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EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
This Agreement is made as of the ___ day of November, 1997, by and
between InterVU, Inc., a Delaware Corporation ("the Company"), and the
undersigned Director [Officer] of the Company (the "Indemnitee"), with
reference to the following facts:
The Indemnitee is currently serving as a Director [Officer] of the
Company and the Company wishes the Indemnitee to continue in such capacity.
The Indemnitee is willing, under certain circumstances, to continue serving as
a Director [Officer] of the Company.
The Indemnitee has indicated that he does not regard the indemnities
available under the Company's By-Laws as adequate to protect him against the
risks associated with his service to the Company and has noted that the
Company's directors' and officers' liability insurance policy has numerous
exclusions and a deductible and thus does not adequately protect Indemnitee.
In this connection the Company and the Indemnitee now agree they should enter
into this Indemnification Agreement in order to provide greater protection to
Indemnitee against such risks of service to the Company.
Section 145 of the General Corporation Law of the State of Delaware,
under which Law the Company is organized, empowers corporations to indemnify a
person serving as a director, officer, employee or agent of the corporation and
a person who serves at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise, and said Section 145 and the By-Laws of the Company specify
that the indemnification set forth in said Section 145 and in the By-Laws,
respectively, shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise.
In order to induce the Indemnitee to continue to serve as a Director
[Officer] of the Company and in consideration of his continued service, the
Company hereby agrees to indemnify the Indemnitee as follows:
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1. Indemnity. The Company will indemnify the Indemnitee, his
executors, administrators or assigns, for any Expenses (as defined
below) which the Indemnitee is or becomes legally obligated to pay in
connection with any Proceeding. As used in this Agreement the term
"Proceeding" shall include any threatened, pending or completed claim,
action, suit or proceeding, whether brought by or in the right of the
Company or otherwise and whether of a civil, criminal, administrative
or investigative nature, in which the Indemnitee may be or may have
been involved as a party or otherwise, by reason of the fact that
Indemnitee is or was a director or officer of the Company, by reason
of any actual or alleged error or misstatement or misleading statement
made or suffered by the Indemnitee, by reason of any action taken by
him or of any inaction on his part while acting as such director or
officer, or by reason of the fact that he was serving at the request
of the Company as a director, trustee, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise; provided, that in each such case Indemnitee acted in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and, in the case of a
criminal proceeding, in addition had no reasonable cause to believe
that his conduct was unlawful. As used in this Agreement, the term
"other enterprise" shall include (without limitation) employee benefit
plans and administrative committees thereof, and the term "fines"
shall include (without limitations) any excise tax assessed with
respect to any employee benefit plan.
2. Expenses. As used in this Agreement, the term "Expenses"
shall include, without limitation, damages, judgments, fines,
penalties, settlements and costs, attorneys' fees and disbursements
and costs of attachment or similar bonds, investigations, and any
expenses of establishing a right to indemnification under this
Agreement.
3. Enforcement. If a claim or request under this Agreement
is not paid by the Company, or on its behalf, within thirty days after
a written claim or request has been received
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by the Company, the Indemnitee may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim or
request and if successful in whole or in part, the Indemnitee shall be
entitled to be paid also the Expenses of prosecuting such suit. The
Company shall have the right to recoup from the Indemnitee the amount
of any item or items of Expenses theretofore paid by the Company
pursuant to this Agreement, to the extent such Expenses are not
reasonable in nature or amounts; provided, however, that the Company
shall have the burden of proving such Expenses to be unreasonable.
The burden of proving that the Indemnitee is not entitled to
indemnification for any other reason shall be upon the Company.
4. 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 the Indemnitee, who shall
execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to
enforce such rights.
5. Exclusions. The Company shall not be liable under this
Agreement to pay any Expenses in connection with any claim made
against the Indemnitee:
(a) to the extent that payment is actually made
to the Indemnitee under a valid, enforceable and collectible
insurance policy;
(b) to the extent that the Indemnitee is
indemnified and actually paid otherwise than pursuant to
this Agreement;
(c) in connection with a judicial action by or in
the right of the Company, in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged to
be liable for negligence or misconduct in the performance of
his duty to the Company unless and only to the extent that any
court in which such action was brought shall determine upon
application that, despite the adjudication of liability but in
view of
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all the circumstances of the case, the Indemnitee is fairly
and reasonably entitled to indemnity for such expenses as such
court shall deem proper;
(d) if it is proved by final judgment in a court
of law or other final adjudication to have been based upon or
attributable to the Indemnitee's in fact having gained any
personal profit or advantage to which he was not legally
entitled;
(e) for a disgorgement of profits made from the
purchase and sale by the Indemnitee of securities pursuant to
Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any state
statutory law or common law;
(f) brought about or contributed to by the
dishonesty of the Indemnitee seeking payment hereunder;
however, notwithstanding the foregoing, the Indemnitee shall
be protected under this Agreement as to any claims upon which
suit may be brought against him by reason of any alleged
dishonesty on his part, unless a judgment or other final
adjudication thereof adverse to the Indemnitee shall establish
that he committed (i) acts of active and deliberate dishonesty,
(ii) with actual dishonest purpose and intent, (iii) which acts
were material to the cause of action so adjudicated; or
(g) for any judgment, fine or penalty which the
Company is prohibited by applicable law from paying as
indemnity or for any other reason.
6. Indemnification of Expenses of Successful Party.
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, including dismissal without prejudice, Indemnitee shall be
indemnified against any and all Expenses incurred in connection
therewith.
7. Partial Indemnification. If the Indemnitee is
entitled under any provision of this Agreement to indemnification by
the Company for some or a portion of Expenses, but not,
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however, for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses to which the
Indemnitee is entitled.
8. Advance of Expenses. Expenses incurred by the
Indemnitee in connection with any Proceeding, except the amount of any
settlement, shall be paid by the Company in advance upon request of
the Indemnitee that the Company pay such Expenses. The Indemnitee
hereby undertakes to repay to the Company the amount of any Expenses
theretofore paid by the Company to the extent that it is ultimately
determined that such Expenses were not reasonable or that the
Indemnitee is not entitled to indemnification.
9. Approval of Expenses. No Expenses for which
indemnity shall be sought under this Agreement, other than those in
respect of judgments and verdicts actually rendered, shall be incurred
without the prior consent of the Company, which consent shall not be
unreasonably withheld.
10. Notice of Claim. The Indemnitee, as a condition
precedent to his right to be indemnified under this Agreement, shall
give to the Company notice in writing as soon as practicable of any
claim made against him for which indemnity will or could be sought
under this Agreement. Notice to the Company shall be given at its
principal office and shall be directed to the Corporate Secretary (or
such other address as the Company shall designate in writing to the
Indemnitee); notice shall be deemed received if sent by prepaid mail
properly addressed, the date of such notice being the date postmarked.
In addition, the Indemnitee shall give the Company such information
and cooperation as it may reasonably require and as shall be within
the Indemnitee's power.
11. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute
one instrument.
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12. Indemnification Hereunder Not Exclusive. Nothing
herein shall be deemed to diminish or otherwise restrict the
Indemnitee's right to indemnification under any provision of the
Certificate of Incorporation or By-Laws of the Company and amendments
thereto or under law.
13. Governing Law. This Agreement shall be governed by
and construed in accordance with Delaware law.
14. Saving Clause. Wherever there is conflict between
any provision of this Agreement and any applicable present or future
statute, law or regulation contrary to which the Company and the
Indemnitee have no legal right to contract, the latter shall prevail,
but in such event the affected provisions of this Agreement shall be
curtailed and restricted only to the extent necessary to bring them
within applicable legal requirements.
15. Coverage. The provisions of this Agreement shall
apply with respect to the Indemnitee's service as a Director [Officer}
of the Company prior to the date of this Agreement and with respect to
all periods of such service after the date of this Agreement, even
though the Indemnitee may have ceased to be a Director [Officer] of
the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and signed as of the day and year first above written.
INTERVU INC.
By____________________________
Xxxxx X. Xxxxxx
Chief Executive Officer
______________________________
(Name of Director or Officer)
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