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Exhibit 10.10
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "AGREEMENT") dated July 13, 2000,
by and among Tomax Technologies, Inc., a Utah corporation (the "COMPANY") and
each indemnitee ("INDEMNITEE") executing this Agreement.
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The parties recognize the continued difficulty in obtaining liability
insurance for its directors, officers, employees, stockholders (as defined in
Section 10.7), controlling persons, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance. Furthermore, the parties further recognize the
substantial increase in corporate litigation in general, subjecting directors,
officers, employees, controlling persons, stockholders (as defined in Section
10.7), agents and fiduciaries to expensive litigation risks at the same time as
the availability and coverage of liability insurance has been severely limited.
Indemnitee does not regard the current protection available as adequate
under the present circumstances, and Indemnitee and other directors, officers,
employees, stockholders (as defined in Section 10.7), controlling persons,
agents and fiduciaries of the Company may not be willing to serve in such
capacities without additional protection. Moreover, the Company (i) desires to
attract and retain the involvement of highly qualified groups, such as
Indemnitee, to serve the Company and, in part, in order to induce each
Indemnitee to be involved with the Company and (ii) wishes to provide for the
indemnification and advancing of expenses to each Indemnitee to the maximum
extent permitted by law.
In view of the considerations set forth above, the Company desires that
each Indemnitee be indemnified by the Company as set forth herein.
NOW THEREFORE, the parties agree as follows:
1. INDEMNIFICATION
1.1 INDEMNIFICATION OF EXPENSES. The Company shall indemnify and
hold harmless the Indemnitee (including its respective directors, officers,
general partners, limited partners, members, managing members, employees, agents
and spouses) and each person who controls any of them or who may be liable
within the meaning of Section 15 of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), or Section 20 of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), to the fullest extent permitted by law if such
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
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that such
Indemnitee believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (a "CLAIM") by reason of (or arising in
part out of) any event or occurrence related to the fact that Indemnitee is or
was or may be deemed a director, officer, stockholder (as defined in Section
10.7), employee, controlling person, agent or fiduciary of the Company, or any
subsidiary of the Company, or is or was or may be deemed
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to be serving at the request of the Company as a director, officer, stockholder
(as defined in Section 10.7), employee, controlling person, agent or fiduciary
of another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action or inaction on the part of such Indemnitee while
serving in such capacity 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, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, which relate directly
or indirectly to the registration, purchase, sale or ownership by the Company of
any securities of the Company or to any fiduciary obligation owed with respect
thereto or as a result of any claim (a) made by any stockholder (as defined in
Section 10.7) of the Company against an 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-pro rata participation, in such round by
such stockholder (as defined in Section 10.7), (b) made by a third party against
an 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, (c) made by a third party against an
Indemnitee based (in whole or in part) on, or arising in any way out of, or
relating to conduct attributed to the Company or anyone alleged to be acting on
the Company's behalf, or (d) made by a third party against an Indemnitee based
(in whole or in part) on, or arising in any way out of, or relating to (i) the
Indemnitee being an investor in the Company, (ii) the Indemnitee's alleged
participation in the management or direction of the Company, (iii) the
Indemnitee's alleged participation in providing any assistance or advice to the
Company, or (iv) Indemnitee being a person described in Section 15 of Securities
Act or Section 20 of the Exchange Act (an individually an "INDEMNIFICATION
EVENT" and collectively the "INDEMNIFICATION EVENTS") against 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 an appeal), or preparing to defend, be
a witness in or participate in, any such action, suit, proceeding, alternative
dispute resolution mechanism, hearing, inquiry or investigation), judgments,
fines, penalties and amounts paid in settlement (if, and only if, such
settlement is approved in advance by the Company, which approval shall not be
unreasonably withheld) of such Claim 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 (collectively, "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 ten days after written
demand by the Indemnitee therefor is presented to the Company.
1.2 REVIEWING PARTY. Notwithstanding the foregoing, (a) the
obligations of the Company under Section 1.1 shall be subject to the condition
that it shall not have been finally determined that Indemnitee would not be
permitted to be indemnified under applicable law (initial determination shall be
made by the Reviewing Party as described in Section 10.5 in a written opinion,
in any case in which the Independent Legal Counsel referred to in Section 1.5
hereof is involved), and (b) and each Indemnitee acknowledges and agrees that
the obligation of the Company to make an advance payment of Expenses to
Indemnitee pursuant to Section 2.1 (an "EXPENSE ADVANCE") shall be subject to
the condition that, if, when and to the extent that it is so determined 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 paid; provided, however, that if
Indemnitee has commenced or thereafter
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commences legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law, any
initial determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding 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 not been a
Change in Control (as defined in Section 10.3), the Reviewing Party shall be
selected by the Board of Directors, and if there has been such a Change in
Control (other than a Change in Control which has been approved by a majority of
the Company's Board of Directors who were directors immediately prior to such
Change in Control), the Reviewing Party shall be the Independent Legal Counsel
referred to in Section 1.5. 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. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
1.3 CONTRIBUTION. If the indemnification provided for in Section 1.1
above for any reason is held by a court of competent jurisdiction to be
unavailable to an Indemnitee in respect of any losses, claims, damages, expenses
or liabilities referred to therein, then the Company, in lieu of indemnifying
such Indemnitee thereunder, shall contribute to the amount paid or payable by
such Indemnitee as a result of such losses, claims, damages, expenses or
liabilities (a) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Indemnitee, or (b) if the allocation
provided by clause (a) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (a) above but also the relative fault of the Company and the
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 the 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 the
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 the 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 the
Indemnitee and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 1.3 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 1.3 in excess of the lesser of (a) 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
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being sold by such Indemnitee or (b) the proceeds received by such 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.
1.4 SURVIVAL REGARDLESS OF INVESTIGATION. The indemnification and
contribution provided for in this Section 1 will remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnitee or any
officer, director, general partner, limited partner, member, managing member,
employee, agent or controlling person of the Indemnitee.
1.5 CHANGE IN CONTROL. The Company agrees that if there is a Change
in Control of the Company (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control) then, with respect to all matters
thereafter arising concerning the rights of Indemnitee to payments of Expenses
under this Agreement or any other agreement or under the Company's Articles of
Incorporation, as amended, (the "ARTICLES") or Bylaws as now or hereafter in
effect, Independent Legal Counsel (as defined in Section 10.4) shall be selected
by the 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. The
Company agrees to abide by such opinion and to pay the reasonable fees of the
Independent Legal Counsel referred to above and to fully indemnify 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.
1.6 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 an
action without prejudice, in the defense of any action, suit, proceeding,
inquiry or investigation referred to in Section 1.1 or in the defense of any
claim, issue or matter therein, each Indemnitee shall be indemnified against all
Expenses incurred by such Indemnitee in connection herewith.
2. EXPENSES; INDEMNIFICATION PROCEDURE
2.1 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 15
days after written demand by such Indemnitee therefor to the Company.
2.2 NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall give the
Company notice 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 Chief Executive Officer 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).
2.3 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
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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 Indemnitee
is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
2.4 NOTICE TO INSURERS. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 2.2 hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt written notice of the commencement of such Claim to the insurers in
accordance with the procedures set forth in each of the policies. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of Indemnitee, all amounts payable as a result of such action,
suit, proceeding, inquiry or investigation in accordance with the terms of such
policies.
2.5 SELECTION OF COUNSEL. In the event the Company shall be
obligated hereunder to pay the Expenses of any Claim, the Company shall be
entitled to assume the defense of such Claim, with counsel reasonably approved
by the applicable Indemnitee, upon the delivery to such Indemnitee of written
notice of its election to do so. After delivery of such notice, approval of such
counsel by the Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to such Indemnitee under this Agreement for any fees
of counsel subsequently incurred by such Indemnitee with respect to the same
Claim; provided that, (a) the Indemnitee shall have the right to employ such
Indemnitee's counsel in any such Claim at the Indemnitee's expense; (b) the
Indemnitee shall have the right to employ his 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 (c) if
(i) the employment of counsel by the Indemnitee has been previously authorized
by the Company, (ii) such Indemnitee shall have reasonably concluded that there
is a conflict of interest between the Company and such Indemnitee in the conduct
of any such defense, or (iii) the Company shall not continue to retain such
counsel to defend such Claim, then the fees and expenses of the Indemnitee's
counsel shall be at the expense of the Company.
3. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY
3.1 SCOPE. The Company hereby agrees to indemnify Indemnitee to the
fullest extent permitted by law, even if such indemnification is not
specifically authorized by the other provisions of this Agreement or any other
agreement, the Company's Articles, 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 Utah corporation to indemnify a
member of its Board of Directors or an officer, stockholder (as defined in
Section 10.7), 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 Utah corporation to
indemnify a member
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of its Board of Directors or an officer, stockholder (as defined in Section
10.7), employee, 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 8.1 hereof.
3.2 NONEXCLUSIVITY. The indemnification provided by this Agreement
shall be in addition to any rights to which Indemnitee may be entitled under the
Company's Articles, its Bylaws, any agreement, any vote of stockholders or
disinterested directors, the laws of the State of Utah, or otherwise. The
indemnification provided under this Agreement shall continue as to each
Indemnitee for any action such Indemnitee took or did not take while serving in
an indemnified capacity even though the Indemnitee may have ceased to serve in
such capacity and such indemnification shall inure to the benefit of each
Indemnitee from and after Indemnitee's first day of service as a director with
the Company or affiliation with a director from and after the date such director
commences services as a director with the Company.
4. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against any
Indemnitee to the extent such Indemnitee has otherwise actually received payment
(under any insurance policy, Articles, Bylaws or otherwise) of the amounts
otherwise indemnifiable hereunder.
5. PARTIAL INDEMNIFICATION. If any 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 such Indemnitee is entitled.
6. MUTUAL ACKNOWLEDGEMENT. The Company and each Indemnitee acknowledge
that in certain instances, Federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers, stockholders (as defined
in Section 10.7), employees, controlling persons, agents or fiduciaries under
this Agreement or otherwise.
7. LIABILITY INSURANCE. To the extent the Company maintains liability
insurance applicable to directors, officers, stockholders (as defined in Section
10.7), employees, control persons, agents or fiduciaries, each Indemnitee shall
be covered by such policies in such a manner as to provide Indemnitee the same
rights and benefits as are accorded to the most favorably insured of the
Company's directors, if such Indemnitee is a director, or of the Company's
officers, if such Indemnitee is not a director of the Company but is an officer,
or of the Company's key employees, controlling persons, agents or fiduciaries,
if such Indemnitee is not an officer or director but is a key employee, agent,
control person, or fiduciary.
8. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
8.1 CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance expenses
to any Indemnitee with respect to Claims initiated or brought voluntarily by
such Indemnitee and not by way of defense, except (a) with respect to actions or
proceedings to establish or enforce a right to indemnification under this
Agreement or any other agreement or insurance policy or under the Company's
Articles or Bylaws now or hereafter in effect relating to Claims for
Indemnifiable Events, (b) in specific cases if the Board of Directors has
approved the initiation or bringing of such
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Claim, or (c) as otherwise required under Utah statute or law, regardless of
whether such Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be; or
8.2 CLAIM UNDER SECTION 16(b). To indemnify any Indemnitee for
expenses and the payment of profits arising from the purchase and sale by such
Indemnitee of securities in violation of Section 16(b) of the Exchange Act or
any similar successor statute; or
8.3 CLAIM UNDER SECTION 10(b). To indemnify any Indemnitee for
expenses and the payment of damages arising from either purchases or sales by
such Indemnitee of securities in violation of Section 10(b) of the Exchange Act
or any similar successor statute, and any regulations promulgated thereunder,
except those damages arising pursuant to a registered offering or transaction
approved by the Company; or
8.4 UNLAWFUL INDEMNIFICATION. To indemnify an Indemnitee if a final
decision by a court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
9. 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 any
Indemnitee, any Indemnitee's estate, spouse, heirs, executors or personal or
legal representatives after the expiration of five 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 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.
10. CONSTRUCTION OF CERTAIN PHRASES
10.1 For purposes of this Agreement, references to the "COMPANY"
shall include, in addition to the resulting corporation, any 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, stockholders
(as defined in Section 10.7), employees, agents or fiduciaries, so that if
Indemnitee is or was or may be deemed a director, officer, stockholder (as
defined in Section 10.7), employee, agent, control person, 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, stockholder (as
defined in Section 10.7), employee, control person, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, each Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as each Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
10.2 For purposes of this Agreement, references to "OTHER
ENTERPRISES" shall include employee benefit plans; references to "FINES" shall
include any excise taxes assessed on any 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, stockholder (as defined in Section
10.7), employee, agent or fiduciary of the Company which imposes duties on, or
involves services by, such director, officer, stockholder (as defined in Section
10.7), employee, agent or fiduciary with respect to an employee benefit plan,
its participants or its beneficiaries; and if any Indemnitee acted in good
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faith and in a manner such Indemnitee reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan, such
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.
10.3 For purposes of this Agreement a "CHANGE IN CONTROL" shall be
deemed to have occurred if (a) any "PERSON" (as such term is used in Section
13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders (as defined in
Section 10.7) of the Company in substantially the same proportions as their
ownership of stock of the Company, (i) who is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing twenty percent
(20%) or more of the combined voting power of the Company's then outstanding
Voting Securities, increases his beneficial ownership of such securities by five
percent (5%) or more over the percentage so owned by such person, or (ii)
becomes the "BENEFICIAL OWNER" (as defined in Rule 13d-3 under said Exchange
Act), directly or indirectly, of securities of the Company representing more
than thirty percent (30%) of the total voting power represented by the Company's
then outstanding Voting Securities, (b) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of
Directors or combination for election by the Company's stockholders (as defined
in Section 10.7) was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, or (c) the stockholders
(as defined in Section 10.7) of the Company approve a merger or consolidation of
the Company with any other corporation other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least two-thirds (2/3) of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders (as defined
in Section 10.7) of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one
transaction or a series of transactions) all or substantially all of the
Company's assets.
10.4 For purposes of this Agreement, "INDEPENDENT LEGAL COUNSEL"
shall mean an attorney or firm of attorneys, selected in accordance with the
provisions of Section 1.5, who shall not have otherwise performed services for
the Company or any Indemnitee within the last three years (other than with
respect to matters concerning the right of any Indemnitee under this Agreement,
or of other indemnitees under similar indemnity agreements).
10.5 For purposes of this Agreement, a "REVIEWING PARTY" shall mean
any appropriate person or body consisting of a member or members of the
Company's Board of Directors or any other person or body appointed by the Board
of Directors who is not a party to the particular Claim for which Indemnitee is
seeking indemnification or Independent Legal Counsel.
10.6 For purposes of this Agreement, "VOTING SECURITIES" shall mean
any securities of the Company that vote generally in the election of directors.
10.7 For purposes of this Agreement, "STOCKHOLDER" shall include any
holder of any capital stock of the Company and an affiliate thereof. For
purposes of this Agreement,
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"AFFILIATE" shall constitute any limited partner, general partner, or any member
or managing member of such general partner.
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, assigns, including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, partnership,
spouses, heirs, and personal and legal representatives. The Company shall
require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business and/or assets of the Company, by written agreement in form and
substance satisfactory to each 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 with respect to Claims relating to
Indemnifiable Events regardless of whether any Indemnitee continues to serve as
a director, officer, employee, agent, controlling person, or fiduciary of the
Company or of any other enterprise, including subsidiaries of the Company, at
the Company's request.
13. ATTORNEYS' FEES. In the event that any action is instituted by
an 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, such Indemnitee shall be entitled to be paid all Expenses incurred by
such Indemnitee with respect to 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 such Indemnitee as a basis for such action
was not made in good faith or was 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, the Indemnitee shall be entitled
to be paid all Expenses incurred by such Indemnitee in defense of such action
(including costs and expenses incurred with respect to Indemnitee 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 and other communications required or
permitted under this Agreement shall be conclusively deemed given upon actual
receipt if given by hand delivery, overnight courier, mail or facsimile
transmission in writing, shall be effective when given, and shall in any event
be deemed to be given (a) five days after deposit with the U.S. Postal Service
or other applicable postal service, if delivered by first class mail, postage
prepaid, (b) upon delivery, if delivered by hand, (c) one business day after the
business day of deposit with Federal Express or similar overnight courier,
freight prepaid, or (d) one day after the business day of delivery by facsimile
transmission, if deliverable by facsimile transmission, with copy by first class
mail, postage prepaid, and shall be addressed, if to Indemnitee, at each
Indemnitee's address as set forth beneath the Indemnitee's signature to this
Agreement, and, if to the Company, at the address of its principal corporate
offices (attention: Secretary), or at such other address as such party may
designate by ten days' advance written notice to the other parties hereto.
15. CONSENT TO JURISDICTION. The Company and each Indemnitee each
hereby irrevocably consent to the jurisdiction and venue of the courts of the
State of California for all
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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 the
State of California.
16. SEVERABILITY. If any provision of this Agreement, or the application
thereof, is for any reason and to any extent determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement and
the application of such provision to other Persons or circumstances will be
interpreted so as best to effect the intent of the parties to this Agreement to
the maximum permissible extent. The parties agree to use their best efforts to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent greatest possible, the
economic, business and other purposes of the void or unenforceable provision.
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
California, as applied to contracts between California residents, entered into
and to be performed entirely within the State of California, without regard to
the conflict of laws principles thereof.
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 the parties to be bound thereby. Notice of same shall be provided to
all parties hereto. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
20. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in this
Agreement shall be construed as giving any Indemnitee any right to be retained
in the employ of the Company or any of its subsidiaries.
21. CORPORATE AUTHORITY. The Board of Directors of the Company has
approved the terms of this Agreement in accordance with Utah law and has
obtained any shareholder approval required under Utah law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
TOMAX TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: CEO and President
Address:
INDEMNITEE:
Oracle Corporation
By: /s/ Xxxx Xxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President, Corporate Development
Address:
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/s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx, Director
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx, Director
/s/ Xxxxx Low
-----------------------------------------
Xxxxx X. Low, Director
/s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx, Director
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxxx, Director
/s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx, Director
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