Exhibit 10.16
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into
as of the ___ day of ______________, by and between VIA XXX.XXXXX, INC., a
Delaware corporation (the "Company"), and the undersigned, [a director] [an
officer] of the Company ("Indemnitee"). For the purposes of this Agreement, all
references to the "Company" shall include all subsidiaries, affiliates,
partnerships, enterprises, employee benefit plans or other entities on behalf of
which Indemnitee serves or will serve at the Company's request as an officer,
director, trustee, partner, employee or agent or in a related capacity.
WHEREAS, Indemnitee has agreed to serve, at the request of the
Company, as a [a director] [an officer] of the Company; and
WHEREAS, Indemnitee is willing to serve on behalf of the Company on
the condition that Indemnitee be indemnified.
NOW, THEREFORE, in consideration of Indemnitee's agreement to serve as
a [a director] [an officer] of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement do hereby agree as follows:
1. General Indemnity Provisions. To the maximum extent that Delaware
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law in effect from time to time permits, the Company shall indemnify Indemnitee
against liability to the Company or to the Company's stockholders for money
damages (unless the liability arises from a proceeding initiated by the
Indemnitee and unauthorized by the Company's Board of Directors (the "Board")).
If Indemnitee is a Director of the Company, in the absence of any Delaware
statute limiting the liability of directors of a Delaware corporation for money
damages in a suit by or on behalf of the Company or by any stockholder of the
Company, Indemnitee shall not be liable to the Company or to the Company's
stockholders for money damages except to the extent that (i) Indemnitee actually
received an improper benefit or profit in money, property, or services, for the
amount of the benefit or profit in money, property, or services actually
received, or (ii) a judgment or other final adjudication adverse to Indemnitee
is entered in a proceeding based on a finding in the proceeding that
Indemnitee's action or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding.
2. Express Exculpatory Clauses in Instruments. Indemnitee shall not
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be liable under any written instrument creating an obligation of the Company by
reason of Indemnitee's being a [a director] [an officer] of the Company, and all
persons shall look solely to the Company for the payment of any claim under or
for the performance of that instrument. The omission of the foregoing
exculpatory
language from any instrument shall not affect the validity or enforceability of
such instrument and shall not render Indemnitee liable thereunder to any third
party, nor shall Indemnitee be liable to anyone as a result of such omission.
3. Indemnification. The Company shall indemnify Indemnitee, whether
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serving the Company or at its request any other entity, to the full extent
required or permitted by the laws of the State of Delaware applicable to
business corporations now or hereafter in force, including the advance for
expenses under the procedures and to the full extent permitted by such laws,
except with respect to indemnification for liability arising from a proceeding
initiated by the Indemnitee and unauthorized by the Board. Nothing contained
herein shall be construed to protect Indemnitee against any liability to the
extent such protection would violate Delaware statutory or decisional law
applicable to business corporations organized under Title 8 of the Delaware Code
Annotated or any successor provisions ("Delaware Corporate Law"). No amendment
of the Company's Amended and Restated Certificate of Incorporation or repeal of
any of its provisions shall limit or eliminate the rights of indemnification
provided hereunder with respect to acts or omissions occurring prior to such
amendment or repeal.
4. Expenses Incurred by Indemnitee to Enforce this Agreement.
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Expenses incurred by Indemnitee in connection with Indemnitee's request for
indemnification hereunder shall be borne by the Company to the full extent
required or permitted by Delaware Corporation Law, unless Indemnitee is
determined not to be entitled to indemnification for any liability or expense
hereunder. In the event that Indemnitee is a party or intervenes in any
proceeding in which the validity or enforceability of this Agreement is at issue
or seeks an adjudication or award in arbitration to enforce Indemnitee's rights
under, or to recover damages for breach of, this Agreement, Indemnitee, if
Indemnitee prevails in whole or in part in such action, shall be entitled to
recover from the Company and shall be indemnified by the Company against any
expenses actually and reasonably incurred by Indemnitee.
5. Termination of Service. Indemnitee's right to indemnification
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pursuant to this Agreement shall continue regardless of whether Indemnitee has
ceased for any reason to be an officer, trustee, director, partner, employee or
agent of the Company and shall inure to the benefit of the heirs of Indemnitee
or the executors or administrators of Indemnitee's estate.
6. No Duplication of Payments. The Company shall not be liable under
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this Agreement to make any payment in connection with any action to the extent
Indemnitee has otherwise actually received payment (under any insurance policy,
by-law provision or otherwise) of the amounts otherwise indemnifiable hereunder.
7. Non-Exclusivity. Indemnitee's rights under this Agreement shall
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be in addition to, and not in lieu of, any other rights Indemnitee may have,
whether under the Company's Bylaws, the Company's Amended and Restated
Certificate of Incorporation, Delaware Corporate Law, or any other agreements or
contracts with the Company, or pursuant to any directors or officers liability
insurance. Nothing in this Agreement shall be deemed to diminish or otherwise
restrict Indemnitee's right to indemnification under any provision of the
Company's Bylaws, the Company's Amended and Restated Certificate of
Incorporation, Delaware Corporate Law, or any other agreement or contract with
the Company, or pursuant to any directors and officers liability insurance.
8. Binding Effect. This Agreement shall be binding upon and inure to
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the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by merger or
consolidation), heirs, executors and administrators.
9. Governing Law. This Agreement shall be deemed to be made in, and
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in all respects shall be interpreted, construed, and governed by and in
accordance with the laws of the State of Delaware.
10. Severability. The Company and Indemnitee agree that the
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agreements and provisions contained in this Agreement are severable and
divisible, that each such agreement and provision does not depend upon any other
provision or agreement for its enforceability, and that each such agreement and
provision set forth herein constitutes an enforceable obligation between the
Company and Indemnitee. Consequently, the parties hereto agree that neither the
invalidity nor the unenforceability of any provision of this Agreement shall
affect the other provisions hereof, and this Agreement shall remain in full
force and effect and be construed in all respects as if such invalid or
unenforceable provision were omitted.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first above written.
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Name:
[Director] [Officer]
VIA XXX.XXXXX, INC.
By:
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Xxxxx X'Xxxxxxx
Chief Executive Officer
