INTERMETRO COMMUNICATIONS, INC. FORM OF INDEMNIFICATION AGREEMENT
Exhibit
10.9
INTERMETRO
COMMUNICATIONS, INC.
FORM
OF INDEMNIFICATION AGREEMENT
This
Indemnification Agreement
(“Agreement”) is made as of April , 2006 by and
between InterMetro Communications, Inc., a Delaware corporation (the “Company”),
and
(“Indemnitee”).
RECITALS
A.
The Company and Indemnitee
recognize the significant cost of directors’ and officers’ liability insurance
and the general reductions in the coverage of such insurance.
B.
The Company and Indemnitee
further recognize the substantial increase in corporate litigation in general,
subjecting officers and directors to expensive litigation risks at the same
time
as the coverage of liability insurance has been severely limited.
C.
The Company desires to attract
and retain the services of highly qualified individuals, such as Indemnitee,
to
serve as officers and directors of the Company and to indemnify its officers
and
directors so as to provide them with the maximum protection permitted by law.
NOW,
THEREFORE, in consideration for Indemnitee’s services as an officer
or director of the Company, the Company and Indemnitee hereby agree as follows:
1.
Indemnification.
(a)
Third
Party Proceedings.
The Company shall indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or completed action,
suit, proceeding or any alternative dispute resolution mechanism, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any subsidiary of the
Company, or by reason of the fact that Indemnitee 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, against
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement (if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) actually and reasonably incurred
by
Indemnitee in connection with such action, suit or 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 Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or
its equivalent, shall not, of itself, 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 Company, and, with respect to any criminal action
or
proceeding, had reasonable cause to believe that Indemnitee’s conduct was
unlawful.
(b)
Proceedings
By or in the
Right of the Company. The Company shall indemnify Indemnitee if Indemnitee
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Company or any subsidiary
of the Company to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Company,
or
any subsidiary of the Company, or by reason of the fact that Indemnitee 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, against expenses (including attorneys’ fees) and, to the fullest
extent permitted by law, amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
action or suit 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
Company, except that no indemnification shall be made in respect of any claim,
issue or matter as to which Indemnitee shall have been adjudged to be liable
to
the Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in
view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery of the
State
of Delaware or such other court shall deem proper.
(c)
Mandatory
Payment of
Expenses. To the extent that Indemnitee has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
Subsections (a) and (b) of this Section 1, or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by Indemnitee in
connection therewith.
2.
Advancement
of
Expenses. All reasonable Expenses incurred by or on behalf of
Indemnitee (including costs of enforcement of this Agreement) shall be advanced
from time to time by the Company to Indemnitee within thirty (30) days
after the receipt by the Company of a written request for an advance of
Expenses, whether prior to or after final disposition of a Proceeding (except
to
the extent that there has been a final adverse determination that Indemnitee
is
not entitled to be indemnified for such Expenses), including without limitation
any Proceeding brought by or in the right of the Company. The written request
for an advancement of any and all Expenses under this paragraph shall contain
reasonable detail of the Expenses incurred by Indemnitee. By execution of this
Agreement, Indemnitee shall be deemed to have made whatever undertaking as
may
be required by law at the time of any advancement of Expenses with respect
to
repayment to the Company of such Expenses. In the event that the Company shall
breach its obligation to advance Expenses under this Section 2, the parties
hereto agree that Indemnitee’s remedies available at law would not be adequate
and that Indemnitee would be entitled to specific performance.
3.
Presumptions
and
Effect of Certain Proceedings. Upon making a request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
under this Agreement and the Company shall have the burden of proof to overcome
that presumption in reaching any contrary
determination. The termination of any Proceeding by
judgment, order, settlement, arbitration award or conviction, or upon a plea
of
nolo contendere or its equivalent shall not affect this presumption or, except
as determined by a judgment or other final adjudication adverse to Indemnitee,
establish a presumption with regard to any factual matter relevant to
determining Indemnitee’s rights to indemnification hereunder. If the person or
persons so empowered to make a determination pursuant to Section 4 hereof
shall have failed to make the requested determination within sixty
(60) days after any judgment, order, settlement, dismissal, arbitration
award, conviction, acceptance of a plea of nolo contendere or its equivalent,
or
other disposition or partial disposition of any Proceeding or any other event
that could enable the Company to determine Indemnitee’s entitlement to
indemnification, the requisite determination that Indemnitee is entitled to
indemnification shall be deemed to have been made.
4.
Procedure
for
Determination of Entitlement to Indemnification.
(a)
Notice/Cooperation
by
Indemnitee. Indemnitee shall, as a condition precedent to his right to be
indemnified under this Agreement, give the Company notice in writing as soon
as
practicable of any claim made against Indemnitee for which indemnification
will
or could be sought under this Agreement. Notice to the Company shall be directed
to the President of the Company at the address shown on the signature page
of
this Agreement (or such other address as the Company shall designate in writing
to Indemnitee). Notice shall be deemed received three business days after the
date postmarked if sent by domestic certified or registered mail, properly
addressed, five business days if sent by airmail to a country outside of North
America; otherwise notice shall be deemed received when such notice shall
actually be received by the Company. In addition, Indemnitee shall give the
Company such information, documentation and cooperation as it may reasonably
require and as shall be within Indemnitee’s power.
(b)
Procedure.
Any
indemnification and advances provided for in Section 1 and Section 2
shall be made no later than thirty (30) days after receipt of the written
request of Indemnitee; provided, in the case of any request for indemnification,
the Company has determined that Indemnitee is entitled to indemnification
hereunder. If a claim under this Agreement, under any statute, or under any
provision of the Company’s Certificate of Incorporation or Bylaws providing for
indemnification, is not paid in full by the Company within thirty (30) days
after a written request for payment thereof has first been received by the
Company, Indemnitee may, but need not, at any time thereafter bring an action
against the Company to recover the unpaid amount of the claim and, subject
to
Section 14 of this Agreement, Indemnitee shall also be entitled to be paid
for the expenses (including attorneys’ fees) of bringing such action. It shall
be a defense to any such action (other than an action brought to enforce a
claim
for expenses incurred in connection with any action, suit or proceeding in
advance of its final disposition) that Indemnitee has not met the standards
of
conduct which make it permissible under applicable law for the Company to
indemnify Indemnitee for the amount claimed. However, Indemnitee shall be
entitled to receive interim payments of expenses pursuant to Section 2
unless and until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. It is the parties’
intention that if the Company contests Indemnitee’s right to indemnification,
the question of
Indemnitee’s right to indemnification shall be for the court to decide, and
neither the failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel,
or
its stockholders) to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by applicable law, nor an actual
determination by the Company (including it Board of Directors, any committee
or
subgroup of the Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee has not met such applicable standard of conduct,
shall create a presumption that Indemnitee has or has not met the applicable
standard of conduct.
(c)
Change
in Control. The
Company agrees that if there is a Change in Control of the Company then with
respect to all matters thereafter arising concerning the rights of Indemnitee
to
indemnity payments and Expense advances under this Agreement or any other
agreement, the Bylaws or Certificate of Incorporation now or hereafter in
effect, the Company shall seek legal advice only from special independent
counsel selected by the Company and approved by Indemnitee (which approval
shall
not be unreasonably withheld or delayed) and who has not otherwise performed
services for the Company within the last five years (other than in connection
with such matters) or for Indemnitee. In the event that Indemnitee and the
Company are unable to agree on the selection of the special independent counsel,
such special independent counsel shall be selected by lot from among at least
five law firms with offices in the State of California having more than fifty
attorneys, having a rating of “av” or better in the then current Martindale
Xxxxxxx Law Directory and having attorneys who specialize in corporate law.
Such
selection shall be made in the presence of Indemnitee (and his legal counsel
or
either of them, as Indemnitee may elect). Such special independent counsel,
among other things, shall, within 90 days of its retention, render its written
opinion to the Company and Indemnitee as to whether and to what extent
Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the special independent counsel
and
to fully indemnify such counsel against any and all expenses (including
attorneys’ fees), claims, liabilities, and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.
(d)
Notice
to Insurers. If,
at the time of the receipt of a notice of a claim pursuant to Section 4(a)
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.
(e)
Selection
of Counsel. In
the event the Company shall be obligated under Section 2 hereof to pay the
expenses of any proceeding against Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel
approved by Indemnitee, which approval shall not be unreasonably withheld,
upon
the delivery to Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred
by
Indemnitee with respect to the same proceeding, provided that
(i) Indemnitee shall have the right
to employ his counsel in any such proceeding at
Indemnitee’s expense; and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee
shall have reasonably concluded that there may be a conflict of interest between
the Company and Indemnitee in the conduct of any such defense, or (C) the
Company shall not, in fact, have employed counsel to assume the defense of
such
proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company
5.
Additional
Indemnification Rights; Nonexclusivity.
(a)
Scope.
Notwithstanding
any other provision of this Agreement, the Company hereby agrees to indemnify
the Indemnitee to the fullest extent permitted by law, notwithstanding that
such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company’s Certificate of Incorporation, the Company’s Bylaws or
by statute. In the event of any change, after the date of this Agreement, in
any
applicable law, statute, or rule which expands the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
such
changes shall be, ipso facto, within the purview of Indemnitee’s rights and
Company’s obligations, under this Agreement. In the event of any change in any
applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
such
changes, to the extent not otherwise required by such law, statute or rule
to be
applied to this Agreement shall have no effect on this Agreement or the parties’
rights and obligations hereunder.
(b)
Nonexclusivity.
The
indemnification provided by this Agreement shall not be deemed exclusive of
any
rights to which Indemnitee may be entitled under the Company’s Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or
disinterested Directors, the General Corporation Law of the State of Delaware,
or otherwise, both as to action in Indemnitee’s official capacity and as to
action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though he
may
have ceased to serve in such capacity at the time of any action, suit or other
covered proceeding (the “Indemnification Period”). To the extent that during the
Indemnification Period the rights of the then existing directors and officers
are more favorable to such directors or officers than the rights currently
provided to Indemnitee thereunder or under this Agreement, Indemnitee shall
be
entitled to the full benefits of such more favorable rights.
6.
Partial
Indemnification. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of the
expenses, judgments, fines or penalties actually and reasonably incurred by
him
in the investigation, defense, appeal or settlement of any civil or criminal
action, suit or proceeding, but not, however, for the total amount thereof,
the
Company shall nevertheless indemnify Indemnitee for the portion of such
expenses, judgments, fines or penalties to which Indemnitee is entitled.
7.
Mutual
Acknowledgement. Both the Company and Indemnitee acknowledge that
in certain instances, Federal law or applicable public policy may prohibit
the
Company from indemnifying its directors and officers under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or 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 Company’s right under public
policy to indemnify Indemnitee.
8.
Officer
and Director
Liability Insurance. The Company shall, from time to time, make the
good faith determination whether or not it is practicable for the Company to
obtain and maintain a policy or policies of insurance with reputable insurance
companies providing the officers and directors of the Company with coverage
for
losses from wrongful acts, or to ensure the Company’s performance of its
indemnification obligations under this Agreement. Among other considerations,
the Company will weigh the costs of obtaining such insurance coverage against
the protection afforded by such coverage. In all policies of director and
officer liability insurance, 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 Company’s directors, if Indemnitee is a
director; or of the Company’s officers, if Indemnitee is not a director of the
Company but is an officer. Notwithstanding the foregoing, the Company shall
have
no obligation to obtain or maintain such insurance if the Company 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 Company.
9.
Severability. Nothing in this Agreement is intended to
require or shall be construed as requiring the Company to do or fail to do
any
act in violation of applicable law. The Company’s inability, pursuant to court
order, to perform its obligations under this Agreement shall not constitute
a
breach of this Agreement. The provisions of this Agreement shall be severable
as
provided in this Section 9. If this Agreement or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted
by
any applicable portion of this Agreement that shall not have been invalidated,
and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
10.
Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a)
Claims
Initiated by
Indemnitee. To indemnify or advance expenses to Indemnitee with respect to
proceedings or claims initiated or brought voluntarily by Indemnitee and not
by
way of defense, except with respect to proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other statute
or
law or otherwise as required under Section 145 of the Delaware General
Corporation Law, but such indemnification or advancement of expenses may be
provided by the Company in specific cases if the Board of Directors has approved
the initiation or bringing of such suit; or
(b)
Lack
of Good Faith. To
indemnify Indemnitee for any expenses incurred by the Indemnitee with respect
to
any proceeding instituted by Indemnitee to enforce or interpret this Agreement,
if a court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made in good faith
or was frivolous; or
(c)
Insured
Claims. To
indemnify Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) which have been paid directly to
or
on behalf of Indemnitee by an insurance carrier under a policy of officers’ and
directors’ liability insurance maintained by the Company; or
(d)
Claims
Under
Section 16(b). To indemnify Indemnitee for expenses and the payment of
profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or any similar successor statute.
11.
Construction
of
Certain Phrases.
(a)
For purposes of this Agreement,
references to the “Company” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that if Indemnitee is or was
a
director, officer, employee or agent of such constituent corporation, or is
or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, Indemnitee shall stand in the same position under
the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(b)
For purposes of this Agreement,
the term “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.
(c)
For purposes of this Agreement,
the term “Proceeding” shall include 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 one initiated by Indemnitee to enforce his rights under this
Agreement.
(d)
For purposes of this Agreement,
a “Change in Control” shall be deemed to occur upon the earliest to occur after
the date of this Agreement of any of the following events:
(i)
Acquisition of Stock by Third
Party. Any Person (as defined below) is or becomes the Beneficial Owner (as
defined below), directly or indirectly, of securities of the Company
representing fifteen percent (15%) or more of the combined voting power of
the Company’s then outstanding securities;
(ii)
Change in Board of Directors.
During any period of two (2) consecutive years (not including any period
prior to the execution of this Agreement), individuals who at the beginning
of
such period constitute the Board, and any new director whose election by the
Board or nomination for election by the Company’s stockholders was approved by a
vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to constitute
a
least a majority of the members of the Board;
(iii)
Corporate Transactions. The
effective date of a merger or consolidation of the Company with any other
entity, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than 51%
of
the combined voting power of the voting securities of the surviving entity
outstanding immediately after such merger or consolidation and with the power
to
elect at least a majority of the board of directors or other governing body
of
such surviving entity;
(iv)
Liquidation. The approval by
the stockholders of the Company of a complete liquidation of the Company or
an
agreement for the sale or disposition by the Company of all or substantially
all
of the Company’s assets; and
(v)
Other Events. There occurs any
other event of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar
item on any similar schedule or form) promulgated under the Exchange Act (as
defined below), whether or not the Company is then subject to such reporting
requirement.
For
purposes of this
Section 11(d), the following terms shall have the following meanings:
(A)
“Exchange
Act” shall mean the
Securities Exchange Act of 1934, as amended.
(B)
“Person”
shall
have the meaning
as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however,
that Person shall exclude (i) the Company, (ii) any trustee
or other fiduciary
holding securities under an employee benefit plan of the Company, and
(iii) any corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of stock
of
the Company.
(C)
“Beneficial
Owner” shall have
the meaning given to such term in Rule 13d-3 under the Exchange Act; provided,
however, that Beneficial Owner shall exclude any Person otherwise becoming
a
Beneficial Owner by reason of the stockholders of the Company approving a merger
of the Company with another entity.
(e)
For purposes of this Agreement,
references to “other enterprise” shall include employee benefit plans;
references to “fines” shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to “serving at the request
of the Company” shall include any service as a director, officer, employee or
agent of the Company which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and if Indemnitee acted in good faith and
in
a manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnitee shall
be
deemed to have acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
12.
Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original.
13.
Successors
and
Assigns. This Agreement shall be binding upon the Company and its
successors and assigns, and shall inure to the benefit of Indemnitee and
Indemnitee’s estate, heirs, legal representatives and permitted assigns.
14.
Attorneys’
Fees. In the event that any action is instituted by Indemnitee
under this Agreement to enforce or interpret any of the terms hereof, Indemnitee
shall be entitled to be paid all court costs and expenses, including reasonable
attorneys’ fees, incurred by Indemnitee with respect to such action, unless as a
part of such action, the court of competent jurisdiction determines that each
of
the material assertions made by Indemnitee as a basis for such action were
not
made in good faith or were frivolous. In the event of an action instituted
by or
in the name of the Company under this Agreement or to enforce or interpret
any
of the terms of this Agreement, Indemnitee shall be entitled to be paid all
court costs and expenses, including attorneys’ fees, incurred by Indemnitee in
defense of such action (including with respect to Indemnitee’s counterclaims and
cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee’s material defenses to such action were made
in bad faith or were frivolous.
15.
Notice.
All notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed duly given (i) if delivered by hand
and receipted for by the party addressee, on the date of such receipt, or
(ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked. Addresses for
notice to either party are as shown on the signature page of this Agreement,
or
as subsequently modified by written notice.
16.
Consent
to
Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all
purposes in connection with any action or proceeding which arises out of or
relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
17.
Choice
of
Law. This Agreement shall be governed by and its provisions
construed in accordance with the laws of the State of Delaware, without regard
to the conflict of law principles thereof.
18.
Period
of
Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against Indemnitee,
Indemnitee’s estate, spouse, heirs, executors or personal or legal
representatives after the expiration of one year from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall
be
extinguished and deemed released unless asserted by the timely filing of a
legal
action within such one-year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action,
such
shorter period shall govern.
19.
Subrogation. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to
all
of the rights of recovery of Indemnitee, who shall execute all documents
required and shall do all acts that may be necessary to secure such rights
and
to enable the Company effectively to bring suit to enforce such rights.
20.
Amendment
and
Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by both 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.
21.
Integration
and
Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
[SIGNATURES
ON NEXT
PAGE]
IN
WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first above written.
| COMPANY: | INDEMNITEE: | |||||
| InterMetro Communications, Inc., | ||||||
|
a Delaware corporation
|
[Printed] | |||||
| By: | ||||||
| Name: | [Signed] | |||||
| Its: | ||||||
