EXHIBIT 10.10
FORM OF INDEMNIFICATION AGREEMENT
This Agreement is made as of the __ day of ___________ 200_, by and between
VelocityHSI, Inc., a Delaware Corporation ("the Company"), and the undersigned
director or officer of the Company (the "Indemnitee"), with reference to the
following facts:
The Indemnitee is currently serving as a director and/or officer of the Company
and the Company wishes the Indemnitee to continue in that capacity. The
Indemnitee is willing, under certain circumstances, to continue to serve in that
capacity.
The Indemnitee has indicated that he does not regard the indemnities available
under the Company's Bylaws 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 or officer
of the Company and in consideration of his continued service, the Company hereby
agrees to indemnify the Indemnitee as follows:
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; provided however, that, except as provided in
Section 3 hereof, the Company shall indemnify Indemnitee in connection
with a Proceeding initiated by Indemnitee only if such proceeding (or part
thereof) was authorized by a two-thirds vote of the Board of Directors of
the Company. 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 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:
5.1. to the extent that payment is actually made to the Indemnitee under
a valid, enforceable and collectible insurance policy;
5.2. to the extent that the Indemnitee is indemnified and actually paid
otherwise than pursuant to this Agreement;
5.3. 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 all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper;
5.4. 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;
5.5. 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;
5.6. brought about or contributed to by the dishonesty of the Indemnitee
seeking payment hereunder; provided, 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
5.7. 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, 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
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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.
Counterparts. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one instrument.
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.
Governing Law. This Agreement shall be governed by and construed in accordance
with Delaware law.
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.
Coverage. The provisions of this Agreement shall apply with respect to the
Indemnitee's service as a director or 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 or officer of the Company.
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.
VELOCITYHSI, INC.,
a Delaware corporation
By:
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Name:
Title:
INDEMNITEE:
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Name:
