OMNIALUO, INC. NON-OFFICER DIRECTOR’S CONTRACT
NON-OFFICER
DIRECTOR’S CONTRACT
THIS
AGREEMENT (the “Agreement”) is made as of the ___ day of January, 2008 and is by
and between OmniaLuo, Inc., a Delaware corporation (hereinafter referred to
as
“Company”) and [________]
(hereinafter referred to as “Director”).
BACKGROUND
The
Board
of Directors of the Company desires to appoint Director to fill an existing
vacancy and to have the Director perform the duties of a director and Director
desires to be so appointed for such position and to perform the duties required
of such position in accordance with the terms and conditions of this
Agreement.
AGREEMENT
In
consideration for the above recited promises and the mutual promises contained
herein, the adequacy and sufficiency of which are hereby acknowledged, Company
and Director hereby agree as follows:
1. DUTIES.
The
Company requires that the Director be available to perform the customary duties
of a director and such other duties customarily related to this function as
may
be determined and assigned by the Board of Directors of the Company and as
may
be required by the Company’s constituent instruments, including its certificate
or articles of incorporation, bylaws and its corporate governance and board
committee charters, each as amended or modified from time to time, and by
applicable law, including the General Corporation Law of the State of Delaware
(“DGCL”). Director agrees to devote as much time as is necessary to perform
completely the duties as Director of the Company, including duties as a member
of the Audit, Compensation and Nominating and Governance Committees and such
other committees as the Director may hereafter be appointed to. The Director
will perform such duties described herein in accordance with the general
fiduciary duty of Directors arising under the DGCL.
2. TERM.
The
term of this Agreement shall commence as of the date of the Director’s
appointment by the board of directors of the Company (in the event the Director
is appointed to fill a vacancy) or the date of the Director’s election by the
stockholders of the Company and shall continue until the Director’s removal or
resignation. Each 12-month period ending on the anniversary date of the
Director’s appointment is a “Service Year.”
3. COMPENSATION.
For all
services to be rendered by Director in any capacity hereunder, the Company
agrees to pay Director a fee of $12,000 in cash per Service Year payable in
equal quarterly installments (the “Compensation”) throughout the Company’s
fiscal year. The initial year’s Compensation is considered earned when paid and
is nonrefundable. Upon execution of this Agreement, the Company shall pay to
the
Director a pro rata portion of the initial Service Year’s Compensation described
above (pro-rated for the remaining portion of the Company’s then-current fiscal
year). Thereafter, payment shall be due on or before the first business day
of
the Company’s next fiscal year and in succeeding fiscal quarters as described
above. Such Compensation may be adjusted from time to time as agreed by the
parties.
4. EXPENSES.
In
addition to the compensation provided in paragraph 3 hereof, the Company will
reimburse Director for pre-approved reasonable business related expenses
incurred in good faith in the performance of Director’s duties for the Company.
Such payments shall be made by the Company upon submission by the Director
of a
signed statement itemizing the expenses incurred. Such statement shall be
accompanied by sufficient documentary matter to support the
expenditures.
5. CONFIDENTIALITY.
The
Company and Director each acknowledge that, in order for the intents and
purposes of this Agreement to be accomplished, Director shall necessarily be
obtaining access to certain confidential information concerning the Company
and
its affairs, including, but not limited to business methods, information
systems, financial data and strategic plans which are unique assets of the
Company (“Confidential Information”). Director covenants not to, either directly
or indirectly, in any manner, utilize or disclose to any person, firm,
corporation, association or other entity any Confidential
Information.
6. NON-COMPETE.
During
the Term and for a period of twelve (12) months following the Director’s removal
or resignation from the Board of Directors of the Company or any of its
Subsidiaries or Affiliates (the “Restricted Period”), the Director shall not,
directly or indirectly, (i) in any manner whatsoever engage in any capacity
with
any business competitive with the Company's current lines of business or any
business then engaged in by the Company, any of its Subsidiaries or any of
its
Affiliates (the “Company’s Business”) for the Director’s own benefit or for the
benefit of any person or entity other than the Company or any Subsidiary or
Affiliate; or (ii) have any interest as owner, sole proprietor, stockholder,
partner, lender, director, officer, manager, employee, consultant, agent or
otherwise in any business competitive with the Company's Business; provided,
however,
that
the Director may hold, directly or indirectly, solely as an investment, not
more
than one percent (1%) of the outstanding securities of any person or entity
which are listed on any national securities exchange or regularly traded in
the
over-the-counter market notwithstanding the fact that such person or entity
is
engaged in a business competitive with the Company's Business. In addition,
during the Restricted Period, the Director shall not develop any property for
use in the Company's Business on behalf of any person or entity other than
the
Company, its Subsidiaries and Affiliates.
7. TERMINATION.
With or
without cause, the Company and Director may each terminate this Agreement at
any
time upon ten (10) days written notice, and the Company shall be obligated
to
pay to Director the compensation and expenses due up to the date of the
termination. If the director voluntarily resigns prior to October 1st
of any
year after the first year of this agreement, the Company shall be entitled
to
receive, upon written request by the Company, a prorated refund of the portion
of the Compensation that relates to the period after the termination date.
Such
written request must be submitted within ninety (90) days of the termination
date. Nothing contained herein or omitted herefrom shall prevent the
stockholder(s) of the Company from removing Director with immediate effect
at
any time for any reason.
8. INDEMNIFICATION.
The
Company shall indemnify, defend and hold harmless Director, to the full extent
allowed by the law of the State of Delaware, and as provided by, or granted
pursuant to, any charter provision, bylaw provision, agreement (including,
without limitation, the Indemnification Agreement executed herewith), vote
of
stockholders or disinterested directors or otherwise, both as to action in
Director’s official capacity and as to action in another capacity while holding
such office. The Company and the Director are executing the Indemnification
Agreement in the form attached hereto as Exhibit A.
9. EFFECT
OF WAIVER.
The
waiver by either party of the breach of any provision of this Agreement shall
not operate as or be construed as a waiver of any subsequent breach
thereof.
10. NOTICE.
Any and
all notices referred to herein shall be sufficient if furnished in writing
at
the addresses specified on the signature page hereto or, if to the Company,
to
the Company’s address as specified in filings made by the Company with the U.S.
Securities and Exchange Commission and if by fax to 000.000.0000.
11. GOVERNING
LAW.
This
Agreement shall be interpreted in accordance with, and the rights of the parties
hereto shall be determined by, the laws of the State of Delaware without
reference to that state’s conflicts of laws principles.
12. ASSIGNMENT.
The
rights and benefits of the Company under this Agreement shall be transferable,
and all the covenants and agreements hereunder shall inure to the benefit of,
and be enforceable by or against, its successors and assigns. The duties and
obligations of the Director under this Agreement are personal and therefore
Director may not assign any right or duty under this Agreement without the
prior
written consent of the Company.
13. MISCELLANEOUS.
If any
provision of this Agreement shall be declared invalid or illegal, for any reason
whatsoever, then, notwithstanding such invalidity or illegality, the remaining
terms and provisions of the within this Agreement shall remain in full force
and
effect in the same manner as if the invalid or illegal provision had not been
contained herein.
14. ARTICLE
HEADINGS.
The
article headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this
Agreement.
15. COUNTERPARTS.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one instrument. Facsimile execution and delivery
of
this Agreement is legal, valid and binding for all purposes.
16. ENTIRE
AGREEMENT. Except
as
provided elsewhere herein, this Agreement sets
forth the entire agreement of the parties with respect to
its
subject
matter and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by
any
officer, employee or representative of any party to this
Agreement with respect
to
such
subject matter.
[intentionally
left blank - signature page to follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Non-Officer Director’s
Contract to be duly executed and signed as of the day and year first above
written.
EXHIBIT
A
INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT
(this
“Agreement”)
is
made and entered into as of January __, 2008 between OMNIALUO,
INC.,
a
Delaware corporation (the “Company”),
and
___________________
(the
“Indemnitee”).
Definitions of certain capitalized terms are set forth in Section 13
hereof.
WITNESSETH
THAT:
WHEREAS,
highly
competent persons have become more reluctant to serve corporations as directors
or in other capacities unless they are provided with adequate protection through
insurance or adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf
of
the corporation; and
WHEREAS,
the
Board of Directors of the Company (the “Board”)
has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. Although the furnishing of such insurance has been
a
customary and widespread practice among corporations publicly traded in the
United States and other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be available to it
in
the future only at higher premiums and with more exclusions. At the same time,
directors, officers, and other persons in service to corporations or business
enterprises are being increasingly subjected to expensive and time-consuming
litigation relating to, among other things, matters that traditionally would
have been brought only against the Company or business enterprise itself. The
Bylaws of the Company require indemnification of the officers and directors
of
the Company. Indemnitee may also be entitled to indemnification pursuant to
the
General Corporation Law of the State of Delaware (“DGCL”).
The
Bylaws and the DGCL expressly provide that the indemnification provisions set
forth therein are not exclusive, and thereby contemplate that contracts may
be
entered into between the Company and members of the board of directors, officers
and other persons with respect to indemnification; and
WHEREAS,
the
uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons; and
WHEREAS,
the
Board has determined that the increased difficulty in attracting and retaining
such persons is detrimental to the best interests of the Company’s stockholders
and that the Company should act to assure such persons that there will be
increased certainty of such protection in the future; and
WHEREAS,
it is
reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to
the
fullest extent permitted by applicable law so that they will serve or continue
to serve the Company free from undue concern that they will not be so
indemnified; and
WHEREAS,
this
Agreement is a supplement to and in furtherance of the Bylaws of the Company
and
any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;
and
WHEREAS,
Indemnitee may not regard the protection available under the Company’s Bylaws
and insurance as adequate in the present circumstances, and may not be willing
to serve as an officer or director without adequate protection, and the Company
desires Indemnitee to serve in such capacity. Indemnitee is willing to serve,
continue to serve and to take on additional service for or on behalf of the
Company on the condition that he be so indemnified;
NOW,
THEREFORE,
in
consideration of Indemnitee’s agreement to serve as a director after the date
hereof, the parties hereto agree as follows:
1. Indemnity
of Indemnitee.
The
Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest
extent permitted by law, as such may be amended from time to time. In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:
(a) Proceedings
Other Than Proceedings by or in the Right of the
Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section
l(a)
if, by
reason of his Corporate Status, the Indemnitee is, or is threatened to be made,
a party to or participant in any Proceeding other than a Proceeding by or in
the
right of the Company. Pursuant to this Section
1(a),
Indemnitee shall be indemnified against all Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by him,
or
on his behalf, in connection with such Proceeding or any claim, issue or matter
therein, if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal Proceeding, had no reasonable cause
to
believe the Indemnitee’s conduct was unlawful.
(b) Proceedings
by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section
1(b)
if, by
reason of his Corporate Status, the Indemnitee is, or is threatened to be made,
a party to or participant in any Proceeding brought by or in the right of the
Company. Pursuant to this Section
1(b),
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection with
such Proceeding if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests
of
the Company; provided, however, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company unless and to the extent that any court
of
competent jurisdiction shall determine that such indemnification may be
made.
(c) Indemnification
for Expenses of a Party Who is Wholly or Partly
Successful.
If and
to the extent that Indemnitee is, by reason of his Corporate Status, a party
to
and is successful, on the merits or otherwise, in any Proceeding, he shall
be
indemnified to the maximum extent permitted by law, as such may be amended
from
time to time, against all Expenses actually and reasonably incurred by him
or on
his behalf in connection therewith. If Indemnitee is not wholly successful
in
such Proceeding but is successful, on the merits or otherwise, as to one or
more
but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to
such
claim, issue or matter.
2. Additional
Indemnity.
In
addition to, and without regard to any limitations on, the indemnification
provided for in Section
1
of this
Agreement, the Company shall and hereby does indemnify and hold harmless
Indemnitee against all Expenses, judgments, penalties, fines and amounts paid
in
settlement actually and reasonably incurred by him or on his behalf if, by
reason of his Corporate Status, he is, or is threatened to be made, a party
to
or participant in any Proceeding (including a Proceeding by or in the right
of
the Company), including, without limitation, all liability arising out of the
negligence or active or passive wrongdoing of Indemnitee. Except as set forth
in
Section 9, the only limitation that shall exist upon the Company’s obligations
pursuant to this Agreement shall be that the Company shall not be obligated
to
make any payment to Indemnitee that is finally determined (under the procedures,
and subject to the presumptions, set forth in Section
6
and
Section
7
hereof)
to be unlawful.
3. Contribution.
(a) Whether
or not the indemnification provided in Section
1
and
Section
2
hereof
is available, in respect of any threatened, pending or completed action, suit
or
proceeding in which the Company is jointly liable with Indemnitee (or would
be
if joined in such action, suit or proceeding), the Company shall pay, in the
first instance, the entire amount of any judgment or settlement of such action,
suit or proceeding without requiring Indemnitee to contribute to such payment
and the Company hereby waives and relinquishes any right of contribution it
may
have against Indemnitee. The Company shall not enter into any settlement of
any
action, suit or proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding) unless
such settlement provides for a full and final release of all claims asserted
against Indemnitee.
(b) Without
diminishing or impairing the obligations of the Company set forth in the
preceding subparagraph, if, for any reason, Indemnitee shall elect or be
required to pay all or any portion of any judgment or settlement in any
threatened, pending or completed action, suit or proceeding in which the Company
is jointly liable with Indemnitee (or would be if joined in such action, suit
or
proceeding), the Company shall contribute to the amount of expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company and all officers, directors or
employees of the Company, other than Indemnitee, who are jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, from the transaction from which
such action, suit or proceeding arose; provided, however, that the proportion
determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the
Company and all officers, directors or employees of the Company other than
Indemnitee who are jointly liable with Indemnitee (or would be if joined in
such
action, suit or proceeding), on the one hand, and Indemnitee, on the other
hand,
in connection with the events that resulted in such expenses, judgments, fines
or settlement amounts, as well as any other equitable considerations which
the
law may require to be considered. The relative fault of the Company and all
officers, directors or employees of the Company, other than Indemnitee, who
are
jointly liable with Indemnitee (or would be if joined in such action, suit
or
proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary and the degree to which
their conduct is active or passive.
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from
any
claims of contribution which may be brought by officers, directors or employees
of the Company, other than Indemnitee, who may be jointly liable with
Indemnitee.
(d) To
the
fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever,
the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, in connection
with
any claim relating to an indemnifiable event under this Agreement, in such
proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect (i) the relative benefits received by
the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of the Company (and
its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
4. Indemnification
for Expenses of a Witness.
If and
to the extent that Indemnitee is, by reason of his Corporate Status, a witness
in any Proceeding to which Indemnitee is not a party, he shall be indemnified
against all Expenses actually and reasonably incurred by him or on his behalf
in
connection therewith.
5. Advancement
of Expenses.
Notwithstanding any other provision of this Agreement, but subject at all times
to Section 9, with respect to a Proceeding in which the Company is notified
of
and which the Company does not assume defense of, the Company shall pay in
advance of the final disposition of the Proceeding all Expenses actually
incurred by Indemnitee in connection with such Proceeding by reason of
Indemnitee’s Corporate Status within sixty (60) days after the receipt by the
Company of a statement or statements from Indemnitee which shall reasonably
evidence the Expenses actually incurred by Indemnitee and shall include or
be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to
repay
any Expenses advanced if it shall ultimately be determined that Indemnitee
is
not entitled to be indemnified against such Expenses. Any advances and
undertakings to repay pursuant to this Section
5
shall be
unsecured and interest free.
6. Procedures
and Presumptions for Determination of Entitlement to
Indemnification.
It is
the intent of this Agreement to secure for Indemnitee rights of indemnity that
are as favorable as may be permitted under the DGCL and public policy of the
State of Delaware. Accordingly, the parties agree that the following procedures
and presumptions shall apply in the event of any question as to whether
Indemnitee is entitled to indemnification under this Agreement:
(a) To
obtain
indemnification under this Agreement, Indemnitee shall submit to the Company
a
written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, as soon as reasonably
practicable after receipt of such a request for indemnification, advise the
Board in writing that Indemnitee has requested indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section
6(a)
hereof,
a determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following
five methods, which shall be at the election of the Board: (1) by a majority
vote of a quorum of the directors consisting of the Disinterested Directors,
(2)
if there no such quorum is obtainable, by a majority vote of a committee of
one
or more Disinterested Directors, (3) by a majority vote of a quorum of the
outstanding shares of stock of all classes entitled to vote for directors,
voting as a single class, which quorum shall consist of stockholders which
are
not at that time parties to the action, suit or proceeding in question, (4)
by
Independent Counsel in a written opinion to the Board, a copy of which shall
be
delivered to the Indemnitee, or (5) by a court of competent
jurisdiction.
(c) If
the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section
6(b)
hereof,
the Independent Counsel shall be selected as provided in this Section
6(c).
The
Independent Counsel shall be selected by the Board. Indemnitee may, within
ten
(10) days after such written notice of selection shall have been given, deliver
to the Company, as the case may be, a written objection to such selection;
provided, however, that such objection may be asserted only on the ground that
the Independent Counsel so selected does not meet the requirements of
“Independent
Counsel”
as
defined in Section
13
of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court of competent
jurisdiction has determined that such objection is without merit. If, within
twenty (20) days after submission by Indemnitee of a written request for
indemnification pursuant to Section
6(a) hereof,
no Independent Counsel shall have been selected and not objected to, either
the
Company or Indemnitee may petition any court of competent jurisdiction for
resolution of any objection which shall have been made by the Indemnitee to
the
Company’s selection of Independent Counsel and/or for the 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 all
objections are so resolved or the person so appointed shall act as Independent
Counsel under Section
6(b)
hereof.
The Company shall pay any and all reasonable fees and expenses of Independent
Counsel actually incurred by such Independent Counsel in connection with acting
pursuant to Section
6(b)
hereof,
and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section
6(c),
regardless of the manner in which such Independent Counsel was selected or
appointed.
(d) Unless
otherwise provided by law, the burden of proving that Indemnitee is not entitled
to indemnification or advancement of expenses under this Agreement shall be
on
the Company, as determined pursuant to Section
6(b)
by clear
and convincing evidence. Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior
to
the commencement of any action pursuant to this Agreement that indemnification
is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including
by
its directors or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create
a
presumption that Indemnitee has not met the applicable standard of conduct.
(e) Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on
information supplied to Indemnitee by the officers of the Enterprise in the
course of their duties, or on the advice of legal counsel for the Enterprise
or
on information or records given or reports made to the Enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Enterprise, unless Indemnitee reasonably
should have known that such records, books, financial statement, information,
advice and/or reports were false. In addition, the knowledge and/or actions,
or
failure to act, of any director, officer, agent or employee of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
(f) The
person, persons or entity empowered or selected under Section
6
to
determine whether Indemnitee is entitled to indemnification shall make such
determination within sixty (60) days after receipt by the Company of the request
therefor. The right to indemnification or advances as granted by this Agreement
shall be enforceable by the Indemnitee in any court of competent jurisdiction
if
the Company denies such request, in whole or in part, or if no disposition
thereof is made within such aforementioned 60-day period referred to above.
Unless otherwise provided by law, the burden of proving that the Indemnitee
is
not entitled to indemnification or advancement of expenses under this Agreement
shall be on the Company. Neither the failure of the Company to have made a
determination prior to the commencement of such action that indemnification
is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Company pursuant to this
Agreement that the Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has
not
met the applicable standard of conduct. The Indemnitee’s reasonable expenses
(including attorneys’ fees) incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Company.
(g) Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any Independent Counsel, member of the Board
or
stockholder of the Company shall act reasonably and in good faith in making
a
determination regarding the Indemnitee’s entitlement to indemnification under
this Agreement. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee’s entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(h) The
Company acknowledges that a settlement or other disposition short of final
judgment may be successful if it permits a party to avoid expense, delay,
distraction, disruption and uncertainty. If any action, suit or proceeding
is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the Indemnitee, (ii)
an
adjudication that the Indemnitee was liable to the Company, (iii) a plea of
guilty or nolo
contendere
by the
Indemnitee, (iv) an adjudication that the Indemnitee did not act in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Company, and (v) with respect to any criminal proceeding,
an
adjudication that the Indemnitee had reasonable cause to believe his conduct
was
unlawful, the Indemnitee shall be considered for the purpose hereof to have
been
wholly successful with respect thereto.
(i) The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere
or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed
to
the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was
unlawful.
7. Remedies
of Indemnitee.
(a) In
the
event that (i) a determination is made pursuant to Section
6
of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section
5
of this
Agreement, (iii) payment of indemnification is not made pursuant to this
Agreement within ten (10) days after receipt by the Company of a written request
therefor or (iv) payment of indemnification is not made within ten (10) days
after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant
to
Section
6
of this
Agreement, Indemnitee shall be entitled to an adjudication in an appropriate
court of competent jurisdiction, of Indemnitee’s entitlement to such
indemnification. Indemnitee shall commence such proceeding seeking adjudication
within one hundred eighty (180) days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section
7(a).
(b) In
the
event that a determination shall have been made pursuant to Section
6(b)
of this
Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section
7
shall be
conducted in all respects as a de novo trial on the merits, and Indemnitee
shall
not be prejudiced by reason of the adverse determination under Section
6(b).
(c) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior
to
the final disposition of the Proceeding.
(d) With
respect to any Proceeding of which the Company is so notified, the Company
will
be entitled to participate therein at its own expense and/or to assume the
defense thereof at its own expense, with legal counsel reasonably acceptable
to
the Indemnitee. If the Company assumes the defense in any Proceeding, the
Indemnitee shall have the right to employ its own counsel in connection with
such Proceeding and the reasonable fees and expenses one such counsel for the
Indemnitee shall be at the expense of the Company (except as expressly provided
in this Agreement) if (x) the employment of counsel by the Indemnitee has been
authorized by the Board, (y) counsel to the Indemnitee shall have issued a
written opinion reasonably concluding that there is an actual conflict of
interest on any significant issue between the Company and the Indemnitee in
the
conduct of the defense in such Proceeding or (z) the Company shall not in fact
have employed counsel to assume the defense in such Proceeding. The Company
shall not be entitled, without the consent of the Indemnitee, to assume the
defense of any claim brought by or in the right of the Company or as to which
counsel for the Indemnitee shall have reasonably made the conclusion provided
for in clause (y) above.
8. Non-Exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The
rights of indemnification as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the certificate of incorporation of the Company, the
Bylaws, any agreement, a vote of stockholders, a resolution of directors or
otherwise. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. To the extent
that a change in the DGCL, whether by statute or judicial decision, permits
greater indemnification than would be afforded currently under the certificate
of incorporation of the Company, the Bylaws and this Agreement, it is the intent
of the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right
and
remedy shall be cumulative and in addition to every other right and remedy
given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or
remedy.
(b) To
the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or fiduciaries
of the Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise that such person serves at the request
of the Company, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
available for any director, officer, employee, agent or fiduciary under such
policy or policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the commencement
of
such proceeding to the insurers in accordance with the procedures set forth
in
the respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all
amounts payable as a result of such proceeding in accordance with the terms
of
such policies.
(c) In
the
event of any 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 papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee is
otherwise entitled to or has actually received such payment under any insurance
policy, contract, agreement or otherwise.
(e) The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
employee or agent of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise shall be reduced by any amount
Indemnitee is entitled to or has actually received as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
9. Exception
to Right of Indemnification.
Notwithstanding any provision in this Agreement to the contrary, the Company
shall not be obligated under this Agreement to indemnify the Indemnitee or
make
any payment to the Indemnitee, arising out of or in connection with any
Expenses, judgments, penalties, fines and/or amounts paid in settlement of
or by
Indemnitee (including, but not limited to the advancement of Expenses under
Section 5):
(a) for
which
payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond
the amount paid under any insurance policy or other indemnity provision;
or
(b) for
an
accounting of profits made from the purchase and sale (or sale and purchase)
by
Indemnitee of securities of the Company within the meaning of Section 16(b)
of
the Securities Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law;
(c) in
connection with any Proceeding (or any part of any Proceeding) initiated by
Indemnitee, including any Proceeding (or any part of any Proceeding) initiated
by Indemnitee against the Company or any Enterprise or its or their respective
directors, officers, employees or other indemnitees, unless (i) the Board
authorized the Proceeding (or the relevant part of any Proceeding) prior to
its
initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable law;
(d)
in
which
a court of competent jurisdiction establishes that Indemnitee’s acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the claim so adjudicated, or that Indemnitee personally
gained in fact a financial profit or other advantage to which he was not legally
entitled.
10. Duration
of Agreement.
All
agreements and obligations of the Company contained herein shall continue during
the period Indemnitee is an officer or director of the Company (or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise)
and shall continue thereafter so long as Indemnitee shall be subject to any
Proceeding (or any proceeding commenced under Section
7
hereof)
by reason of his Corporate Status, whether or not he is acting or serving in
any
such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement. This Agreement shall
be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs, executors and personal and legal representatives.
11. Security.
To the
extent requested by Indemnitee and approved by the Board, the Company may at
any
time and from time to time provide security to Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit, funded trust
or other collateral. Any such security, once provided to Indemnitee, may not
be
revoked or released without the prior written consent of the
Indemnitee.
12. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumes the obligations imposed on it hereby in order to induce Indemnitee
to serve as an officer or director of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as an officer or
director of the Company.
(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
13. Definitions.
For
purposes of this Agreement:
(a) “Corporate
Status”
describes the status of a person who is or was a director, officer, employee,
agent or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise that such person
is or was serving at the express written request of the Company.
(b) “Disinterested
Director”
means
a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(c) “Enterprise”
shall
mean the Company and any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise that Indemnitee is or was serving
at
the express written request of the Company as a director, officer, employee,
agent or fiduciary.
(d) “Expenses”
shall
include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, participating, or being or preparing to be a witness in a
Proceeding. Expenses also shall include Expenses incurred in connection with
any
appeal resulting from any Proceeding, including without limitation the premium,
security for, and other costs relating to any cost bond, supersede as bond,
or
other appeal bond or its equivalent. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(e) “Independent
Counsel”
means
a
law firm, or a member of a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past five (5) years has
been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters concerning
Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), 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 Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement. The Company agrees
to pay the reasonable fees of the Independent Counsel referred to above and
to
fully indemnify such counsel against any and all Expenses, claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
(f) “Proceeding”
includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether brought
by or in the right of the Company or otherwise and whether civil, criminal,
administrative or investigative, in which Indemnitee was, is or will be involved
as a party or otherwise, by reason of the fact that Indemnitee is or was an
officer or director of the Company, by reason of any action taken by him or
of
any inaction on his part while acting as an officer or director of the Company,
or by reason of the fact that he is or was serving at the request of the Company
as a director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other Enterprise; in each case whether
or
not he is acting or serving in any such capacity at the time any liability
or
expense is incurred for which indemnification can be provided under this
Agreement; including one pending on or before the date of this Agreement, but
excluding any initiated by Indemnitee, including, but not limited to, initiated
by Indemnitee pursuant to Section
7
of this
Agreement to enforce his rights under this Agreement.
14. Severability.
The
invalidity of unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision. Without limiting the
generality of the foregoing, this Agreement is intended to confer upon
Indemnitee indemnification rights to the fullest extent permitted by applicable
laws. In the event any provision hereof conflicts with any applicable law,
such
provision shall be deemed modified, consistent with the aforementioned intent,
to the extent necessary to resolve such conflict.
15. Modification
and Waiver.
No
supplement, modification, termination or amendment of this Agreement shall
be
binding unless executed in writing by both of the 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.
16. Notice
By Indemnitee.
Indemnitee agrees promptly to notify the Company in writing upon being served
with or otherwise receiving any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter
which may be subject to indemnification covered hereunder. The failure to so
notify the Company shall not relieve the Company of any obligation which it
may
have to Indemnitee under this Agreement or otherwise unless and only to the
extent that such failure or delay materially prejudices the
Company.
17. Notices.
All
notices, requests, consents and other communications required or permitted
hereunder shall be in writing and shall be mailed by first-class, registered
or
certified mail, postage prepaid, or delivered either by hand, by messenger
or by
recognized overnight courier (with signature required), or sent via facsimile,
computer mail or other electronic means from which a record may be created.
All
communications shall be sent:
| (a) |
To
Indemnitee at the address set forth below Indemnitee signature
hereto.
|
|
(b)
|
To
the Company at:
|
Xxxx
000,
Xxxxxxxx X0, Xxxxxxxxxxxx
Xxxx
Industrial Park,
Nanshan
District, Shenzhen, 518053
Attn:
Xx.
Xxxxx Xxx
Facsimile:
[____________]
Email:
xxxxx-xxx@000.xxx
or
to
such other address as may have been furnished to Indemnitee by the Company
or to
the Company by Indemnitee, as the case may be. All notices and other
communications given or made pursuant to this Agreement shall be deemed
effectively given when delivered in the manner set forth above and when actually
received or when receipt is refused, it being understood by the parties that
a
confirmation of receipt for the addressee provided by a recognized overnight
courier service shall constitute actual receipt by such addressee for purposes
of such notice.
18. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
Agreement. This Agreement may also be executed and delivered by facsimile
signature and in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
19. Headings.
The
headings of the paragraphs 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.
20. Governing
Law and Consent to Jurisdiction.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, and with respect to matters regarding the
DGCL, the laws of the State of Delaware, without regards to their respective
conflict of law principles.
Each of
the parties hereto irrevocably consents to the exclusive jurisdiction and venue
of any court within the State of Delaware, in connection with any matter based
upon or arising out of this Agreement or the matters contemplated herein, agrees
that process may be served upon them in any manner authorized by the laws of
the
State of Delaware for such persons.
[intentionally
left blank - signature page to follow]
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement on and as of the day and year first
above written.
|
COMPANY
|
||
| |
|
|
| By: | ||
|
Name: Xxxxx Xxx |
||
| Title: CEO and Chairwoman | ||
| INDEMNITEE | ||
| |
|
|
|
|
||
|
Address:
[ ]
|
||
[Signature
Page to Indemnification Agreement]
