INDEMNITY AGREEMENT
INDEMNITY
AGREEMENT
THIS
AGREEMENT made as of the 1st
day of
March, 2007.
BETWEEN:
Veridicom
International, Inc.,
a
corporation incorporated under the State of Delaware (the "Indemnitor")
AND:
Xxxxxx
X. Xxxxxxx, Xx., Chief
Executive Officer and member of the Board of Directors of Indemnitor (the
"Indemnitee")
WHEREAS:
A. The
Indemnitee has been requested to accept and hold a position as an officer and
director of the Indemnitor; and
B. In
consideration of $1.00 and other good and valuable consideration received,
the
Indemnitor has agreed to indemnify the Indemnitee for all liability, losses,
damages, costs, charges, expenses, fines and penalties which have been or may
be
sustained by the Indemnitee as a result of his acting as an officer of the
Indemnitor.
IN
WITNESS THEREFORE that
in
consideration of the premises and subject to the conditions hereunder and in
consideration of the sum of ONE DOLLAR ($1.00) now paid by the Indemnitee to
the
Indemnitor and other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged by the Indemnitor), the parties
agree as follows:
1. General
Indemnity.
Subject
to section 4 hereof, the Indemnitor agrees to indemnify and save the Indemnitee
harmless from and against:
(a) any
and
all costs, charges, expenses, fees, damages or liabilities, regardless of when
they arose and howsoever arising and whether arising in law or in equity or
under statute, regulation or governmental ordinance of any jurisdiction, common
law or otherwise (including legal or other professional fees), and whether
incurred alone or jointly with others, which the Indemnitee may suffer, sustain,
incur or be required to pay arising out of, in connection with or incidental
to
any action, suit, demand, proceeding, investigation or claim which may be
brought, commenced, made, prosecuted or threatened against the Indemnitee (any
of the same hereinafter being referred to as a "Claim")
for or
in respect of any act, deed, matter or thing done, made, permitted or in respect
of any omission to do, make or permit any act, deed, matter or thing whatsoever
required or desirable to do, make or permit, by the Indemnitee arising out
of,
in connection with or incidental to the management, operations, activities
or
affairs of the Indemnitor or the exercise by the Indemnitee of his powers or
the
performance of his duties as an officer of the Indemnitor, whether sustained
or
incurred by reason of his negligence, default, breach of duty, failure to
exercise due diligence or otherwise in relation to the Indemnitor;
(b) any
and
all costs, charges, expenses, fees, damages or liabilities which the Indemnitee
may suffer, sustain or incur or be required to pay in connection with
investigating, initiating, defending, preparing for, providing evidence in,
instructing and receiving the advice of his own or other counsel, or any amount
paid to satisfy any judgment made, fine imposed, damages or costs or any amount
paid or liability incurred by the Indemnitee to settle any Claim, or any amount
of tax assessed against the Indemnitee in respect of any indemnity under this
Agreement;
(c) that
to
the extent not satisfied, paid or reimbursed by the Indemnitor, the Indemnitor
shall pay or reimburse the Indemnitee for any and all costs, charges, expenses,
fees or liabilities the Indemnitee sustains, incurs or is required to pay in
or
in relation to the management, operations, activities or affairs of the
Indemnitor in the Indemnitee's capacity as an officer of the Indemnitor, whether
or not incurred in connection with any Claim.
2. Specific
Indemnity for Statutory Obligations.
Without
limiting the generality of the provisions of section 1 hereof and subject to
section 4 hereof, the Indemnitor agrees to indemnify and save the Indemnitee
harmless from and against any and all charges, costs, expenses, penalties,
assessments and liabilities arising by operation of statute and incurred by
the
Indemnitee in relation to the management, operations, activities or affairs
of
the Indemnitor in the Indemnitee's capacity as an officer of the Indemnitor,
including but not limited to all statutory obligations to employees, suppliers,
contractors, subcontractors, repairers and the like and any government or any
agency or division of any government, whether federal, provincial, state,
regional or municipal.
3. Exclusion
of Liability.
Subject
to section 4 hereof, the Indemnitee, in his capacity as an officer of the
Indemnitor, shall not be liable for:
(a) any
act,
default, omission, or neglect of any other consultant, employee, director of
the
Indemnitor;
(b) any
act,
default, omission, or neglect of any officer or director of the Indemnitor
prior
to the appointment of Indemnitee;
(c) any
loss
or damages incurred by the Indemnitor owing to any receipt or act of any
consultant, employee, director of the Indemnitor in which the Indemnitee has
concurred or joined in for conformity;
(d) any
loss
or damages incurred by the Indemnitor through the insufficiency or deficiency
of
title to any property acquired by order of the board of directors or the
officers of the Indemnitor for or on behalf of the Indemnitor;
(e) the
insufficiency or deficiency of any security in or upon which any money of the
Indemnitor shall be invested or loaned;
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(f) any
loss
or damage arising from the bankruptcy, insolvency or tortious act of any person
with whom any money, security or effect of the Indemnitor shall be
deposited;
(g) any
loss,
conversion, misapplication or misappropriation of or any damage resulting from
any dealings with any money, security or other asset belonging to the
Indemnitor;
(h) any
loss
or damage occasioned by any error of judgment or oversight on the part of the
Indemnitee; or
(i) any
other
loss, damage or misfortune whatever.
4. Limitation
of Indemnity and Exclusion from Liability.
The
indemnity provided for in sections 1 and 2 hereof is subject to the Delaware
Revised Statutes, and will be effective unless proved that:
(a) his
failure to act constituted a breach of his fiduciary duties as officer,
and
(b) his
breach of those duties involved intentional misconduct, fraud or a knowing
violation of law.
The
above
is subject to a final judgment imposed by a court of law or if the Indemnitee
admitted to the above allegations.
5. Court
Applications.
The
Indemnitor represents and warrants that it will in a timely manner take all
necessary steps, including without limitation any and all necessary court
applications, to discharge its obligations under this Agreement.
6. Extensions,
Modifications.
Except
as otherwise provided herein, this Agreement is absolute and unconditional
and
the obligations of the Indemnitor shall not be affected, discharged, impaired,
mitigated or released by any extension of time, indulgence or modification
which
the Indemnitee may extend or make with any person making any Claim or demand
against the Indemnitee in connection with his duty as an officer of the
Indemnitor or in respect of any liability incurred by him as an officer of
the
Indemnitor.
7. Other
Rights and Remedies.
The
indemnification provided by this Agreement shall not be deemed to derogate
from
or exclude any other rights to which the Indemnitee may be entitled under any
provision of any statute or otherwise at law.
8. Insolvency.
The
liability of the Indemnitor under this Agreement shall not be affected,
discharged, impaired, mitigated or released by reason of the discharge or
release of the Indemnitee in any bankruptcy, insolvency, receivership or other
proceedings of creditors.
9. Multiple
Proceedings.
No
action or proceeding brought or instituted under this Agreement and no recovery
pursuant thereto shall be a bar or defence to any further action or proceeding
which may be brought under this Agreement.
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10. Modification.
No
modification of this Agreement shall be valid unless the same shall be in
writing and signed by the Indemnitor and the Indemnitee, provided however that
if the Indemnitee is requested to or agrees to act as an officer of any
subsidiary of the Indemnitor, the indemnity provided for herein shall
automatically be deemed to apply to the Indemnitee acting as such, mutatis
mutandis.
11. Procedure
For Claims.
(1) In
the
event the Indemnitee is named as a party in any action, claim, suit, proceeding
or investigation upon which the Indemnitee intends to base a claim for
indemnification hereunder, the Indemnitee shall give the Indemnitor prompt
written notice of such action, claim, suit, proceeding or investigation
(provided, however, that failure of the Indemnitee to provide such notice shall
not relieve the Indemnitor of any liability to the Indemnitee the Indemnitor
may
have under this Agreement except to the extent that the Indemnitor is materially
prejudiced by such failure).
(2) The
Indemnitor shall participate in and, assume the defence of any such action,
including for certainty any derivative action, claim, suit, proceeding or
investigation all at the Indemnitor's expense provided, however, that counsel
retained by the Indemnitor shall be satisfactory to the Indemnitee in the
exercise of his reasonable judgement. Notwithstanding the Indemnitor's
assumption of the defense of such action, claim, suit, proceeding or
investigation, the Indemnitee shall have the right to employ separate counsel
and to participate in, but not control, the defense of such action, claim,
suit,
proceeding or investigation, and the Indemnitor shall bear the reasonable fees,
costs and expenses of such separate counsel as such fees, costs and expenses
are
incurred (provided that with respect to any single action, claim, suit,
proceeding or investigation, the Indemnitor shall not be required to bear the
fees, costs and expenses of more than one such counsel in any single
jurisdiction) if (a) the use of counsel chosen by the Indemnitor to represent
the Indemnitee would present such counsel with a conflict of interest; (b)
the
defendants, respondents or other parties in any such action, claim, suit,
proceeding or investigation include both the Indemnitee on the one hand and
the
Indemnitor on the other hand, and the Indemnitee has reasonably concluded that
representation of both parties by the same counsel would be inappropriate due
to
actual or potential differing interests between them (in which case the
Indemnitor shall not have the right to direct the defense of such action, claim,
suit, proceeding or investigation on behalf of the Indemnitee); (c) the
Indemnitor shall not have employed counsel satisfactory to the Indemnitee in
the
exercise of the Indemnitee's reasonable judgment to represent him, within a
reasonable time after notice of the institution of such action, proceeding
or
investigation; or (d) the Indemnitor authorizes the Indemnitee to employ
separate counsel at the Indemnitor's expense.
(3) The
Indemnitee shall cooperate with the Indemnitor in the Indemnitor's defense
by
providing such information and other assistance which the Indemnitor may
reasonably request in connection with such defense.
(4) The
Indemnitor shall not, without the Indemnitee's prior written consent, settle,
compromise, consent to the entry of any judgment in or otherwise seek to
terminate any action, claim, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnitee is a
party thereto) unless such settlement, compromise, consent or termination
includes a release of the Indemnitee from any liabilities arising out of such
action, claim, suit or proceeding. The Indemnitee shall not, without the
Indemnitor's prior written consent, admit liability, settle, compromise, consent
to the entry of any judgment in or otherwise seek to terminate any action,
claim, suit, investigation or proceeding referred to in the preceding paragraph
and the Indemnitee shall not disclose the existence of this Agreement unless
required by law, subpoena, court order or upon the advice of
counsel.
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12. Resignation.
Nothing
in this Agreement shall prevent the Indemnitee from resigning as an officer
of
the Indemnitor or from exercising any rights he may have to terminate any
consulting, management or other agreement he may have with the
Indemnitor.
13. Termination.
The
obligations of the Indemnitor shall not terminate or be released upon the
Indemnitee ceasing to act as an officer of the Indemnitor at any time or times
and such obligations shall survive the termination or resignation of the
Indemnitee. The Indemnitor's obligations may be terminated or released only
by a
written instrument executed by the Indemnitee.
14. Tax
Gross Up.
The
amount of any indemnity payable to the Indemnitee will be computed in accordance
with the following formula:
A
=
B
-
D
(1
-
C)
where:
A
= the
amount of indemnity payable by the Indemnitor to the Indemnitee pursuant to
this
Agreement,
B
= the
amount of indemnity that would otherwise be payable by the Indemnitor to the
Indemnitee pursuant to this Agreement on the assumption that such amount is
computed without reference to any increased liability of the Indemnitee under
applicable income, payroll, value added or any other tax laws arising in
consequence of such payment,
C
= the
aggregate of the highest effective rates of all taxes (including all surtaxes)
under such tax laws applicable to the Indemnitee in respect of such payment,
after giving effect to any applicable bilateral tax convention or treaty,
and
D
= any
such
tax required by law to be paid by or for the account of the Indemnitee on or
with respect to the Grossed Up Amount, and which is deducted by the Indemnitor
from that amount and remitted to a lawful taxing authority for the account
of
the Indemnitee.
For
the
purposes of this section, "Grossed Up Amount" means:
B
(1
-
C)
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15. Advances.
In any
case in which the Indemnitee incurs or becomes liable to pay any amount in
respect of which he is entitled to be indemnified by the Indemnitor pursuant
to
the provisions of this Agreement, the Indemnitor shall advance such amount
to
the Indemnitee by way of loan forthwith upon written demand therefor by the
Indemnitee to the Indemnitor. Such notice shall be accompanied by a written
undertaking by the Indemnitee to repay the full amount of any funds so advanced
forthwith upon it being determined by the court on application for such
approval, that the Indemnitee is not entitled to indemnification in respect
thereof. In that event any amount so advanced shall be repaid forthwith
following such determination and shall bear interest at 2% above the prime
rate
charged by the Indemnitor's bankers to its preferred commercial customers from
time to time during the period from the date of advance to the date of
repayment.
16. Notices.
Any
notice to be given by one party to the other shall be sufficient if delivered
by
hand, deposited in any Post Office, registered, postage prepaid, or sent by
means of electronic transmission (in which case any message so transmitted
shall
be immediately confirmed in writing and mailed as provided above), addressed,
as
the case may be:
(a) To
the
Indemnitor:
Veridicom
International, Inc.
00
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxx Xxxxxx 00000
Facsimile:
____________
(b) To
the
Indemnitee:
Xxxxxx
X.
Xxxxxxx, Xx
00
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxx Xxxxxx 00000
Facsimile:
____________
or
at
such other address of which notice is given by the parties pursuant to the
provisions of this section. Such notice shall be deemed to have been received
when delivered, if delivered, and if mailed, on the fifth business day
(exclusive of Saturdays, Sundays and statutory holidays) after the date of
mailing. Any notice sent by means of electronic transmission shall be deemed
to
have been given and received on the day it is transmitted, provided that if
such
day is not a business day then the notice shall be deemed to have been given
and
received on the next business day following. In case of an interruption of
the
postal service, all notices or other communications shall be delivered or sent
by means of electronic transmission as provided above, except that it shall
not
be necessary to confirm in writing and mail any notice electronically
transmitted.
17. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the State of
Delaware and all disputes arising under this Agreement shall be referred to
and
the parties hereto irrevocably attorn to the jurisdiction of the courts of
the
State of Delaware.
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18. Other
Acts.
The
Indemnitor and the Indemnitee agree that they shall do all such further acts,
deeds or things and execute and deliver all such further documents, instruments
or certificates as may be necessary or advisable for the purpose of assuring
and
confirming unto the Indemnitee the rights hereby created or intended, and of
giving effect to and carrying out the intention or facilitating the performance
of the terms of this Agreement.
19. Interpretation.
Wherever the singular or masculine are used throughout this Agreement, the
same
shall be construed as meaning the plural or the feminine or body politic or
corporate and whenever the plural is used throughout this Agreement the same
shall be construed as meaning the singular, where the context or the parties
hereto so require, and the liabilities and obligations of the Indemnitor
hereunder shall be joint as well as several.
20. Invalid
Terms Severable.
If any
term, clause or provision of this Agreement shall be held invalid or contrary
to
law, the validity of any other term, clause or provision shall not be affected
and such invalid term, clause or provision shall be considered
severable.
21. Entire
Agreement.
This
Agreement shall supersede and replace any and all prior agreements between
the
parties hereto respecting the matters set forth herein, and shall constitute
the
entire agreement between the parties in respect of the matters set forth herein.
There are no representations, warranties, collateral agreements, or conditions
expect as set forth herein.
22. Binding
Effect.
All of
the agreements, conditions and terms of this Agreement shall extend to and
be
binding upon the Indemnitor and their heirs, executors, administrators and
other
legal representatives, successors and assigns and shall enure to the benefit
of
and may be enforced by the Indemnitee and his heirs, executors, administrators
and other legal representatives, successors and assigns.
23. Independent
Legal Advice.
The
Indemnitor acknowledges that it has been advised by the Indemnitee to obtain
independent legal advice with respect to entering into this Agreement, that
they
have obtained such independent legal advice or have expressly waived such
advice, and that they are entering into this Agreement with full knowledge
of
the contents hereof, of their own free will and with full capacity and authority
to do so.
24. Power
and Authority of Indemnitor.
The
Indemnitor represents and warrants to the Indemnitee that this Agreement when
duly and validly executed and delivered by the Indemnitor will constitute a
legal, valid and binding obligation of the Indemnitor enforceable against the
Indemnitor in accordance with the terms hereof and that the Indemnitor, if
a
corporation, is duly incorporated and organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, has the necessary
corporate power, capacity and authority to enter into this Agreement and perform
its obligations hereunder and that the execution and delivery of this Agreement
by the Indemnitor has been duly and properly authorized by all necessary
corporate action and that.
25. Counterparts.
This
Agreement may be signed in counterparts, in writing or by electronic facsimile
transmission or by other means of electronic communication capable of producing
a printed copy, each of which will be deemed to be an original and all such
counterparts together will constitute one and the same instrument and
notwithstanding the date of execution, will be deemed to be effective as of
the
date set forth above.
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IN
WITNESS WHEREOF the Indemnitor and the Indemnitee have hereunto set their hands
and seals as of the day and year first above written.
By
the
Indemnitor:
| Veridicom International, Inc. | |||
| Per: /s/ Xxxxxx X. Xxxxxxx, Xx | |||
|
Authorized Signatory |
|||
| /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
|
Xxxxxx X. Xxxxxxx, Xx. |
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