ALONG MOBILE TECHNOLOGIES, INC. DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
ALONG
MOBILE TECHNOLOGIES, INC.
This
indemnification agreement (the "Agreement") is entered into as of, by and
between Along
Mobile Technologies, Inc., a Nevada Corporation (the "Corporation"), and Xxxx
Xxxx ("Indemnitee"), with an effective date of _____ being the date of such
Indemnitee's appointment as a Director or Officer of the Corporation (the
"Effective Date"), and is based on the following:
PREMISES
| A. |
The
Corporation and Indemnitee recognize the difficulty in obtaining liability
insurance for the Corporation's independent and non-independent directors,
as well as officers, the significant increases in the cost of such
insurance, and the general reductions in the coverage of such insurance.
Furthermore, the Corporation and Indemnitee also recognize the substantial
increase in corporate litigation in general, subjecting independent
and
non-independent directors, as well as officers, to expensive litigation
risks at the same time as the availability and coverage of liability
insurance have been severely limited.
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| B. |
Indemnitee
may not be willing to serve in such capacity(s) without protection.
Moreover, the Corporation (i) desires to attract and retain the
involvement of highly-qualified persons, such as Indemnitee, to serve
the
Corporation and, in part, in order to induce Indemnitee to be involved
with the Corporation, (ii) wishes to provide for the indemnification
and
advancing of expenses to Indemnitee to the maximum extent permitted
by
law, and (iii) wishes to assure Indemnitee that there will be increased
certainty of adequate protection in the future.
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| C. |
In
addition to any insurance purchased by the Corporation on behalf of
Indemnitee, the purchase of such insurance being at the sole discretion
of
the Corporation, it is reasonable, prudent, and necessary for the
Corporation to obligate itself contractually to indemnify Indemnitee
so
that he may remain free from undue concern that he will not be adequately
protected both during his service as an independent or non-independent
officer and/or director of the Corporation and following any termination
of such service.
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| D. |
The
directors of the Corporation have duly approved this Agreement and
the
indemnification provided herein with the express recognition that the
indemnification arrangements provided herein exceed that which the
Corporation would be required to provide pursuant to Nevada Law.
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AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Corporation and Indemnitee do hereby covenant and agree as follows:
| 1. |
Definitions.
For purposes of this Agreement:
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| a. |
“Indemnitee”
shall include the Indemnitee named in the first paragraph of this
Agreement and such Indemnitee's actual or alleged alter egos, spouse,
family members, and corporations, partnerships, limited liability
companies, trusts, and other enterprises or entities of any form
whatsoever under the control of any of the foregoing, and the property
of
all of the foregoing. The term "control" (including the terms
"controlling," "controlled by," and "under common control with") means
the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a person or entity, whether
through the ownership of voting securities, by contract, or otherwise,
as
interpreted under the Securities Act of 1933 or the Securities Exchange
Act of 1934 ("Exchange Act").
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| b. |
''Disinterested
Director'' means a director of the Corporation who is not or was not
a
party to the Proceeding in respect of which indemnification is being
sought by Indemnitee.
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| c. |
''Expenses''
includes, without limitation, expenses incurred in connection with
the
defense or settlement of any and all investigations, judicial or
administrative proceedings or appeals, attorneys' fees, witness fees
and
expenses, fees and expenses of accountants and other advisors, retainers
and disbursements and advances thereon, the premium, security for,
and
other costs relating to any bond (including cost bonds, appraisal bonds
or
their equivalents), and any expenses of establishing a right to
indemnification under Sections 3,4,5,6 and 7 below, but shall not include
the amount of judgments, fines or penalties actually levied against
Indemnitee.
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| d. |
''Independent
Counsel'' means a law firm or a member of a law firm, who (or which)
is
authorized to practice law in the State of Nevada, and neither is
presently nor in the past five years has been retained to represent:
(i)
the Corporation or 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 Indemnitee
in an action to determine Indemnitee's right to indemnification under
this
Agreement.
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| e. |
‘'Proceeding''
includes any threatened, pending or completed investigation, action,
suit
or other proceeding, whether brought in the name of the Corporation
or
otherwise, against Indemnitee, for which indemnification is not prohibited
under Sections 3 below and whether of a civil, criminal, administrative
or
investigative nature, including, but not limited to, actions, suits
or
proceedings in which Indemnitee may be or may have been involved as
a
party or otherwise, by reason of the fact that Indemnitee is or was
an
independent or non-independent director or officer of the Corporation,
or
is or was serving, at the request of the Corporation, as a director
or
officer of any other entity, including, but not limited to, another
corporation, partnership, joint venture or trust, or by reason of anything
done or not done by Indemnitee in any such capacity, whether or not
Indemnitee is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can
be
provided under this Agreement.
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| 2. |
Service
by Indemnitee.
Indemnitee will serve and/or continue to serve as an independent or
non-independent director or officer of the Corporation faithfully and
to
the best of Indemnitee's ability so long as Indemnitee is duly elected
or
appointed and until such time as Indemnitee is removed as permitted
by law
or tenders a resignation in writing.
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| 3. |
Indemnification.
The Corporation shall indemnify Indemnitee to the fullest extent permitted
by Nevada Law in effect on the date hereof or as such law may from
time to
time be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment). Without diminishing the scope of the
indemnification provided by this Section, the rights of indemnification
of
Indemnitee provided hereunder shall include but shall not be limited
to
those rights hereinafter set forth, except that no indemnification
shall
be paid to Indemnitee:
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| a. |
To
the extent expressly prohibited by Nevada
Law;
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| b. |
For
which payment is actually made to Indemnitee under a valid and collectible
insurance policy or under a valid and enforceable indemnity clause,
agreement of the Corporation or any other Corporation or organization
on
whose board Indemnitee serves at the request of the Corporation, except
in
respect of any indemnity exceeding the payment under such insurance,
clause, or agreement;
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| c. |
In
connection with an action, suit or proceeding, or part thereof (including
claims and counterclaims) initiated by Indemnitee, except a judicial
proceeding or arbitration pursuant to Section 18 to enforce rights
under
this Agreement, unless the action, suit or proceeding (or part thereof)
was authorized by the Board of Directors of the
Corporation;
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| d. |
For
any amounts paid in settlement of any action, suit or proceeding effected
without the Corporation’s written consent and pursuant to Section 11 of
this Agreement;
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| e. |
With
respect to any action, suit or proceeding brought by or on behalf of
the
Corporation against Indemnitee that is authorized by the Board of
Directors of the Corporation, except as provided in Sections 5,6,and
7
below; and
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| f. |
With
respect to any action, suit or proceeding in which the final adjudication
establishes that Indemnitee's act’s or omissions involved intentional
misconduct, fraud, gross negligence, or a knowing violation of law
and
were material to the cause of action.
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| 4. |
Action
or Proceedings Other than an Action by or in the Right of the
Corporation.
Except as limited by Section 3 above, Indemnitee shall be entitled
to the
indemnification rights provided in this Section if Indemnitee is a
party
or is threatened to be made a party to any Proceeding (other than an
action by or in the name of the Corporation) by reason of the fact
that
Indemnitee is or was an independent or non-independent director or
officer
of the Corporation, or is or was serving at the request of the Corporation
as an officer or director of another entity; or by reason of anything
done
or not done by Indemnitee in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all costs, judgments, penalties,
fines, liabilities, amounts paid in settlement by or on behalf of
Indemnitee, and Expenses actually and reasonably incurred by Indemnitee
in
connection with such Proceeding, if Indemnitee acted in good faith
and in
a manner he 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 his or her conduct was
unlawful.
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| 5. |
Indemnity
in Proceedings by or in the Name of the Corporation.
Except as limited by Section 3 above, Indemnitee shall be entitled
to the
indemnification rights provided in this Section if Indemnitee was or
is a
party or is threatened to be made a party to any Proceeding brought
by or
in the name of the Corporation to procure a judgment in its favor by
reason of the fact that Indemnitee is or was an independent or
non-independent director or officer of the Corporation, or by reason
of
anything done or not done by Indemnitee in any such capacity. Pursuant
to
this Section, Indemnitee shall be indemnified against all costs,
judgments, penalties, fines, liabilities, amounts paid in settlement
by or
on behalf of Indemnitee, and Expenses actually and reasonably incurred
by
Indemnitee in connection with such Proceeding if Indemnitee acted in
good
faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Corporation; provided, however,
that
no such indemnification shall be made in respect of any claim, issue,
or
matter as to which Nevada Law expressly prohibits such indemnification
by
reason of any adjudication of liability of Indemnitee to the Corporation,
unless, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is entitled to indemnification
for
such costs, judgments, penalties, fines, liabilities and Expenses as
a
Nevada court shall deem proper.
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| 6. |
Indemnification
for Costs, Charges and Expenses of Successful Party.
Notwithstanding the limitations of Section 3, to the extent that
Indemnitee has been successful, on the merits or otherwise, in whole or in
part, in defense of any action, suit or proceeding (including an action,
suit or proceeding brought by or on behalf of the Corporation) or in
defense of any claim, issue or matter therein, including, without
limitation, the dismissal of any action without prejudice, or if it
is
ultimately determined that Indemnitee is otherwise entitled to be
indemnified against Expenses, Indemnitee shall be indemnified against
all
Expenses actually and reasonably incurred in connection
therewith.
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| 7. |
Partial
Indemnification.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the costs,
judgments, penalties, fines, liabilities or Expenses actually and
reasonably incurred in connection with any action, suit or proceeding
(including an action, suit or proceeding brought by or on behalf of
the
Corporation), but not, however, for all of the total amount thereof,
the
Corporation shall nevertheless indemnify Indemnitee for the portion
of
such costs, judgments, penalties, fines, liabilities and Expenses actually
and reasonably incurred to which Indemnitee is
entitled.
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| 8. |
Determination
of Entitlement to Indemnification.
Upon written request by Indemnitee for indemnification pursuant to
Sections 3,4,5,6 or 7, the entitlement of Indemnitee to indemnification,
to the extent not provided pursuant to the terms of this Agreement,
shall
be determined by the following person or persons who shall be empowered
to
make such determination: (a) the Board of Directors of the Corporation
by
a majority vote of Disinterested Directors, whether or not such majority
constitutes a quorum; (b) a committee of Disinterested Directors
designated by a majority vote of such directors, whether or not such
majority constitutes a quorum; (c) if there are no Disinterested
Directors, or if the Disinterested Directors so direct, by Independent
Counsel in a written opinion to the Board of Directors, a copy of which
shall be delivered to Indemnitee; or (d) the stockholders of the
Corporation.
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| 9. |
Selection
of Independent Counsel.
Independent Counsel shall be selected by the Board of Directors, and
the
Corporation shall give written notice to Indemnitee advising him of
the
identity of Independent Counsel so selected. Indemnitee may, within
seven
days after such written notice of selection shall have been given,
deliver
to the Corporation a written objection to such selection. Such objection
may be asserted only on the ground that 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. If such written objection is made,
Independent Counsel so selected may not serve as Independent Counsel
unless and until a court has determined that such objection is without
merit. If, within 20 days after submission by Indemnitee of a written
objection to the Independent Counsel selected, the Corporation has
failed
to identify a replacement Independent Counsel, the Indemnitee may petition
any court of competent jurisdiction for resolution of any objection
that
shall have been made by Indemnitee to the Corporation's selection of
Independent Counsel and for appointment as Independent Counsel of a
person
selected by such court or by such other person as such court shall
designate, and the person with respect to whom an objection is so resolved
or the person so appointed shall act as Independent Counsel. The
Corporation shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in connection
with its fees and expenses incident to the procedures of this Section
regardless of the manner in which such Independent Counsel was selected
or
appointed.
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| 10. |
Presumptions
and Effect of Certain Proceedings.
The Secretary of the Corporation shall, promptly upon receipt of
Indemnitee's request for indemnification, advise in writing the Board
of
Directors or such other person or persons empowered to make the
determination as provided in Section 9 that Indemnitee has made such
request for indemnification. Upon making such request for indemnification,
Indemnitee shall be presumed to be entitled to indemnification hereunder
and the Corporation shall have the burden of proof in making any
determination contrary to such presumption. If the person or persons
so
empowered to make such determination shall have failed to make the
requested determination with respect to indemnification within 30 calendar
days after receipt by the Corporation of such request, a requisite
determination of entitlement to indemnification shall be deemed to
have
been made and Indemnitee shall be absolutely entitled to such
indemnification, absent actual and material fraud in the request for
indemnification. The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself: (a) create a presumption that Indemnitee
did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that Indemnitee's conduct was unlawful;
or (b)
otherwise adversely affect the rights of Indemnitee to indemnification
except as may be provided herein.
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| 11. |
Settlement
of Claims.
The Corporation shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any Proceeding affected
without the Corporation's written consent. The Corporation shall not
settle any Proceeding in any manner that would impose any penalty or
limitation on Indemnitee's rights under this Agreement without
Indemnitee's written consent. Neither the Corporation nor Indemnitee
will
unreasonably withhold its consent to any proposed settlement. The
Corporation shall not be liable to indemnify Indemnitee under this
Agreement with regard to any judicial award if the Corporation was
not
given a reasonable and timely opportunity, at its expense, to participate
in the defense of such action.
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| 12. |
Notification
and Defense of Claim.
Promptly after receipt by Indemnitee of notice of any Proceeding,
Indemnitee will, if a claim in respect thereof is to be made against
the
Corporation under this Agreement or against Indemnitee in his capacity
as
an independent or non-independent director or officer, notify the
Corporation in writing of the commencement thereof; but the omission
so to
notify the Corporation will not relieve it from any liability that
it may
have to Indemnitee. Notwithstanding any other provision of this Agreement,
with respect to any such Proceeding of which Indemnitee notifies the
Corporation:
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| a. |
The
Corporation shall be entitled to participate therein at its own expense;
and
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| b. |
Except
as otherwise provided in this Agreement, to the extent that it may
wish,
the Corporation, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Corporation to
Indemnitee of its election so to assume the defense thereof, the
Corporation shall not be liable to Indemnitee under this Agreement
for any
expenses of counsel subsequently incurred by Indemnitee in connection
with
the defense thereof except as otherwise provided below. Indemnitee
shall
have the right to employ Indemnitee's own counsel in such Proceeding,
but
the fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at the
expense of Indemnitee unless: (i) the employment of counsel by Indemnitee
has been authorized by the Corporation; (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between
the
Corporation and Indemnitee in the conduct of the defense of such action;
or (iii) the Corporation shall not within 60 calendar days of receipt
of
notice from Indemnitee in fact have employed counsel to assume the
defense
of the action, in each of which cases the fees and expenses of
Indemnitee's counsel shall be at the expense of the Corporation. The
Corporation shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Corporation or as to which Indemnitee
shall
have made the conclusion provided for in (ii) above;
and
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| c. |
If
the Corporation has assumed the defense of a Proceeding, the Corporation
shall not be liable to indemnify Indemnitee under this Agreement for
any
amounts paid in settlement of any Proceeding affected without the
Corporation's written consent. The Corporation shall not settle any
Proceeding in any manner that would impose any penalty or limitation
on or
disclosure obligation with respect to Indemnitee without Indemnitee's
written consent. Neither the Corporation nor Indemnitee will unreasonably
withhold its consent to any proposed
settlement.
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| 13. |
Officer
and Director Liability Insurance. The
Corporation shall, from time to time, make the good faith determination
whether or not it is practicable for the Corporation to obtain and
maintain a policy or policies of insurance with reputable insurance
companies providing the independent and non-independent directors,
as well
as officers, of the Corporation with coverage for Expenses or to ensure
the Corporation's performance of its indemnification obligations under
this Agreement. Among other considerations, the Corporation will weigh
the
costs of obtaining such insurance coverage against the protection afforded
by such coverage. The Corporation shall consult with and be heard by
Indemnitee in connection with the Corporation's actions hereunder.
In all
policies of director and officer liability insurance, (a) Indemnitee
shall
be named as an insured in such a manner as to provide Indemnitee the
same
rights and benefits as are accorded to the most favorably insured of
the
Corporation's directors, if Indemnitee is a director, or of the
Corporation's officers, if Indemnitee is not a director of the Corporation
but is an officer; and (b) the policy shall provide that it shall not
be
cancelled or materially modified without 30 days' prior written notice
to
Indemnitee. Notwithstanding the foregoing, the Corporation shall have
no
obligation to obtain or maintain such insurance if the Corporation
determines in good faith that such insurance is not reasonably available,
if the premium costs for such insurance are disproportionate to the
amount
of coverage provided, if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or
if
Indemnitee is covered by similar insurance maintained by a subsidiary
or
parent of the Corporation.
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| 14. |
Payment
of Expenses.
All Expenses incurred by Indemnitee in advance of the final disposition
of
any Proceeding shall be paid by the Corporation at the request of
Indemnitee, each such payment to be made within twenty calendar days
after
the receipt by the Corporation of a statement or statements from
Indemnitee requesting such payment or payments from time to time.
Indemnitee's entitlement to such Expenses shall include those incurred
in
connection with any Proceeding by Indemnitee seeking a judgment in
court
or an adjudication or award in arbitration pursuant to this Agreement
(including the enforcement of this provision). Such statement or
statements shall reasonably evidence the expenses and costs incurred
by
Indemnitee in connection therewith and shall include or be accompanied
by
an undertaking by or on behalf of Indemnitee to reimburse such amount
if
it is finally determined, after all appeals by a court of competent
jurisdiction that Indemnitee is not entitled to be indemnified against
such Expenses by the Corporation as provided by this Agreement or
otherwise. Indemnitee's undertaking to reimburse any such amounts is
not
required to be secured.
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| 15. |
Other
Financial Arrangements.
The Corporation may make other financial arrangements acceptable to
Indemnitee for Indemnitee's benefit and Indemnitee shall be an intended
third-party beneficiary of any such arrangement, with the right, power,
and authority of the Indemnitee to xxx for, enforce, and collect the
same,
in the name, place, and stead of the Corporation or otherwise, for
Indemnitee's benefit. Any such fund or other arrangements shall be
available to Indemnitee for payment of Expenses upon the Corporation's
failure, inability, or refusal to pay Expenses incurred by the Indemnitee.
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| 16. |
Remedies
of Indemnitee in Cases of Determination not to Indemnify or to Pay
Expenses.
In the event that a determination is made that Indemnitee is not entitled
to indemnification hereunder or if payment has not been timely made
following a determination of entitlement to indemnification, or if
Expenses are not paid pursuant to Section 14, Indemnitee shall be entitled
to final adjudication in a court of competent jurisdiction of entitlement
to such indemnification or payment. Alternatively, Indemnitee at
Indemnitee's option may seek an award in an arbitration to be conducted
by
a single arbitrator pursuant to the rules of the American Arbitration
Association, such award to be made within sixty days following the
filing
of the demand for arbitration. The Corporation shall not oppose
Indemnitee's right to seek any such adjudication or award in arbitration
or any other claim. The determination in any such judicial proceeding
or
arbitration shall be made de novo and Indemnitee shall not be prejudiced
by reason of a determination (if so made) that Indemnitee is not entitled
to indemnification. If a determination is made or deemed to have been
made
pursuant to the terms of Section 8 that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination
and
is precluded from asserting that such determination has not been made
or
that the procedure by which such determination was made is not valid,
binding and enforceable. The Corporation further agrees to stipulate
in
any such court or before any such arbitrator that the Corporation is
bound
by all the provisions of this Agreement and is precluded from making
any
assertions to the contrary. If the court or arbitrator shall determine
that Indemnitee is entitled to any indemnification or payment of Expenses
hereunder, the Corporation shall pay all Expenses actually and reasonably
incurred by Indemnitee in connection with such adjudication or award
in
arbitration (including, but not limited to, any appellate
Proceedings).
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| 17. |
Other
Rights to Indemnification.
Indemnification and payment of Expenses provided by this Agreement
shall
not be deemed exclusive of any other rights to which Indemnitee may
now or
in the future be entitled under any organizational documents of the
Corporation, vote of stockholders or Disinterested Directors, provision
of
law, agreement or otherwise.
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| 18. |
Enforcement.
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| a. |
The
Corporation expressly confirms and agrees that it has entered into
this
Agreement and assumed the obligations imposed on the Corporation hereby
in
order to induce Indemnitee to serve as a director or officer of the
Corporation, and acknowledges that Indemnitee is relying upon this
Agreement in continuing as an independent or non-independent director
or
officer. The Corporation shall be precluded from asserting in any action
commenced pursuant to this section 15 that the procedures and presumptions
in this section are not valid, binding, and enforceable and shall
stipulate in any such judicial proceedings that the Corporation is
bound
by all of the provisions of this Agreement.
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| b. |
In
any action commenced pursuant to this Section 18, Indemnitee shall
be
presumed to be entitled to indemnification and advancement of Expenses
in
accordance with Section 8 under this Agreement, as the case may be,
and
the Corporation shall have the burden of proof in overcoming such
presumption and must show by clear and convincing evidence that Indemnitee
is not entitled to indemnification or advancement of Expenses, as the
case
may be.
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| c. |
The
execution of this Agreement shall constitute the Corporation's stipulation
by which it shall be irrevocably bound in any action by Indemnitee
for
enforcement of Indemnitee's rights hereunder that the Corporation's
obligations set forth in this Agreement are unique and special, and
that
failure of the Corporation to comply with the provisions of this Agreement
will cause irreparable and immediate injury to Indemnitee, for which
a
remedy at law will be inadequate. As a result, in addition to any other
right or remedy Indemnitee may have at law or in equity respecting
a
breach of this Agreement, Indemnitee shall be entitled to injunctive
or
mandatory relief directing specific performance by the Corporation
of its
obligations under this Agreement.
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| 19. |
Expenses
to Enforce Agreement.
In the event that Indemnitee is subject to or intervenes in any Proceeding
in which the validity or enforceability of this Agreement is at issue
or
seeks an adjudication or award in arbitration to enforce Indemnitee's
rights under, or to recover damages for breach of this Agreement,
Indemnitee, if Indemnitee prevails in whole or in part in such action,
shall be entitled to recover from the Corporation and shall be indemnified
by the Corporation against any actual Expenses incurred by
Indemnitee.
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| 20. |
Continuation
of Indemnity.
All agreements and obligations of the Corporation contained herein
shall
continue during the period Indemnitee is an independent or non-independent
director or officer of the Corporation or is serving at the request
of the
Corporation as a director or officer of any other entity of the
Corporation, and shall continue thereafter with respect to any possible
claims based on the fact that Indemnitee was an independent or
non-independent director or officer of the Corporation or was serving
at
the request of the Corporation as a director or officer of any other
entity.
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| 21. |
Headings;
References; Pronouns.
The headings of the sections 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. References herein
to
section numbers are to sections of this Agreement. All pronouns and
any
variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as
appropriate.
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| 22. |
Governing
Law:
Binding
Effect, Amendment and Termination,
Construction
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| a. |
This
Agreement shall be interpreted and enforced in accordance with Nevada
Law.
|
| b. |
This
Agreement shall be binding upon the Corporation, its successors and
assigns, and shall inure to the benefit of Indemnitee, such Indemnitee's
actual or alleged alter egos, spouse, family members, and corporations,
partnerships, limited liability companies, trusts, and other enterprises
or entities of any form whatsoever under the control of any of the
foregoing, the property of all of the foregoing, and the successors
and
assigns of all of the foregoing.
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| c. |
No
amendment, modification, termination, or cancellation of this Agreement
shall be effective unless in writing signed by the Corporation and
Indemnitee.
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| d. |
This
Agreement shall be construed liberally in favor of the Indemnitee to
the
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fullest
extent possible under Nevada Law, even if such indemnification is not
specifically authorized by this Agreement or any other agreement, or by Nevada
Law. In the event Nevada Law is changed after the date of this Agreement,
through statutory amendment, judicial interpretation, administrative
regulations, or otherwise, to allow additional indemnification or to remove
or
restrict current limitations on indemnification, this Agreement shall be deemed
to be amended and reformed so that Indemnitee shall enjoy by this Agreement
the
greater benefits of such change. In the event of any change in Nevada Law that
narrows or restricts the right of a Nevada corporation to indemnify Indemnitee,
such change, to the extent not otherwise required by Nevada Law to be applied
to
Indemnitee in the relevant circumstances, shall have no effect on this Agreement
or the rights and obligations of the parties hereunder.
| 23. |
Mutual
Acknowledgement. Both
the Corporation and Indemnitee acknowledge that in certain instances,
federal law or applicable public policy may prohibit the Corporation
from
indemnifying its directors and officers under this Agreement or otherwise.
Indemnitee understands and acknowledges that the Corporation may be
required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in
certain
circumstances for a determination of the Corporation's right under
public
policy to indemnify Indemnitee.
|
| 24. |
Severability.
If any provision of this Agreement shall be held to be invalid, illegal,
or unenforceable:
|
| a. |
The
validity, legality, and enforceability of the remaining provisions
of this
Agreement shall not be in any way effected or impaired thereby; and
|
| b. |
To
the fullest extent possible, the provisions of this Agreement shall
be
construed so as to give effect to the intent manifested by the provision
held invalid, illegal, or unenforceable. Each section of this Agreement
is
a separate and independent portion of this Agreement. If the
indemnification to which Indemnitee is entitled as respects any aspect
of
any claim varies between two or more sections of this Agreement, that
section providing the most comprehensive indemnification shall apply.
|
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| 25. |
Notice.
Any notice, demand, request, or other communication permitted or required
under this Agreement shall be in writing and shall be deemed to have
been
given as of the date so delivered, if personally served; as of the
date so
sent, if transmitted by facsimile and receipt is confirmed by the
facsimile operator of the recipient; as of the date so sent, if sent
by
electronic mail and receipt is acknowledged by the recipient; one day
after the date so sent, if delivered by overnight courier service;
or
three days after the date so mailed, if mailed by certified mail, return
receipt requested, addressed as follows:
|
| If to the Corporation: |
Along
Mobile Technologies
Xx.00,
0X Xxxxxxxxxx Xxxxxxx,
Xxxxxxx
Part Of 2nd South Ring Road,
Xi'an,Shaanxi
Province 710065
China
|
|
| If to Indemnitee, to: | Xxxx Xxxx
_________________________________
_________________________________
_________________________________
Tel:
Facsimile:
|
or
such
other addresses, facsimile numbers, or electronic mail address as shall be
furnished in writing by any party in the manner for giving notices hereunder.
IN
WITNESS WHEREOF, the Corporation and Indemnitee hereto have executed this
Agreement as of the day and year first above written to be effective as of
the
Effective Date.
|
Corporation:
ALONG
MOBILE TECHNNOLOGIES, INC.
|
||
| |
|
|
|
By:
Xx Xxxxxxx
Title:
CEO and President
|
||
|
Indemnitee:
|
||
| |
|
|
|
Xxxx
Xxxx, Director
|
||
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