Exhibit 10.8
May 1, 1998
Indemnification Agreement
Recovery Equity Investors II, L.P.
000 Xxxxxxx'x Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Gentlemen:
As part of the consideration for the agreement of Recovery Equity
Investors II, L.P., a Delaware limited partnership (the "Consultant"), to
furnish its services to Chadmoore Wireless Group, Inc., a Colorado corporation
(the "Company"), pursuant to the terms of the Advisory Agreement, dated as of
May 1, 1998, between the Consultant and the Company (as the same may be amended,
supplemented, or otherwise modified from time to time, the "Advisory
Agreement"), the Company agrees to indemnify and hold harmless the Consultant,
its affiliates, their respective partners, officers, directors, employees, and
agents, and all other persons controlling the Consultant or any of its
affiliates within the meaning of either (i) Section 15 of the Securities Act of
1933, as amended, or (ii) Section 20 of the Securities Exchange Act of 1934, as
amended (individually, an "Indemnified Party" and collectively, the "Indemnified
Parties"), from and against, and the Company agrees that no Indemnified Person
shall have any liability to the Company or its affiliates, security holders, or
creditors for, all claims, liabilities, fees, penalties, expenses, losses, and
damages (including without limitation the reasonable fees, charges, and
disbursements of counsel) (collectively, "Losses") related to or arising out of
actions taken (or omitted to be taken) by any of the Indemnified Parties
pursuant to the Advisory Agreement or any Indemnified Party's role in connection
therewith, and whether or not incurred in connection with any action or
proceeding relating to any such act or omission; provided, however, that the
Company shall not be responsible for any Losses to the extent that it is finally
judicially determined that they result solely from actions taken or omitted to
be taken by an Indemnified Party due to such Indemnified Party's gross
negligence or willful misconduct.
If for any reason the foregoing indemnity is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party harmless, then
the Company shall contribute to the amount paid or payable by such Indemnified
Party as a result of such Loss in such proportion as is appropriate to reflect
not only the relative benefits received (or contemplated to be received) by the
Company on the one hand and such Indemnified Party on the other hand or, if such
allocation is judicially determined unavailable, in such proportion as is
appropriate to reflect other equitable considerations such as the relative fault
of the Company on the one hand and of such Indemnified Party on the other hand,
subject to the limitation that in any event an Indemnified Party's
aggregate contribution to all Losses shall not exceed the amount of fees
actually received by such Indemnified Party pursuant to the Advisory Agreement.
Promptly after receipt by an Indemnified Party of notice of any
complaint or the commencement of any action or proceeding with respect to which
indemnification may be sought against the Company hereunder, such Indemnified
Party will notify the Company in writing of the receipt or commencement thereof,
but failure to notify the Company will relieve the Company from any liability
which it may have hereunder only if, and to the extent that, such failure
results in the forfeiture of substantial rights and defenses on the part of such
Indemnified Party, and will not in any event relieve the Company from any other
obligation to any Indemnified Party. The Company shall assume the defense of
such action or proceeding (including without limitation payment of reasonable
fees, charges, and disbursements of counsel) insofar as such action or
proceeding shall relate to any alleged Loss in respect of which indemnity may be
sought against the Company. An Indemnified Party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees, charges and disbursements of such counsel shall be at the expense
of such Indemnified Party unless employment of such counsel has been
specifically authorized by the Company in writing.
The Company shall authorize separate counsel for an Indemnified
Party if the named parties to any action or proceeding (including any impleaded
parties) include the Company (or any of the directors of the Company) and such
Indemnified Party, and (i) in the good faith judgment of such Indemnified Party
(as advised by counsel) the use of joint counsel would present such counsel with
an actual or potential conflict of interest or (ii) an Indemnified Party shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Company (or its directors(s)).
The Company will reimburse each Indemnified Party for all
expenses (including without limitation the reasonable fees, charges, and
disbursements of counsel authorized by the Company) as they are incurred by such
Indemnified Party in connection with investigating, preparing for, or defending
any action, claim, or proceeding ("Action") referred to above (or enforcing this
Indemnification Agreement or the Advisory Agreement) whether or not any
Indemnified Party is or becomes a party to such Action, and whether or not such
Action is initiated or brought by the Consultant. The Company further agrees
that the Company will not settle, compromise, or consent to the entry of any
judgment in any pending or threatened Action in respect of which indemnification
may be sought hereunder (whether or not an Indemnified Party is a party thereto)
unless the Company has given the Consultant reasonable prior written notice
thereof and obtained an unconditional release of each Indemnified Party from all
liability arising therefrom. No Indemnified Party shall admit any liability with
respect to, settle, compromise, or consent to the entry of any judgment in any
pending or threatened Action in respect of which indemnification is being sought
hereunder without the prior written consent of the Company (which consent shall
not be unreasonably withheld or delayed). An Indemnified Party shall not be
liable to the Company or to any other person in connection with the services
which it renders pursuant to the Advisory Agreement, except for such Indemnified
Party's gross negligence or willful misconduct judicially determined as
aforesaid. The indemnification,
contribution, and expense reimbursement obligations that the Company has under
this Indemnification Agreement shall be in addition to any liability the Company
may otherwise have. THE CONSULTANT HEREBY AGREES, AND THE COMPANY HEREBY AGREES
ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF
ITS SECURITY HOLDERS, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
CLAIM, COUNTER-CLAIM, OR ACTION ARISING OUT OF THE ADVISORY AGREEMENT, THE
CONSULTANT'S PERFORMANCE THEREUNDER, OR THIS INDEMNIFICATION AGREEMENT.
The provisions of this Indemnification Agreement shall apply to
the Consultant's services under the Advisory Agreement and shall remain in full
force and effect regardless of the completion or termination of the Advisory
Agreement or any amendment, supplement, or other modification to or of the
Advisory Agreement. This Indemnification Agreement and any other agreements
relating hereto shall be governed by and construed in accordance with the
domestic laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
[Signature page to follow]
Very truly yours,
CHADMOORE WIRELESS GROUP, INC.
By:
---------------------------
Name:
Title:
Agreed to and accepted
this day of May, 1998
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RECOVERY EQUITY INVESTORS II, L.P.
By Recovery Equity Partners II, L.P.,
its General Partner
By:
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Name: Xxxxxx X. Xxxx-Xxxx
Title: General Partner
By:
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Name: Xxxxxxx X. Xxxxxx
Title: General Partner
[Indemnification Agreement]
