ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED INDEMNIFICATION AGREEMENT
Exhibit
10.1
ICO
GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED
This
INDEMNIFICATION AGREEMENT (the “Agreement”) is made as of _______________, 2009,
by and between ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED (the “Company”), a
Delaware corporation, and _______________________, (“Indemnitee”).
Recitals
WHEREAS,
the Company desires to attract and retain the involvement of highly qualified
individuals, such as Indemnitee, to serve the Company and, in part, in order to
induce Indemnitee to be involved with the Company;
WHEREAS,
the Company and Indemnitee each further recognize the substantial increase in
corporate litigation in general, subjecting directors, officers, employees,
agents and fiduciaries to expensive litigation risks at the same time as the
availability and coverage of liability insurance can be
constrained;
WHEREAS,
competent and experienced persons often are reluctant to serve as directors,
officers, employees, agents and fiduciaries of corporations unless they are
protected by comprehensive polices of insurance and indemnification, due to the
number of lawsuits against such corporations and their directors, officers,
employees, agents and fiduciaries, the attendant expense of defending against
such lawsuits, and the exposure of such directors, officers, employees, agents
and fiduciaries to unreasonably high damages;
WHEREAS,
present laws and interpretations are not always sufficiently certain to provide
such directors, officers, employees, agents and fiduciaries with adequate,
reliable knowledge of the legal risks to which they might be exposed as a result
of serving a corporation;
WHEREAS,
the Company has concluded that protecting its directors, officers, employees,
agents and fiduciaries against such risks helps to attract the most capable
persons to such positions;
WHEREAS,
the Company desires to have Indemnitee serve or continue to serve as a director,
officer, employee, agent or fiduciary of the Company free from undue concern for
damages by reason of Indemnitee being a director, officer, employee, agent or
fiduciary of the Company or by reason of his or her decisions or actions on its
behalf, and Indemnitee is willing to serve or to continue to serve in one or
more of such capacities, if he or she is furnished the indemnity provided for
hereinafter; and
WHEREAS,
to induce Indemnitee to serve or continue to serve as a director, officer,
employee, agent or fiduciary of the Company, the Company has determined to grant
to Indemnitee, as permitted by Section 145(f) of the General Corporation
Law of the State of Delaware (hereinafter, the “DGCL”), rights to
indemnification and advancement of expenses as provided herein, whether or not
expressly provided in the Certificate of Incorporation or the By-Laws of the
Company or other provisions of Section 145 of the DGCL.
Agreement
Now,
therefore, the Company and Indemnitee hereby agree as set forth
below.
1. Certain
Definitions.
(a) “Affiliate”
of an individual, joint venture, corporation, limited liability company, trust,
unincorporated organization or other entity (each a “Person”) means a Person
that directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the first Person, and with
respect to a natural person includes any child, stepchild, grandchild, parent,
stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law or sister-in-law, and includes adoptive
relationships. “Controlled by” and “under common control with” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership
of voting securities, by contract or credit arrangement, as trustee or executor,
or otherwise.
(b) “Claim”
shall mean any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or otherwise.
(c) References
to the “Company”
shall include, in addition to ICO Global Communications (Holdings) Limited, any
resulting or constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees, agents, control persons, stockholders, or fiduciaries, so that if
Indemnitee is or was or may be deemed a director, officer, employee, agent, control person, stockholder or fiduciary of
such constituent corporation, or is or was or may be deemed to be serving at the
request of such constituent corporation as a director, officer, employee, control person, stockholder, agent or fiduciary
of another corporation, partnership, joint venture, employee benefit plan, trust
or other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(d) “Expenses”
shall mean any and all expenses (including attorneys’ fees and all other costs,
expenses and obligations incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or preparing to
defend, to be a witness in or to participate in, any action, suit, proceeding,
alternative dispute resolution mechanism, hearing, inquiry or investigation),
judgments, losses, fines, penalties and amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval shall not be
unreasonably withheld) of any Claim regarding any Indemnifiable Event and any
federal, state, local or foreign taxes imposed on Indemnitee as a result of the
actual or deemed receipt of any payments under this Agreement, including all
interest, assessments and other charges paid or payable in connection with or in
respect of such expenses.
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(e) “Expense
Advance” shall mean an advance payment of Expenses to Indemnitee pursuant
to Section 4(a).
(f) “Indemnifiable
Event” shall mean any event or occurrence in any way resulting from,
arising out of or in connection with, based upon or directly related to the fact
that Indemnitee is or was a director, officer,
employee, agent or fiduciary of
the Company, or any subsidiary of the Company, or by reason of (or arising in part or in whole
out of) any event or occurrence related to (a) the fact that Indemnitee is or
was or may be deemed a director, officer, employee, agent or fiduciary of the
Company, or any subsidiary of the Company, or (b) is or was or may be deemed to
be serving at the request of the Company as a director, officer, employee, agent
or fiduciary of another corporation, partnership, limited liability company,
joint venture, trust or other enterprise, or (c) to the fullest extent permitted
by applicable law, any alleged breach by Indemnitee of his or her fiduciary duty
as a director or officer of the Company or any of its subsidiaries, or (d) by
reason of any action or inaction on the part of Indemnitee while serving in the
capacity of a director, officer, employee, agent or fiduciary of the Company, or
any subsidiary of the Company, including, without limitation, any and all
losses, claims, damages, expenses and liabilities, joint or several (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit, proceeding or any claim
asserted) under the Securities Act of 1933, as amended (the “Securities Act”),
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise or (e) which relates directly or indirectly to the
registration, purchase, sale or ownership of any securities of the Company or to
any fiduciary obligation owed with respect thereto or (f) as a direct or
indirect result of any Claim made by any stockholder of the Company against
Indemnitee and arising out of or related to any round of financing of the
Company (including but not limited to Claims regarding non-participation, or
non-prorata participation, in such round by such stockholder), or (g) made by a
third party against Indemnitee based on any misstatement or omission of a
material fact by the Company in violation of any duty of disclosure imposed on
the Company by federal or state securities or common laws.
(g) References
to the “Indemnitee”
shall include, in addition to Indemnitee, his or her employees, agents, spouse
and their respective Affiliates, including, without limitation, any of such
Persons who may be liable within the meaning of Section 15 of the Securities
Act, or Section 20 of the Exchange Act.
(h “Independent Legal
Counsel” shall mean an attorney or firm of attorneys, selected in
accordance with the provisions of Section 3(c) hereof, who shall not have
otherwise performed services for the Company or Indemnitee within the last three
(3) years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity
agreements).
(i) References
to “other
enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on Indemnitee with respect to an
employee benefit plan; and references to “serving at the request of the Company”
shall include any service as a director, officer, employee, agent or fiduciary
of the Company which imposes duties on, or involves services by, such director,
officer, employee, agent or fiduciary with respect to an employee benefit plan,
its participants or its beneficiaries; and if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnitee shall be
deemed to have acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
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(j) “Reviewing
Party” shall mean (i) a majority of the disinterested members of the
Company’s Board of Directors, even if less than a quorum, (ii) a committee of
disinterested members of the Company’s Board of Directors, even if less than a
quorum, selected by a majority of the disinterested members of the Company’s
Board of Directors, even if less than a quorum or (iii) at Indemnitee’s
election, Independent Legal Counsel.
2. Agreement to
Serve. Indemnitee agrees to serve or continue to serve as an
officer and/or member of the board of directors of the Company for so long as he
or she is duly elected or appointed or until such time as he or she tenders his
or her resignation in writing.
3. Indemnification.
(a) Indemnification of
Expenses. Subject to Section 3(b) below, the Company shall
indemnify, defend and hold harmless Indemnitee to the fullest extent permitted
by law if Indemnitee was or is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, any Claim by reason of, or arising in part out of, any
Indemnifiable Event, against Expenses, including all interest, assessments and
other charges paid or payable in connection with or in respect of such
Expenses. Such payment of Expenses shall be made by the Company as
soon as practicable but in any event no later than thirty (30) business days
after written demand by Indemnitee therefor is presented to the
Company.
(b) Reviewing
Party. Notwithstanding the foregoing, (i) the obligations
of the Company under Section 3(a) shall be subject to the condition that
the Reviewing Party shall not have determined (in a written opinion, in any case
in which the Independent Legal Counsel referred to in Section 3(c) hereof
is involved) that Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make an Expense
Advance shall be subject to the condition that, if, when and to the extent that
the Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed
by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee should be indemnified under applicable
law, any determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding, the
Company shall continue to make Expense Advances to Indemnitee, and Indemnitee
shall not be required to reimburse the Company for any Expense Advance until a
final judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or
lapsed). Indemnitee’s obligation to reimburse the Company for any
Expense Advance shall be unsecured and no interest shall be charged
thereon. If there has been no determination by the Reviewing Party or
if the Reviewing Party determines that Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable law, Indemnitee
shall have the right to commence litigation seeking an initial determination by
the court or challenging any such determination by the Reviewing Party or any
aspect thereof, including the legal or factual bases therefor, and the Company
hereby consents to service of process and to appear in any such
proceeding. Absent such litigation, any determination by the
Reviewing Party shall be conclusive and binding on the Company and
Indemnitee.
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(c) Independent Legal
Counsel. With respect to all matters thereafter arising
concerning the rights of Indemnitee to payments of Expenses and Expense Advances
under this Agreement or any other agreement or under the Company’s Certificate
of Incorporation (the “Certificate”) or Bylaws as now or hereafter in effect,
Independent Legal Counsel, if desired by Indemnitee, shall be selected by
Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld). Such counsel, among other things, shall render its written
opinion to the Company and Indemnitee as to whether and to what extent
Indemnitee would be permitted to be indemnified under applicable law and the
Company agrees to abide by such opinion. The Company agrees to pay
the reasonable fees of the Independent Legal Counsel referred to above and to
indemnify fully such counsel against any and all expenses (including attorneys’
fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto. Notwithstanding any
other provision of this Agreement, the Company shall not be required to pay
Expenses of more than one Independent Legal Counsel in connection with all
matters concerning a single Indemnitee, and such Independent Legal Counsel shall
be the Independent Legal Counsel for any or all other Indemnitees unless (i) the
Company otherwise determines, (ii) the Independent Legal Counsel is no longer
willing or able to serve, or (iii) any Indemnitee shall provide a written
statement setting forth in detail a reasonable objection to such Independent
Legal Counsel serving and Independent Legal Counsel with respect to other
Indemnitees.
(d) Contribution. If
the indemnification provided for in Section 3(a) above for any reason is
held by a court of competent jurisdiction to be unavailable to Indemnitee in
respect of any losses, claims, damages, expenses or liabilities referred to
therein, then the Company, in lieu of indemnifying Indemnitee thereunder, shall
contribute to the amount paid or payable by Indemnitee as a result of such
losses, claims, damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
Indemnitee, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and Indemnitee in connection with the action or inaction
which resulted in such losses, claims, damages, expenses or liabilities, as well
as any other relevant equitable considerations. In connection with
the registration of the Company’s securities, the relative benefits received by
the Company and Indemnitee shall be deemed to be in the same respective
proportions that the net proceeds from the offering (before deducting expenses)
received by the Company and Indemnitee, in each case as set forth in the table
on the cover page of the applicable prospectus, bear to the aggregate public
offering price of the securities so offered. The relative fault of
the Company and Indemnitee shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or Indemnitee and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
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The
Company and Indemnitee agree that it would not be just and equitable if
contribution pursuant to this Section 3(d) were determined by pro rata or per
capita allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. In connection with the registration of the Company’s
securities, in no event shall Indemnitee be required to contribute any amount
under this Section 3(d) in excess of the lesser of (i) that proportion of the
total of such losses, claims, damages or liabilities indemnified against equal
to the proportion of the total securities sold under such registration statement
which is being sold by Indemnitee or (ii) the proceeds received by Indemnitee
from its sale of securities under such registration statement. No
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not found guilty of such fraudulent
misrepresentation.
(e) Mandatory Payment of
Expenses. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise, including, without limitation, the dismissal of any action without
prejudice, in defense of any Claim regarding any Indemnifiable Event, Indemnitee
shall be indemnified against all Expenses incurred by Indemnitee in connection
therewith.
4. Expenses; Indemnification
Procedure.
(a) Advancement of
Expenses. The Company shall advance all Expenses incurred by
Indemnitee. The advances to be made hereunder shall be paid by the
Company to Indemnitee as soon as practicable but in any event no later than
thirty (30) business days after written demand by Indemnitee is presented to the
Company, if Indemnitee provides the Company with all of the following: (a) a
written affirmation of his or her good faith belief that he or she has not
breached or failed to perform his or her duties to the Company or an Affiliate
of the Company; and (b) a written undertaking, executed personally, to repay all
Expense Advances to the extent that it is ultimately determined that
indemnification under this Section 4(a) is not required under Section
3.
(b) Notice/Cooperation by
Indemnitee. Indemnitee shall, as a condition precedent to
Indemnitee’s right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any Claim made against Indemnitee
for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the Secretary
of the Company at the address shown on the signature page of this Agreement (or
such other address as the Company shall designate in writing to Indemnitee). In
addition, Indemnitee shall give the Company such information and cooperation as
it may reasonably require and as shall be within Indemnitee’s
power.
(c) No Presumptions; Burden of
Proof. For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law, shall be a defense to Indemnitee’s claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any
particular belief. In connection with any determination by the Reviewing Party
or otherwise as to whether the Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
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(d) Notice to
Insurers. If, at the time of the receipt by the Company of a
notice of a Claim pursuant to Section 4(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt notice of the commencement of such Claim 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
Claim in accordance with the terms of such policies.
(e) Selection of
Counsel. In the event the Company shall be obligated hereunder
to pay the Expenses of any Claim, the Company, if appropriate, shall be entitled
to assume the defense of such Claim with counsel approved by Indemnitee upon the
delivery to Indemnitee of written notice of the Company’s election so to
do. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees or expenses of
separate counsel subsequently employed by or on behalf of Indemnitee with
respect to the same Claim; provided that, (i) Indemnitee shall have the
right to employ Indemnitee’s separate counsel in any such Claim at Indemnitee’s
expense; (ii) Indemnitee shall have the right to employ its own counsel in
connection with any such proceeding, at the expense of the Company, if such
counsel serves in a review, observer, advice and counseling capacity and does
not otherwise materially control or participate in the defense of such
proceeding; and (iii) if (A) the employment of separate counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee shall
have reasonably concluded that there is a conflict of interest
between the Company and Indemnitee in the conduct of any such defense, or (C)
the Company shall not continue to retain such counsel to defend such Claim, then
the fees and expenses of Indemnitee’s separate counsel shall be at the expense
of the Company.
5. Additional Indemnification Rights;
Nonexclusivity.
(a) Scope. The Company
hereby agrees to indemnify Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by the
other provisions of this Agreement or any other agreement, the Company’s
Certificate, the Company’s Bylaws or by statute. In the event of any
change after the date of this Agreement in any applicable law, statute or rule
which expands the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, stockholder,
employee, controlling person, agent
or fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits afforded by such change. In
the event of any change in any applicable law, statute or rule which narrows the
right of a Delaware corporation to indemnify a member of its board of directors
or an officer, stockholder, employee, controlling person, agent or fiduciary, such change, to the
extent not otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties’ rights and
obligations hereunder except as set forth in Section 9(a)
hereof.
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(b) Nonexclusivity. The
indemnification provided by this Agreement shall be in addition to any rights to
which Indemnitee may be entitled under the Company’s Certificate, the Company’s
Bylaws, any other agreement, any vote of stockholders or disinterested
directors, the Delaware General Corporations Law (the “DGCL”), or otherwise. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action Indemnitee took or did not take while serving in an indemnified
capacity even though Indemnitee may have ceased to serve in such capacity and
such indemnification shall inure to the benefit of Indemnitee from and after
Indemnitee’s first day of affiliation with the Company.
(c) No Duplication of
Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy, provision of the Company’s Certificate, bylaw or otherwise) of the
amounts otherwise indemnifiable hereunder.
6. Partial
Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for any portion of Expenses
incurred in connection with any Claim, but not, however, for all of the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion of such Expenses to which Indemnitee is entitled.
7. Mutual
Acknowledgment. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy, including
policies articulated by the Securities and Exchange Commission, may prohibit the
Company from indemnifying its directors, officers, employees, stockholders, controlling persons, agents, fiduciaries or related parties
under this Agreement or otherwise. Indemnitee understands and acknowledges that
the Company has undertaken or may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification
to a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify Indemnitee. In any such case, the
Company shall provide contribution to Indemnitee with respect to any Claim to
the maximum extent permitted by applicable law.
8. More Favorable
Terms. (a) If at any time when this Agreement is in effect,
the Company provides to any director, officer, employee, agent or fiduciary more
favorable indemnification terms than the indemnification terms provided under
this Agreement, the Company will promptly notify Indemnitee of such change in
terms and the Company shall grant equally favorable terms to Indemnitee as those
granted to such other director, officer, employee, agent or
fiduciary. The more favorable terms shall apply as of the effective
date of the Company’s arrangement with its other director, officer, employee,
agent or fiduciary, as applicable, and shall continue until the earlier of
termination of this Agreement or the termination of such
arrangement.
(b) To the
extent the Company maintains liability insurance applicable to directors,
officers, employees, agents or fiduciaries, Indemnitee shall be covered by such
policies in such a manner as to provide Indemnitee the same rights and
benefits as are provided to the most favorably insured of the Company’s
directors, if Indemnitee is a director; or of the Company’s officers, if
Indemnitee is not a director of the Company but is an officer; or of the
Company’s key employees, agents or fiduciaries, if Indemnitee is not an officer
or director but is a key employee, agent or fiduciary.
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9. Exceptions. Notwithstanding
any other provision of this Agreement, the Company shall not be obligated
pursuant to the terms of this Agreement:
(a) Claims Initiated by
Indemnitee. To indemnify or advance Expenses to Indemnitee
with respect to Claims initiated or brought voluntarily by Indemnitee and not by
way of defense, except (i) with respect to actions or proceedings brought
to establish or enforce a right to indemnification under this Agreement or any
other agreement or insurance policy or under the Company’s Certificate or Bylaws
now or hereafter in effect relating to Claims for Indemnifiable Events,
(ii) in specific cases if the Board of Directors has approved the
initiation or bringing of such Claim, or (iii) as otherwise required under
Section 145 of the DGCL, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be.
(b) Claims under
Section 16(b). To indemnify Indemnitee for Expenses and
the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Exchange Act or any similar
successor statute.
(c) Unlawful
Indemnification. To indemnify Indemnitee if a final decision
by a court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
(d) Claims Under Section 145 of the
DGCL. To indemnify Indemnitee if (i) Indemnitee did not act in
good faith or in a manner reasonably believed by Indemnitee to be in or not
opposed to the best interest of the Company, or (ii) with respect to any
criminal action or proceeding, Indemnitee had reasonable cause to believe
Indemnitee’s conduct was unlawful, or (iii) Indemnitee shall have been adjudged
to be liable to the Company, unless and only to the extent that the court in
which such action was brought shall permit indemnification as provided in
Section 145(b) of the DGCL.
10. Period of
Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against Indemnitee,
Indemnitee’s estate, spouse, heirs, executors or personal or legal
representatives after the expiration of five (5) years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such five (5) year period; provided, however, that if any
shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.
11. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
12. Binding Effect; Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns (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). The Company shall require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, 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. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as a director, officer, employee, agent,
controlling person, stockholder or fiduciary (as applicable) of the
Company or of any other enterprise at the Company’s request.
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13. Attorneys’ Fees. In
the event that any action is instituted by Indemnitee under this Agreement or
under any liability insurance policies maintained by the Company to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be
paid all Expenses incurred by Indemnitee with respect to such action, regardless
of whether Indemnitee is ultimately successful in such action, and shall be
entitled to the advancement of Expenses with respect to such action, unless as a
part of such action a court of competent jurisdiction over such action
determines that each of the material assertions made by Indemnitee as a basis
for such action were not made in good faith or were frivolous. In the
event of an action instituted by or in the name of the Company under this
Agreement to enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all Expenses incurred by Indemnitee in defense of
such action (including costs and expenses incurred with respect to Indemnitee’s
counterclaims and cross-claims made in such action), and shall be entitled to
the advancement of Expenses with respect to such action.
14. Notice. All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed duly given (i) if delivered by hand and
signed for by the party addressed, on the date of such delivery, or (ii) if
mailed by domestic certified or registered mail with postage prepaid, on the
fifth business day after the date postmarked. Addresses for notice to
either party are as shown on the signature page of this Agreement, or as
subsequently modified by written notice.
15. Consent to
Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Courts of
Delaware.
16. Severability. The
provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law. Furthermore, to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
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17. Choice of Law. This
Agreement shall be governed by and its provisions construed and enforced in
accordance with the laws of the State of Delaware as applied to contracts
between Delaware residents entered into and to be performed entirely within the
State of Delaware.
18. Subrogation. In the
event of 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 documents required and shall do all acts that may be necessary to
secure such rights and to enable the Company effectively to bring suit to
enforce such rights.
19. Amendment and
Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by both the parties hereto. Notice of same shall be provided to all
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed to be or shall constitute a waiver of any other provisions hereof
(whether or not similar), nor shall such waiver constitute a continuing
waiver.
20. Integration and Entire
Agreement. This Agreement sets forth the entire understanding
between the parties hereto and supersedes and merges all previous written and
oral negotiations, commitments, understandings and agreements relating to the
subject matter hereof between the parties hereto.
21. No Construction as Employment
Agreement. Nothing contained in this Agreement shall be
construed as giving Indemnitee any right to be retained in the employ of the
Company or any of its subsidiaries or affiliated entities.
22. Corporate
Authority. The Company represents and warrants that it has all
necessary corporate authority to enter into this Agreement, including without
limitation the approval of the Board of Directors of the Company.
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In
Witness Whereof, the parties hereto have executed this Indemnification Agreement
as of the date first above written.
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COMPANY:
ICO
GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED
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By:
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| Xxxxxxx X. Xxxxxxx | |||
| Acting Chief Executive Officer | |||
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00000
Xxxxx Xxxxxxx Xxxxx,
Xxxxx
0000
Xxxxxx,
XX 00000
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| INDEMNITEE: | |||
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By:
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Address:
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[Signature
Page to Indemnification Agreement]
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