EXHIBIT 10.49
SMARTSERV
October 29, 2004
Xx. Xxxxxxx X. Xxxx 00000X Xxxxx Xxxx Xxxxxxx, XX 00000
Dear Xxxxx:
Thank you very much for your service as a Director of SmartServ. On behalf of
the company, your contribution during these difficult times has been greatly
appreciated.
As part of your transition from the SmartServ Board, this confirms that, upon
execution of this letter agreement, there will automatically vest 35,000 shares
of that certain Option dated August 1, 2004 (the "Option") duly issued by the
Company pursuant to its Non-Employee Director Option Plan. All of the terms and
conditions of such Option shall continue in full force and effect as to such
35,000 shares. The balance of that Option (25,000 shares) will not be
exercisable upon your resignation from the SmartServ Board.
XxxxxXxxx, and any of its successors and assigns, agrees that it will indemnify
you with respect to your service as a Director in accordance with the By-Laws,
which provide for indemnification to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as more fully set forth on Attachment
A hereto, which is fully incorporated herein. XxxxxXxxx further agrees that it
will purchase and maintain insurance on behalf of you in your capacity as a
Director of SmartServ, to the fullest extent provided under the General
Corporation Law of the State of Delaware, including 8 De. C. Section 145(g).
By signing below, you waive any and all meeting fees and other directors
compensation which would otherwise be due with respect to your position as a
Director or participation at Board of Director meetings and Committee meetings.
You on behalf of yourself and your agents, heirs, successors and assigns
unconditionally release SmartServ and its subsidiaries, directors, officers and
employees (collectively, the "Released Parties") from any and all claims
demands, liabilities, and causes of action you have or may have known or unknown
matured or unmatured, against the Released Parties, except any claims that may
arise in the future as provided herein for indemnification or otherwise.
SmartServ, and its successors and assigns, unconditionally releases you from any
and all claims, demand, liabilities, and causes of action it has or may have,
known or unknown, matured or unmatured, to the fullest extent permitted under
Delaware law, except as to matters set forth in Section 1(b) of Attachment A.
This letter Agreement will be binding upon and inure to the benefit of SmartServ
and any of its successors, assigns or administrators and you and any of your
heirs, executors and administrators.
By signing this letter agreement, SmartServ represents and warrants to you that
SmartServ has full authority to enter into this letter Agreement.
0000 Xxxxxx Xxxx Xxxxx 000 Xxxxxxxx Xxxxxxx, XX 00000
Tel: 000.000.0000 Fax: 000.000.0000 Email: xxxx@XxxxxXxxx.xxx xxx.XxxxxXxxx.xxx
This letter Agreement represents the entire agreement with respect to the
subject matter set forth herein and supersedes and cancels any and all prior
understandings, representations and agreement, oral or written.
Again, thank you for your Board service and good luck on your future endeavors.
Sincerely,
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
President/CEO
Accepted and agreed to:
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
ATTACHMENT A
1. SmartServ Online, Inc. (the "Company" or "Corporation") shall indemnify
and hold Xxxxxxx X. Xxxx (the "Director") harmless of, from and against any and
all expenses (including attorneys' fees), claims, judgments, fines, costs and
amounts paid in settlement, actually and reasonably incurred in connection with
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including but not limited to an
action by or in the right of the Company), to which the Director is, was or at
any time becomes a party or is threatened to be made a party, a witness or the
recipient of a subpoena or request (formal or informal) for information by
reason of or in connection with the fact that the Director is or was a director
of the Company, or is or was serving or at any time serves at the request of the
Company as a director, officer, employee or agent of any other corporation,
partnership, joint venture, trust or enterprise; provided, however, that the
Director acted in good faith and in a manner the Director 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 his
conduct was unlawful.
(a) In addition, the Company shall indemnify and hold the Director
harmless of, from and against any and all expenses (including attorney's fees)
actually and reasonably incurred by the Director in connection with any
threatened, pending or completed action, suit or proceeding by or in the right
of the Company to procure judgment in its favor by reason of or in connection
with the fact that the Director is or was a director of the Company, or is or
was serving or at any time serves at the request of the Company as a director,
officer, employee or agent of any other corporation, partnership, joint venture,
trust or enterprise; provided, however, that the Director acted in good faith
and in a manner the Director reasonably believed to be in, or not opposed to,
the best interests of the Company, and, except that no indemnification shall be
made in respect of any claim, issue or matter as to which the Director shall
have been adjudicated to be liable to the Company, unless the Court of Chancery
or the court in which such action or suit is brought, determines upon
application that the Director is fairly and reasonably entitled to such expenses
as the Chancery Court or other court deems proper.
(b) It is the express understanding of the parties hereto that,
except as provided herein, the Company shall provide indemnification to the
Director to the fullest extent as authorized or permitted under Section 145 of
the Delaware General Corporation Law as in effect on the date hereof, and to the
extent any amendment to such section or other applicable law may expand
indemnification rights, to the full extent authorized or permitted by such
section or other applicable law as may be in effect from time to time; provided,
however, such indemnification is not in violation of Article Seven of the
Company's Amended and Restated Certificate of Incorporation, which states that:
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages or breach of fiduciary duty as
a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit. Neither the amendment nor repeal of this Article nor the
adoption of any provision of this Amended and Restated Certificate
of Incorporation inconsistent with this Article Seven,
shall eliminate or reduce the effect of this Article Seven in
respect of any matter occurring, or any cause of action, suit or
claim that, but for this Article Seven would accrue or arise, prior
to such amendment, repeal or adoption of an inconsistent provision.
(c) To the extent that the Director of the Company 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, the Director shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
Section 1 (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of the
Director is proper in the circumstances because the person has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
Section 1. Such determination shall be made, with respect to the Director: (i)
by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum; (ii) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (iii) if there are not such directors, or if such directors so direct,
by independent legal counsel in a written opinion; or (iv) by the stockholders.
2. The obligations of the Company shall continue at all times as long as
the Director shall be in any way subject to possible claim or threatened or
pending action, suit or proceeding, or otherwise the recipient of a subpoena or
request (formal or informal) for information in such proceedings, by reason of
or in connection with the fact that the Director served the Company (or such
other persons) in any such capacity.
3. Expenses (including attorneys' fees) incurred by the Director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of the Director to repay such amount if it shall ultimately be determined that
is not entitled to be indemnified by the Company pursuant to the terms and
conditions set forth herein.
4. Promptly after receipt by the Director of notice of any claim or the
commencement of any action, suit or proceeding, or receipt of a subpoena or
other request for information, the Director will notify the Company of the
commencement thereof. The failure to so notify the Company will not relieve it
from any obligation, which it may have to the Director hereunder or otherwise,
except to the extent such failure has materially injured the ability of the
Company to defend successfully such action or to minimize the economic exposure
resulting therefrom. With respect to each such action, suit or proceeding as to
which the Director gives proper notice to the Company hereunder, the following
provisions shall be applicable:
(a) The Company shall be entitled to participate in the defense
thereof at its own expense.
(b) Except as otherwise provided in this subsection (b) the Company
will be entitled to assume the defense thereof with counsel reasonably
satisfactory to the Director. The Company shall give notice of its election to
assume the defense of such action within fifteen (15) days after the
commencement of the action or the date it receives notice thereof, whichever
is later. Thereafter, the Company will not be liable to the Director hereunder
or otherwise for any legal or other expenses subsequently incurred by the
Director in connection with the defense thereof other than reasonable costs of
investigation, or as otherwise provided in this subsection (b). The Director
shall have the right to employ its counsel in such action, suit or proceeding,
but the fees and expenses of such counsel incurred after notice from the Company
of its assumption of the defense thereof shall be at the sole expense of the
Director (excluding reimbursement to the Director for reasonable costs for the
Director to retain counsel solely for the purpose of monitoring such
proceedings) unless (i) the employment of counsel by the Director has been
expressly authorized at such time by the Company, (ii) the Director shall have
reasonably concluded that there may be a disabling conflict of interest between
the Company and the Director in the conduct of the defense of such action, or
(iii) the Company shall not in fact have employed counsel to assume the defense
of such action, and in each of such cases, the fees and expenses of counsel
retained by the Director shall be paid by the Company. The Company shall not be
entitled to assume the defense of any action, suit or proceeding brought by or
derivatively on behalf of the Company, or as to which the Director shall have
concluded as provided in clause (ii) above, but shall remain responsible for all
reasonable legal and other expenses of the Director as set forth herein.
(c) The Company shall not be liable for indemnification to the
Director hereunder for any amounts paid in settlement of any action or claim
which settlement is effected without the prior written consent of the Company.
The Company shall not settle any action or claim in any manner which would
impose any penalty or limitation upon the conduct of the Director without the
written consent of the Director. Neither the Company nor the Director will
unreasonably withhold his or its consent to any proposed settlement.
(d) The indemnification and advancement of expenses provided by, or
granted pursuant to, this agreement shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled by law or under any bylaw or action of the Company.
5. The provisions hereof shall be interpreted and construed in accordance
with the substantive laws of the State of Delaware without regard to the law of
conflicts. Should the indemnification provisions of the General Corporation Law
of the State of Delaware be amended or modified after the date hereof, such
General Corporation Law as amended or modified shall control and supersede the
provisions hereof.
