enforceability
of any provision hereof as to the other. Without
limiting the generality of the foregoing, this Agreement is
intended to confer upon Indemnitee and Appointing Stockholder
indemnification rights to the fullest extent permitted by
applicable laws. In the event any provision hereof
conflicts with any applicable law, such provision shall be deemed
modified, consistent with the aforementioned intent, to the extent
necessary to resolve such conflict.
15. Modification
and Waiver. No supplement, modification,
termination 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.
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16. Notice
By Indemnitee. Indemnitee agrees promptly to
notify the Company in writing upon being served with or otherwise
receiving any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding or matter
which may be subject to indemnification covered
hereunder. The failure to so notify the Company shall
not relieve the Company of any obligation which it may have to
Indemnitee under this Agreement or otherwise unless and only to the
extent that such failure or delay materially prejudices the
Company.
17. Notices. All
notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given
(a) upon personal delivery to the party to be notified, (b) when
sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed,
then on the next business day, (c) five (5) days after having been
sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications
shall be sent:
(a) To
Indemnitee at the address set forth below Indemnitee’s
signature hereto.
(b) To
the Company at:
00000
Xxxxxxxxx Xx., Xxxxx 000
Xxxx
xx Xxxxxxxx, XX 00000
Attn:
Pyng Soon, CEO
or
to such other address as may have been furnished to Indemnitee by
the Company or to the Company by Indemnitee, as the case may
be.
18. Counterparts. This
Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same the same
instrument. Counterparts may be
delivered via facsimile, electronic mail (including pdf or
any electronic signature complying with the U.S. federal ESIGN Act
of 2000, e.g.,
xxx.xxxxxxxx.xxx) or other transmission
method and any counterpart so delivered shall be deemed to have
been duly and validly delivered and be valid and effective for all
purposes
19. Headings. The
headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
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20. Governing
Law and Consent to Jurisdiction. This Agreement and the
legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Delaware, without regard to its conflict of laws rules. The Company
and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding
arising out of or in connection with this Agreement shall be
brought only in the Chancery Court of the State of Delaware (the
“Delaware
Court”), and not in any other state or federal court
in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out
of or in connection with this Agreement, (iii) waive any objection
to the laying of venue of any such action or proceeding in the
Delaware Court, and (iv) waive, and agree not to plead or to make,
any claim that any such action or proceeding brought in the
Delaware Court has been brought in an improper or inconvenient
forum.
[Signature
page follows.]
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[Missing
Graphic Reference] 00000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx xx Xxxxxxxx, XX
00000
IN
WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement on and as of the day and year first above
written.
|
By:____________________________________
Name: Pyng
Soon
Title: CEO
INDEMNITEE
_______________________________________
(Signature)
_______________________________________
Print
Name
_______________________________________
_______________________________________
Address: |
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