NITROSECURITY, INC. Indemnification Agreement
Exhibit
10.26
This Indemnification Agreement (this “Agreement”) is made as of the [ ] day of
[ ], 2007, by and between NitroSecurity, Inc., a Delaware corporation (the
“Corporation), and [ ] (the “Indemnitee”), a director or officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as directors and officers
the most capable persons available, and
WHEREAS, the increase in corporate litigation subjects directors and officers to expensive
litigation risks, and
WHEREAS, it is now and has always been the policy of the Corporation to indemnify its
directors and officers, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to serve, as a director
or officer of the Corporation.
NOW THEREFORE, the Corporation and the Indemnitee do hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) The term “Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternative dispute resolution proceeding, administrative hearing or other proceeding,
whether brought by or in the right of the Corporation or otherwise and whether of a civil,
criminal, administrative or investigative nature, and any appeal therefrom.
(b) The term “Corporate Status” shall mean the status of a person who is or was, or has agreed
to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve,
at the request of the Corporation, as a director, officer, fiduciary, partner, trustee, member,
employee or agent of, or in a similar capacity with, another corporation, partnership, joint
venture, trust, limited liability company or other enterprise.
(c) The term “Expenses” shall include, without limitation, attorneys’ fees, retainers, court
costs, transcript costs, fees and expenses of experts, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service fees and other disbursements or
expenses of the types customarily incurred in connection with investigations, judicial or
administrative proceedings or appeals, but shall not include the amount of judgments, fines or
penalties against Indemnitee or amounts paid in settlement in connection with such matters.
(d) The term “Change in Control” shall mean the occurrence of any one of the following:
(i) individuals who, on the date of this Agreement, constitute the Board (the “Incumbent
Directors”) cease for any reason to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date of this Agreement whose election or nomination
for election was approved by a vote of at least a majority of the Directors then on the Board
(either by a specific vote or by approval of the proxy statement of the Corporation in which such
person is named as a nominee for director, without written objection to such nomination) shall be
an Incumbent Director; provided, however, that no individual initially elected or nominated as a
director of the Corporation as a result of an actual or threatened election contest with respect to
directors or as a result of any other actual or threatened solicitation of proxies by or on behalf
of any person other than the Board shall be deemed to be an Incumbent Director;
(ii) any “person” (as such term is defined in the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or
becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 50% or more of the combined voting power
of the Corporation’s then outstanding securities eligible to vote for the election of the Board
(the “Corporation Voting Securities”); provided, however, that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control by virtue of any of the following
acquisitions: (A) by the Corporation or any subsidiary, (B) by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any subsidiary, (C) by any underwriter
temporarily holding securities pursuant to an offering of such securities, (D) pursuant to a
Non-Qualifying Transaction, as defined in paragraph (iii), or (E) by any person of Voting
Securities from the Corporation, if a majority of the Incumbent Board approves in advance the
acquisition of beneficial ownership of 50% or more of Corporation Voting Securities by such person;
(iii) the consummation of a merger, consolidation, statutory share exchange, reorganization or
similar form of corporate transaction involving the Corporation or any of its subsidiaries that
requires the approval of the Corporation’s stockholders, whether for such transaction or the
issuance of securities in the transaction (a “Business Combination”), unless immediately following
such Business Combination: (A) more than 50% of the total voting power of (x) the corporation
resulting from such Business Combination (the “Surviving Corporation”), or (y) if applicable, the
ultimate parent corporation that directly or indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors of the Surviving Corporation (the “Parent
Corporation”), is represented by Corporation Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, is represented by shares into which such
Corporation Voting Securities were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same proportion as the voting power
of such Corporation Voting Securities among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit plan (or related trust) sponsored or
maintained by the Surviving Corporation or the Parent Corporation), is or becomes the beneficial
owner, directly or indirectly, of 35% or more of the total voting power of the outstanding voting
securities eligible to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least half of the members of the board of
directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business
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Combination were Incumbent Directors at the time of the Board’s approval of the execution of
the initial agreement providing for such Business Combination (any Business Combination which
satisfies all of the criteria specified in (A), (B) and (C) above shall be deemed to be a
“Non-Qualifying Transaction”);
(iv) the stockholders of the Corporation approve a plan of complete liquidation or dissolution
of the Corporation;
(v) the consummation of a sale of all or substantially all of the Corporation’s assets; or
(vi) the occurrence of any other event that the Board determines by a duly approved resolution
constitutes a Change in Control.
(e) The term “Independent Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither currently is, nor in the past five years has
been, retained to represent: (i) the Corporation or the Indemnitee in any matter material to
either such party 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 Corporation or the Indemnitee in an
action to determine the Indemnitee’s rights under this Agreement.
(f) References to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Corporation” shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan, its participants,
or beneficiaries; and a person who acted in good faith and in a manner such person reasonably
believed to be in the interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as
referred to in this Agreement.
2. Indemnity of Indemnitee. Subject to Sections 5, 6 and 8, the Corporation shall
indemnify the Indemnitee in connection with any Proceeding as to which the Indemnitee is, was or is
threatened to be made a party (or is otherwise involved) by reason of the Indemnitee’s Corporate
Status, to the fullest extent permitted by law (as such may be amended from time to time),
notwithstanding that such indemnification is not specifically authorized by the Corporation’s
Certificate of Incorporation or By-Laws. In furtherance of the foregoing and without limiting the
generality thereof:
(a) Indemnification in Third-Party Proceedings. The Corporation shall indemnify the
Indemnitee in accordance with the provisions of this Section 2(a) if the Indemnitee was or is a
party to or threatened to be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a judgment in its favor or a Proceeding
subject to an exception for indemnification identified in Section 5 below) by reason of the
Indemnitee’s Corporate Status or by reason of any action alleged to have been
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taken or omitted in connection therewith, against all Expenses, judgments, fines, penalties
and amounts paid in settlement actually and reasonably incurred by or on behalf of the Indemnitee
in connection with such Proceeding, if the Indemnitee acted in good faith and in a manner which the
Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation
and, with respect to any criminal Proceeding, had no reasonable cause to believe that his or her
conduct was unlawful.
(b) Indemnification in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify the Indemnitee in accordance with the provisions of this Section 2(b)
if the Indemnitee was or is a party to or threatened to be made a party to or otherwise involved in
any Proceeding by or in the right of the Corporation to procure a judgment in its favor by reason
of the Indemnitee’s Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses and, to the extent permitted by law, amounts
paid in settlement actually and reasonably incurred by or on behalf of the Indemnitee in connection
with such Proceeding, if the Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Corporation, except
that, if applicable law so requires, no indemnification shall be made under this Section 2(b) in
respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged to be
liable to the Corporation, unless, and only to the extent, that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of such liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as the Court of
Chancery or such other court shall deem proper.
3. Indemnification of Expenses of Successful Indemnitee. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been successful, on the merits
or otherwise, in defense of any Proceeding or in defense of any claim, issue or matter therein
(other than a Proceeding subject to an exception for indemnification identified in Section 5), the
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by or on
behalf of the Indemnitee in connection therewith.
4. Indemnification for Expenses of a Witness. To the extent that the Indemnitee is,
by reason of the Indemnitee’s Corporate Status, a witness in any Proceeding to which the Indemnitee
is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by or on behalf of the Indemnitee in connection therewith.
5. Exceptions to Right of Indemnification. Notwithstanding anything to the contrary
to this Agreement, and except as set forth in Section 9,
(a) the Corporation shall not indemnify the Indemnitee under this Agreement in connection with
a Proceeding (or part thereof) initiated by the Indemnitee unless (i) the initiation thereof was
approved by the Board of Directors of the Corporation or (ii) the Proceeding was commenced
following a Change in Control; and
(b) the Corporation shall not indemnify the Indemnitee to the extent the Indemnitee is
reimbursed from the proceeds of insurance, and in the event the Corporation makes any
indemnification payments to the Indemnitee and the Indemnitee is actually
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reimbursed from the proceeds of insurance, the Indemnitee shall promptly refund such
indemnification payments to the Corporation to the extent of such insurance reimbursement. Nothing
herein shall obligate the Indemnitee to procure any insurance as a condition to indemnification
and/or advancement of Expenses under this Agreement.
6. Notification and Defense of Claim.
(a) As a condition precedent to the Indemnitee’s right to be indemnified, the Indemnitee must
notify the Corporation in writing as soon as practicable of any Proceeding for which indemnity will
or could be sought, except that no delay or failure on the part of the Indemnitee in so notifying
the Corporation shall excuse the Corporation’s obligations to indemnify and advance Expenses
hereunder, except to the extent of any damage or liability caused by or arising out of such delay
or failure. With respect to any Proceeding of which the Corporation is so notified, the
Corporation will be entitled to participate therein at its own expense and/or to assume the defense
thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee. After
written notice from the Corporation to the Indemnitee of its election so to assume such defense,
the Corporation shall not be liable to the Indemnitee for any attorneys’ fees or costs or other
expenses subsequently incurred by the Indemnitee in connection with such Proceeding, other than as
provided below in this Section 6. The Indemnitee shall have the right to employ his or her own
counsel in connection with such Proceeding, but the fees and costs of such counsel incurred after
written notice from the Corporation of its assumption of the defense thereof (other than for
reasonable attorneys’ fees and costs incurred in transitioning the representation to the
Corporation’s counsel) shall be at the expense of the Indemnitee, unless (i) the employment of
counsel by the Indemnitee has been authorized by the Corporation, (ii) counsel to the Indemnitee
shall have reasonably determined that there is or may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee, or between any other person for whom
the Corporation has assumed the defense and the Indemnitee, in the conduct of the defense of such
Proceeding or (iii) the Corporation shall not in fact have employed counsel to assume the defense
of such Proceeding, in each of which cases the fees and costs of counsel for the Indemnitee shall
be at the expense of the Corporation, except as otherwise expressly provided by this Agreement, and
provided that Indemnitee’s counsel shall cooperate reasonably with the Corporation’s counsel to
minimize the cost of defending claims against the Corporation and the Indemnitee. The Corporation
shall not be entitled, without the consent of the Indemnitee, to assume the defense of any claim
brought by or in the right of the Corporation or as to which counsel for the Indemnitee shall have
reasonably made the determination provided for in clause (ii) above.
(b) The Corporation shall not be required to indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of any Proceeding effected without its written consent. The
Corporation shall not settle any Proceeding in any manner that would impose any penalty or
limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Corporation nor
the Indemnitee will unreasonably withhold or delay their consent to any proposed settlement.
7. Advancement of Expenses. Subject to the provisions of Section 8, in the event that
(a) the Corporation does not assume the defense pursuant to Section 6 of any Proceeding of which
the Corporation receives notice under this Agreement or (b) the Corporation assumes such
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defense but Indemnitee is, pursuant to Section 6, entitled to have the fees and costs of
Indemnitee’s own counsel paid for by the Corporation, any Expenses actually and reasonably incurred
by or on behalf of the Indemnitee in defending such Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding; provided, however, that the payment of
such Expenses incurred by or on behalf of the Indemnitee in advance of the final disposition of
such Proceeding shall be made only upon receipt by the Corporation of an undertaking by or on
behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized
in this Agreement. Such undertaking shall be accepted without reference to the financial ability
of the Indemnitee to make repayment. Any advances and undertakings to repay pursuant to this
Section 7 shall be unsecured and interest-free.
8. Procedures.
(a) Unless waived in writing by the Corporation, in order to obtain indemnification or
advancement of Expenses pursuant to this Agreement, the Indemnitee shall submit to the Corporation
a written request, including in such request such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification or advancement of Expenses. Any such indemnification or
advancement of Expenses shall be made promptly, and in any event within (i) in the case of
advancement of Expenses under Section 7, 30 calendar days after receipt by the Corporation of the
written request of the Indemnitee, or (ii) in the case of all other indemnification, 60 calendar
days after receipt by the Corporation of the written request of the Indemnitee, subject to the
provisions of Sections 8(b) and (c) below.
(b) With respect to requests for indemnification under Section 2, indemnification shall be
made unless the Corporation determines that Indemnitee has not met the applicable standard of
conduct set forth in Section 2. Any determination as to whether Indemnitee has met the applicable
standard of conduct set forth in Section 2, and any determination that advanced Expenses must be
repaid to the Corporation, shall be made, in the discretion of the Board of Directors of the
Corporation, (1) by a majority vote of the directors of the Corporation consisting of persons who
are not at that time parties to the Proceeding (“disinterested directors”), whether or not a
quorum, (2) by a committee of disinterested directors designated by a majority vote of
disinterested directors, whether or not a quorum, (3) if there are no disinterested directors, or
if the disinterested directors so direct, by Independent Counsel in a written opinion to the Board,
or (4) by the stockholders of the Corporation. Any such determination with respect to requests
under Section 2 shall be made within the 60-day period referred to in clause (ii) of Section 8(a)
(unless extended by mutual agreement by the Corporation and Indemnitee). For the purpose of the
foregoing determination with respect to requests under Section 2 or repayment of advanced Expenses,
the Indemnitee shall be entitled to a presumption that he or she has met the applicable standard of
conduct set forth in Section 2.
(c) Notwithstanding anything to the contrary set forth in this Agreement, if a request for
indemnification is made after a Change in Control, at the election of the Indemnitee made in
writing to the Corporation, any determination required to be made pursuant to Section 8(b) above as
to whether the Indemnitee has met the applicable standard of conduct or is required to repay
advanced Expenses shall be made by Independent Counsel selected as provided in this
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Section 8(c). The Independent Counsel shall be selected by the Indemnitee, unless the
Indemnitee shall request that such selection be made by the Board of Directors of the Corporation.
The party making the determination shall give written notice to the other party advising it of the
identity of the Independent Counsel so selected. The party receiving such notice may, within seven
days after such written notice of selection shall have been given, deliver to the other party a
written objection to such selection. 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 1, 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, the Independent Counsel so selected may not serve as
Independent Counsel unless and until a court has determined that such objection is not sustainable.
If, within 20 days after submission by the Indemnitee of a written request for indemnification, no
Independent Counsel shall have been selected or if selected, shall have been objected to, in
accordance with this paragraph, either the Corporation or the 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 Corporation or the Indemnitee to the other’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. The person with respect to whom an
objection is favorably resolved or the person so appointed shall act as Independent Counsel. The
Corporation shall pay the reasonable fees and expenses of Independent Counsel incurred in
connection with its acting in such capacity. The Corporation shall pay any and all reasonable and
necessary fees and expenses incident to the procedures of this paragraph, regardless of the manner
in which such Independent Counsel was selected or appointed.
(d) The termination of any Proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
Indemnitee did not act in good faith and in a manner that the Indemnitee reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal
Proceeding, had reasonable cause to believe that his or her conduct was unlawful.
(e) The Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to the 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
the Indemnitee and reasonably necessary to such determination. Any Expenses actually and
reasonably incurred by the Indemnitee in so cooperating shall be borne by the Corporation
(irrespective of the determination as to the Indemnitee’s entitlement to indemnification) and the
Corporation hereby indemnifies the Indemnitee therefrom.
9. Remedies. The right to indemnification or advancement of Expenses as provided by
this Agreement shall be enforceable by the Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no disposition thereof is made within
the applicable period referred to in Section 8. Unless otherwise required by law, the burden of
proving that indemnification is not appropriate shall be on the Corporation. Neither the failure
of the Corporation to have made a determination prior to the commencement of such
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action that indemnification is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Corporation that the Indemnitee
has not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct. The Corporation
will also indemnify the Indemnitee’s Expenses actually and reasonably incurred in connection with
successfully establishing the Indemnitee’s right to indemnification, in whole or in part, in any
such Proceeding.
10. Partial Indemnification. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for some or a portion of the Expenses,
judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by or on
behalf of the Indemnitee in connection with any Proceeding but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, fines, penalties or amounts paid in settlement to which the Indemnitee is
entitled.
11. Subrogation. In the event of any payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and take all reasonable action necessary to
secure such rights (Expenses for which shall be borne by the Corporation), including execution of
such documents as are necessary to enable the Corporation to bring suit to enforce such rights.
12. Term of Agreement. This Agreement shall continue until and terminate upon the
later of (a) six years after the date that the Indemnitee shall have ceased to serve as a director
or officer of the Corporation or, at the request of the Corporation, as a director, officer,
partner, trustee, member, employee or agent of another corporation, partnership, joint venture,
trust, limited liability company or other enterprise or (b) the final termination of all
Proceedings pending on the date set forth in clause (a) in respect of which the Indemnitee is
granted rights of indemnification or advancement of Expenses hereunder and of any proceeding
commenced by the Indemnitee pursuant to Section 9 of this Agreement relating thereto.
13. Indemnification Hereunder Not Exclusive. The indemnification and advancement of
Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Corporation’s Certificate of Incorporation or By-Laws, any
other agreement, any vote of stockholders or disinterested directors, the General Corporation Law
of Delaware, any other law (common or statutory), or otherwise, both as to action in the
Indemnitee’s official capacity and as to action in another capacity while holding office for the
Corporation. Nothing contained in this Agreement shall be deemed to prohibit the Corporation from
purchasing and maintaining insurance, at its expense, to protect itself or the Indemnitee against
any expense, liability or loss incurred by it or the Indemnitee in any such capacity, or arising
out of the Indemnitee’s status as such, whether or not the Indemnitee would be indemnified against
such expense, liability or loss under this Agreement. If the Corporation elects to maintain such
insurance, the Corporation shall use commercially reasonably efforts to include coverage for the
Indemnitee against any expense, liability or loss incurred by the Indemnitee in any such capacity,
or arising out of the Indemnitee’s status as such.
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14. No Special Rights. Nothing herein shall confer upon the Indemnitee any right to
continue to serve as an officer or director of the Corporation for any period of time or at any
particular rate of compensation.
15. Savings Clause. If this Agreement or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify the Indemnitee as to Expenses, judgments, fines, penalties and amounts paid in settlement
with respect to any Proceeding to the fullest extent permitted by any applicable portion of this
Agreement that shall not have been invalidated and to the fullest extent permitted by applicable
law.
16. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall constitute the original.
17. Successors and Assigns. This Agreement shall be binding upon the Corporation and
its successors and assigns and shall inure to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
18. 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.
19. Modification and Waiver. This Agreement may be amended from time to time to
reflect changes in Delaware law or for other reasons. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof nor shall any such waiver constitute a continuing waiver.
20. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been given (i) when delivered by hand or (ii) if mailed
by certified or registered mail with postage prepaid, on the third day after the date on which it
is so mailed:
| (a) | if to the Indemnitee, to: | [ ] | ||||
| (b) | if to the Corporation, to: | NitroSecurity, Inc. | ||||
| 000 Xxxxxxxx Xxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxxxxxxx, XX 00000 |
or to such other address as may have been furnished to the Indemnitee by the Corporation or to the
Corporation by the Indemnitee, as the case may be.
21. Applicable Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware. The Indemnitee may elect to have the right
to indemnification or reimbursement or advancement of Expenses interpreted on
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the basis of the applicable law in effect at the time of the occurrence of the event or events
giving rise to the applicable Proceeding, to the extent permitted by law, or on the basis of the
applicable law in effect at the time such indemnification or reimbursement or advancement of
Expenses is sought. Such election shall be made, by a notice in writing to the Corporation, at the
time indemnification or reimbursement or advancement of Expenses is sought; provided,
however, that if no such notice is given, and if the General Corporation Law of Delaware is
amended, or other Delaware law is enacted, to permit further indemnification of the directors and
officers, then the Indemnitee shall be indemnified to the fullest extent permitted under the
General Corporation Law, as so amended, or by such other Delaware law, as so enacted.
22. Enforcement. The Corporation expressly confirms and agrees that it has entered
into this Agreement in order to induce the Indemnitee to continue to serve as an officer or
director of the Corporation, and acknowledges that the Indemnitee is relying upon this Agreement in
continuing in such capacity.
23. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supercedes all prior agreements,
whether oral or written, by any officer, employee or representative of any party hereto in respect
of the subject matter contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and cancelled. For avoidance of doubt,
the parties confirm that the foregoing does not apply to or limit the Indemnitee’s rights under
Delaware law or the Corporation’s Certificate of Incorporation or By-Laws.
24. Consent to Suit. In the case of any dispute under or in connection with this
Agreement, the parties may only bring suit against each other in the Court of Chancery of the State
of Delaware. The parties hereby consent to the exclusive jurisdiction and venue of the courts of
the State of Delaware, and hereby waive any claim that they may have at any time as to forum non
conveniens with respect to such venue. Any judgment entered against either of the parties in any
proceeding hereunder may be entered and enforced by any court of competent jurisdiction.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
| NITROSECURITY, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INDEMNITEE: | ||||||
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