EXHIBIT 10.2
NETSPEAK CORPORATION
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of _____ __, 199_, by and
between NetSpeak Corporation, a corporation organized under the laws of the
State of Florida (the "Corporation"), with its principal office located at 000
Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, and _____, an individual
with an address at___________________________ (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers of corporations and others to expensive litigation risks
at the same time that the availability of competent and qualified directors,
officers, employees, consultants, advisers and agents has been greatly reduced,
and the coverage offered by directors' and officers' liability insurance has
been severely limited;
WHEREAS, Indemnitee does not regard the protection available under the
Corporation's Articles of Incorporation, By-laws and insurance as adequate in
the present circumstances, and may not be willing to serve as a director to the
Corporation without adequate protection, and the Corporation desires Indemnitee
to serve in such capacity;
WHEREAS, as a condition to the Indemnitee's agreement to continue to
serve as a director of the Corporation, the Indemnitee requires that he be
indemnified from liability to the fullest extent permitted by law; and
WHEREAS, the Corporation is willing to indemnify the Indemnitee to the
fullest extent permitted by law in order to retain the services of the
Indemnitee.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the Corporation and the Indemnitee agree as follows:
SECTION 1. MANDATORY INDEMNIFICATION IN PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 5
hereof, the Corporation shall indemnify and hold harmless the Indemnitee from
and against any and all claims, damages, expenses (including attorneys' fees),
judgments, penalties, fines (including excise taxes assessed with respect to an
employee benefit plan), settlements, and all other liabilities incurred or paid
by him in connection with the investigation, defense, prosecution, settlement or
appeal of any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) and to which the Indemnitee was or is a
party or is threatened to be made a party by reason of the fact that the
Indemnitee is or was an officer, director,
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shareholder, employee, consultant adviser or agent of the Corporation, or is or
was serving at the request of the Corporation as an officer, director, partner,
trustee, employee, adviser or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, or by reason of
anything done or not done by the Indemnitee in any such capacity or capacities,
provided that the Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
SECTION 2. MANDATORY INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT
OF THE CORPORATION. Subject to Section 5 hereof the Corporation shall indemnify
and hold harmless the Indemnitee from and against any and all expenses
(including attorneys' fees) and amounts actually and reasonably incurred or paid
by him in connection with the investigation, defense, prosecution, settlement or
appeal of any threatened, pending or completed action, suit or proceeding by or
in the right of the Corporation to procure a judgment in its favor, whether
civil, criminal, administrative or investigative, and to which the Indemnitee
was or is a party or is threatened to be made a party by reason of the fact that
the Indemnitee is or was an officer, director, shareholder, employee,
consultant, adviser or agent of the Corporation, or is or was serving at the
request of the Corporation as an officer, director, partner, trustee, employee,
adviser or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, or by reason of anything done or not
done by the Indemnitee in any such capacity or capacities, provided that (i) the
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation and (ii) no
indemnification shall be made under this Section 2 in respect of any claim,
issue or matter as to which the Indemnitee shall have been adjudged to be liable
to the Corporation for misconduct in the performance of his duty to the
Corporation unless, and only to the extent that, the court in which such
proceeding was brought (or any other court of competent jurisdiction) shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
SECTION 3. MANDATORY INDEMNIFICATION AGAINST EXPENSES INCURRED WHILE
TESTIFYING. Subject to Section 5 hereof, the Corporation shall indemnify the
Indemnitee against expenses (including attorney's fees) incurred or paid by the
Indemnitee as a result of providing testimony in any proceeding, whether civil,
criminal, administrative or investigative (including but not limited to any
action or suit by or in the right of the Corporation to procure judgment in its
favor), by reason of the fact that the Indemnitee is or was an officer,
director, shareholder, employee, consultant, adviser or agent of the
Corporation, or is or was serving at the request of the Corporation as an
officer, director, partner, trustee, employee, adviser or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise.
SECTION 4. REIMBURSEMENT OF EXPENSES FOLLOWING ADJUDICATION
OF NEGLIGENCE. The Corporation shall reimburse the Indemnitee for any expenses
(including attorney's fees) and amounts actually and reasonably incurred or paid
by him in
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connection with the investigation, defense, settlement or appeal of any action
or suit described in Section 2 hereof that results in an adjudication that the
Indemnitee was liable for negligence, gross negligence or recklessness (but not
willful misconduct) in the performance of his duty to the Corporation; provided,
however, that the Indemnitee acted in good faith and in a manner he believed to
be in the best interests of the Corporation.
SECTION 5. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under
Sections 1, 2 and 3 hereof (unless ordered by a court) and any reimbursement
made under Section 4 hereof shall be made by the Corporation only as authorized
in the specific case upon a determination (the "Determination") that
indemnification or reimbursement of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable requirements set
forth in Section 1, 2, 3 and 4 hereof, as the case may be. Subject to Sections
6.6, 6.7 and 9 of this Agreement, the Determination shall be made in the
following order of preference:
(1) first, by the Corporation's Board of
Directors (the "Board") by majority vote or consent of a quorum consisting of
directors ("Disinterested Directors") who are not, at the time of the
Determination, named parties to such action, suit or proceeding; or
(2) next, if such a quorum of Disinterested
Directors cannot be obtained, by majority vote or consent of a committee duly
designated by the Board (in which designation all directors, whether or not
Disinterested Directors, may participate) consisting solely of two or more
Disinterested Directors; or
(3) next, if such a committee cannot be
designated, by any independent legal counsel (who may be any outside counsel
regularly employed by the Corporation) in a written opinion; or
(4) next, if such legal counsel determination
cannot be obtained, by vote or consent of the holders of a majority of the
Corporation's common stock.
5.1 NO PRESUMPTIONS. 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 the Indemnitee
did not act in good faith and in a manner that he reasonably believed to be in
or not opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
5.2 BENEFIT PLAN CONDUCT. The Indemnitee's conduct with respect to an
employee benefit plan for a purpose he reasonably believed to be in the
interests of the participants in and beneficiaries of the plan shall be deemed
to be conduct that the Indemnitee reasonably believed to be not opposed to the
best interests of the Corporation.
5.3 RELIANCE AS SAFE HARBOR. For purposes of any Determination
hereunder, the Indemnitee shall be deemed to have acted in good faith and in a
manner he reasonably believed
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to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to
believe his conduct was unlawful, if his action is based on (i) the records or
books of account of the Corporation or another enterprise, including financial
statements, (ii) information supplied to him by the officers of the Corporation
or another enterprise in the course of their duties, (iii) the advice of legal
counsel for the Corporation or another enterprise, or (iv) information or
records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The term
"another enterprise" as used in this Section 5.3 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise of which the Indemnitee is or was serving at the request of the
Corporation as an officer, director, partner, trustee, employee, adviser or
agent. The provisions of this Section 5.3 shall not be deemed to be exclusive or
to limit in any way the other circumstances in which the Indemnitee may be
deemed to have met the applicable standard of conduct set forth in Sections 1, 2
or 4 hereof, as the case may be.
5.4 SUCCESS ON MERITS OR OTHERWISE. Notwithstanding any other provision
of this Agreement, to the extent that the Indemnitee has been successful on the
merits or otherwise in defense of any action, suit or proceeding described in
Section 1 or 2 hereof, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the investigation, defense,
settlement or appeal thereof. For purposes of this Section 5.4, the term
"successful on the merits or otherwise" shall include, but not be limited to,
(i) any termination, withdrawal, or dismissal (with or without prejudice) of any
claim, action, suit or proceeding against the Indemnitee without any express
finding of liability or guilt against him, and (ii) the expiration of 120 days
after the making of any claim or threat of an action, suit or proceeding without
the institution of the same and without any promise or payment made to induce a
settlement.
5.5 PARTIAL INDEMNIFICATION OR REIMBURSEMENT. If the Indemnitee is
entitled under any provision of this Agreement to indemnification and/or
reimbursement by the Corporation for some or a portion of the claims, damages,
expenses (including attorneys' fees), judgments, penalties, fines or amounts
paid in settlement by the Indemnitee in connection with the investigation of,
defense of, settlement of, appeal of or testimony provided with respect to any
action specified in Section 1, 2, or 3 hereof, but not, however, for the total
amount thereof, the Corporation shall nevertheless indemnify and/or reimburse
the Indemnitee for the portion thereof to which the Indemnitee is entitled. The
party or parties making the Determination shall determine the portion (if less
than all) of such claims, damages, expenses (including attorneys' fees),
judgments, penalties, fines or amounts paid in settlement for which the
Indemnitee is entitled to indemnification and/or reimbursement under this
Agreement.
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SECTION 6. PROCEDURES FOR DETERMINATION OF WHETHER STANDARDS
HAVE BEEN SATISFIED.
6.1 COSTS. All costs of making the Determination required by Section 6
hereof shall be borne solely by the Corporation, including, but not limited to,
the costs of legal counsel, proxy solicitations and judicial determinations. The
Corporation shall also be solely responsible for paying (i) all reasonable
expenses incurred by the Indemnitee to enforce this Agreement, including, but
not limited to, the costs incurred by the Indemnitee to obtain court-ordered
indemnification pursuant to Section 9 hereof regardless of the outcome of any
such application or proceeding, and (ii) all costs of defending any suits or
proceedings challenging payments to the Indemnitee under this Agreement.
6.2 TIMING OF THE DETERMINATION. The Corporation shall use its
best efforts to make the Determination contemplated by Section 5 hereof
promptly. In addition, the Corporation agrees:
(a) if the Determination is to be made by the Board or a
committee thereof, such Determination shall be made not later than 15 days after
a written request for a Determination (a "Request") is delivered to the
Corporation by the Indemnitee;
(b) if the Determination is to be made by independent legal
counsel, such Determination shall be made not later than 30 days after a Request
is delivered to the Corporation by the Indemnitee; and
(c) if the Determination is to be made by the shareholders of
the Corporation, such Determination shall be made not later than 90 days after a
Request is delivered to the Corporation by the Indemnitee.
The failure to make a Determination within the above-specified time period shall
constitute a Determination approving full indemnification or reimbursement of
the Indemnitee. Notwithstanding anything herein to the contrary, a Determination
may be made in advance of (i) the Indemnitee's payment (or incurring) of
expenses with respect to which indemnification or reimbursement is sought,
and/or (ii) final disposition of the action, suit or proceeding with respect to
which indemnification or reimbursement is sought.
6.3 REASONABLENESS OF EXPENSES. The evaluation and finding as to the
reasonableness of expenses incurred by the Indemnitee for purposes of this
Agreement shall be made (in the following order of preference) within 15 days of
the Indemnitee's delivery to the Corporation of a Request that includes a
reasonable accounting of expenses incurred:
(a) first, by the Board by a majority vote of a quorum
consisting of Disinterested Directors; or
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(b) next, if a quorum cannot be obtained under subdivision
(a), by majority vote or consent of a committee duly designated by the Board (in
which designation all directors, whether or not Disinterested Directors, may
participate), consisting solely of two or more Disinterested Directors; or
(c) next, if a finding cannot be obtained under either
subdivision (a) or (b), by vote or consent of the holders of a majority of the
Corporation's Common Stock that are represented in person or by proxy at a
meeting called for such purpose.
All expenses shall be considered reasonable for purposes of this Agreement if
the finding contemplated by this Section 6.3 is not made within the prescribed
time. The finding required by this Section 6.3 may be made in advance of the
payment (or incurring) of the expenses for which indemnification or
reimbursement is sought.
6.4 PAYMENT OF INDEMNIFIED AMOUNT. Immediately following a
Determination that the Indemnitee has met the applicable requirements set forth
in Section 1, 2, 3 or 4 hereof, as the case may be, and the finding of
reasonableness of expenses contemplated by Section 6.3 hereof, or the passage of
time prescribed for making such determination(s), the Corporation shall pay to
the Indemnitee in cash the amount to which the Indemnitee is entitled to be
indemnified and/or reimbursed, as the case may be, without further authorization
or action by the Board; provided, however, that the expenses for which
indemnification or reimbursement is sought have actually been incurred by the
Indemnitee.
6.5 SHAREHOLDER VOTE ON DETERMINATION. Notwithstanding the provisions
of the Florida statutes, if the Indemnitee is a shareholder of the Corporation,
the Indemnitee and any other shareholder who is a party to the proceeding for
which indemnification or reimbursement is sought shall be entitled to vote on
any Determination to be made by the Corporation's shareholders, including a
Determination made pursuant to Section 6.3 hereof. In addition, in connection
with each meeting at which a shareholder Determination will be made, the
Corporation shall solicit proxies that expressly include a proposal to indemnify
or reimburse the Indemnitee. The Corporation proxy statement relating to the
proposal to indemnify or reimburse the Indemnitee shall not include a
recommendation against indemnification or reimbursement.
6.6 SELECTION OF INDEPENDENT LEGAL COUNSEL. If the Determination
required under Section 5 is to be made by independent legal counsel, such
counsel shall be selected by the Indemnitee with the approval of the Board,
which approval shall not be unreasonably withheld. The fees and expenses
incurred by counsel in making any Determination (including Determinations
pursuant to Section 6.8 hereof) shall be borne solely by the Corporation
regardless of the results of any Determination and, if requested by counsel, the
Corporation shall give such counsel an appropriate written agreement with
respect to the payment of their fees and expenses and such other matters as may
be reasonably requested by counsel.
6.7 RIGHT OF INDEMNITEE TO APPEAL AN ADVERSE DETERMINATION BY BOARD. If
a Determination is made by the Board or a committee thereof that the Indemnitee
did not meet the
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requirements set forth in Section 1, 2, 3 or 4 hereof upon the written request
of the Indemnitee and the Indemnitee's delivery of $500 to the Corporation, the
Corporation shall cause a new Determination to be made by the Corporation's
shareholders at the next regular or special meeting of shareholders. Subject to
Section 9 hereof, such Determination by the Corporation's shareholders shall be
binding and conclusive for all purposes of this Agreement.
6.8 RIGHT OF INDEMNITEE TO SELECT FORUM FOR DETERMINATION. If, at any
time subsequent to the date of this Agreement, "Continuing Directors" do not
constitute a majority of the members of the Board, or there is otherwise a
change in control of the Corporation (as contemplated by Item 403(c) of
Regulation S-K), then upon the request of the Indemnitee, the Corporation shall
cause the Determination required by Section 5 hereof to be made by independent
legal counsel selected by the Indemnitee and approved by the Board (which
approval shall not be unreasonably withheld), which counsel shall be deemed to
satisfy the requirements of clause (3) of Section 5 hereof. If none of the legal
counsel selected by the Indemnitee are willing and/or able to make the
Determination, then the Corporation shall cause the Determination to be made by
a majority vote or consent of a Board committee consisting solely of Continuing
Directors. For purposes of this Agreement, a "Continuing Director" means either
a member of the Board at the date of this Agreement or a person nominated to
serve as a member of the Board by a majority of the then Continuing Directors.
6.9 ACCESS BY INDEMNITEE TO DETERMINATION. The Corporation shall afford
to the Indemnitee and his representatives ample opportunity to present evidence
of the facts upon which the Indemnitee relies for indemnification or
reimbursement, together with other information relating to any requested
Determination. The Corporation shall also afford the Indemnitee the reasonable
opportunity to include such evidence and information in any Corporation proxy
statement relating to a shareholder Determination.
6.10 JUDICIAL DETERMINATIONS IN DERIVATIVE SUITS. In each action or
suit described in Section 2 hereof, the Corporation shall cause its counsel to
use its best efforts to obtain from the Court in which such action or suit was
brought (i) an express adjudication whether the Indemnitee is liable for
negligence or misconduct in the performance of his duty to the Corporation, and,
if the Indemnitee is so liable, (ii) a determination whether and to what extent,
despite the adjudication of liability but in view of all the circumstances of
the case (including this Agreement), the Indemnitee is fairly and reasonably
entitled to indemnification.
SECTION 7. SCOPE OF INDEMNITY. The actions, suits and proceedings
described in Sections 1 and 2 hereof shall include, for purposes of this
Agreement, any actions that involve, directly or indirectly, activities of the
Indemnitee both in his capacities as a Corporation director, officer, adviser or
agent and actions taken in another capacity while serving as director, officer,
adviser or agent, including, but not limited to, actions or proceedings
involving (i) compensation paid to the Indemnitee by the Corporation, (ii)
activities by the Indemnitee on behalf of the Corporation, including actions in
which the Indemnitee is plaintiff, (iii) actions alleging a misappropriation of
a 'corporate opportunity," (iv) responses to a takeover attempt or threatened
takeover attempt of the Corporation, (v) transactions by the Indemnitee in
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Corporation securities, and (vi) the Indemnitee's preparation for and appearance
(or potential appearance) as a witness in any proceeding relating, directly or
indirectly, to the Corporation. In addition, the Corporation agrees that, for
purposes of this Agreement, all services performed by the Indemnitee on behalf
of, in connection with or related to any subsidiary of the Corporation, any
employee benefit plan established for the benefit of employees of the
Corporation or any subsidiary, any corporation or partnership or other entity in
which the Corporation or any subsidiary has a 5% ownership interest, or any
other affiliate shall be deemed to be at the request of the Corporation.
SECTION 8. ADVANCE FOR EXPENSES.
8.1 MANDATORY ADVANCE. Expenses (including attorneys' fees) incurred by
the Indemnitee in investigating, defending, settling or appealing any action,
suit or proceeding described in Section 1 or 2 hereof shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding. The Corporation shall promptly pay the amount of such expenses to
the Indemnitee, but in no event later than 10 days following the Indemnitee's
delivery to the Corporation of a written request for an advance pursuant to this
Section 8, together with a reasonable accounting of such expenses.
8.2 UNDERTAKING TO REPAY. The Indemnitee hereby undertakes and agrees
to repay to the Corporation any advances made pursuant to this Section 8 if and
to the extent that it shall ultimately be found that the Indemnitee is not
entitled to be indemnified by the Corporation for such amounts.
8.3 MISCELLANEOUS. The Corporation shall make the advances contemplated
by this Section 8 regardless of the Indemnitee's financial ability to make
repayment, and regardless whether indemnification of the Indemnitee by the
Corporation will ultimately be required. Any advances and undertakings to repay
pursuant to this Section 8 shall be unsecured and interest-free.
SECTION 9. COURT-ORDERED INDEMNIFICATION.
9.1 Regardless whether the Indemnitee has met the requirements set
forth in Sections 1, 2, 3 or 4 hereof, as the case may be, and notwithstanding
the presence or absence of any Determination whether such standards have been
satisfied, the Indemnitee may apply for indemnification (and/or reimbursement
pursuant to Section 4 or 13 hereto to the court conducting any proceeding to
which the Indemnitee is a party or to any other court of competent jurisdiction.
On receipt of an application, the court, after giving any notice the court
considers necessary, may order indemnification (and/or reimbursement) if it
determines the Indemnitee is fairly and reasonably entitled to indemnification
(and/or reimbursement) in view of all the relevant circumstances (including this
Agreement).
9.2 The right to indemnification and advances as provided by this
Agreement shall be enforceable by Indemnitee in an action in any court of
competent jurisdiction. In such an
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action, the burden of proving that indemnification is not required hereunder
shall be on the Corporation. Neither the failure of the Corporation (including
its Board and independent legal counsel) to have made a Determination prior to
the commencement of such an action that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor
an actual Determination by the Corporation (including its Board and independent
legal counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to such an action or create a presumption that Indemnitee has
not met the applicable standard of conduct. Indemnitee's expenses reasonably
incurred in connection with establishing his right to indemnification, in whole
or in part, in connection with any proceeding shall also be indemnified by the
Corporation.
SECTION 10. NONDISCLOSURE OF PAYMENTS. Except as expressly required by
Federal securities laws, neither party shall disclose any payments under this
Agreement unless prior approval of the other party is obtained. Any payments to
the Indemnitee that must be disclosed shall, unless otherwise required by law,
be described only in Corporation proxy or information statements relating to
special and/or annual meetings of the Corporation's shareholders, and the
Corporation shall afford the Indemnitee the reasonable opportunity to review all
such disclosures and, if requested, to explain in such statement any mitigating
circumstances regarding the events reported.
SECTION 11. COVENANT NOT TO XXX, LIMITATION OF ACTIONS AND RELEASE OF
CLAIMS. No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Corporation (or any of its subsidiaries) against
the Indemnitee, his spouse, heirs, executors, personal representatives or
administrators after the expiration of 2 years from the date the Indemnitee
ceases (for any reason) to serve as either an officer, director, adviser or
agent of the Corporation, and any claim or cause of action of the Corporation
(or any of its subsidiaries) shall be extinguished and deemed released unless
asserted by filing of a legal action within such 2-year period.
SECTION 12. INDEMNIFICATION OF INDEMNITEE'S ESTATE. Notwithstanding any
other provision of this Agreement, if the Indemnitee is deceased, and
indemnification of the Indemnitee would be permitted and/or required under this
Agreement, the Corporation shall indemnify and hold harmless the Indemnitee's
estate, spouse, heirs, administrators, personal representatives and executors
(collectively the "Indemnitee's Estate") against, and the Corporation shall
assume, any and all claims, damages, expenses (including attorneys' fees),
penalties, judgments, fines and amounts paid in settlement actually incurred by
the Indemnitee or the Indemnitee's Estate in connection with the investigation,
defense, settlement or appeal of any action described in Section 1 or 2 hereof.
SECTION 13. MISCELLANEOUS.
13.1 NOTICE PROVISION. Any notice, payment, demand or
communication required or permitted to be delivered or given by the provisions
of this Agreement shall be deemed to have been effectively delivered or given
and received on the date personally delivered to the
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respective party to whom it is directed, or when deposited by registered or
certified mail, with postage and charges prepaid and addressed to the parties at
the addresses set forth in the preamble to this Agreement. Any party may by
notice change the address to which notice or other communications to it are to
be delivered or mailed.
13.2 ENTIRE AGREEMENT. Except for the Corporation's Articles of
Incorporation and ByLaws, this Agreement constitutes the entire understanding of
the parties and supersedes all prior understandings, whether written or oral
between the parties with respect to the subject matter of this Agreement.
13.3 NON-EXCLUSIVITY. The rights of indemnification and reimbursement
provided in this Agreement shall be in addition to any rights to which the
Indemnitee may otherwise be entitled under the Corporation's Articles of
Incorporation or By-Laws or any statute, agreement, vote of shareholders or
otherwise.
13.4 SEVERABILITY OF PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of each such illegal, invalid, or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid, and enforceable.
13.5 SAVING CLAUSE. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify Indemnitee as to expenses, judgments,
fines and penalties with respect to any proceeding to the full extent permitted
by any applicable portion of Agreement that shall not have been invalidated or
by any applicable law.
13.6 COOPERATION AND INTENT. The Corporation shall cooperate in good
faith with the Indemnitee and use its best efforts to ensure that the Indemnitee
is indemnified and/or reimbursed for liabilities described herein to the fullest
extent permitted by law.
13.7 SECURITY. To the fullest extent permitted by applicable law, the
Corporation may from time to time, but shall not be required to, provide such
insurance, collateral, letters of credit or other security devices as its Board
may deem appropriate to support or secure the Corporation's obligations under
this Agreement.
13.8 APPLICABLE LAW. This Agreement shall be governed by and
construed under the laws of the State of Florida.
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13.9 AMENDMENT. No amendment, modification or alteration of the terms
of this Agreement shall be binding unless in writing, dated subsequent to the
date of this Agreement, and executed by the parties.
13.10 BINDING EFFECT. The obligations of the Corporation to the
Indemnitee hereunder shall survive and continue as to the Indemnitee even if the
Indemnitee ceases to be a director, officer, employee, adviser and/or agent of
the Corporation. Each and all of the covenants, terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the successors and
assigns of the Corporation and, upon the death of the Indemnitee, to the benefit
of the estate, heirs, executors, administrators and personal representatives of
the Indemnitee.
13.11 EXECUTION IN COUNTERPARTS. This Agreement and any amendment may
be executed simultaneously or in counterparts, each of which together shall
constitute one and the same instrument.
13.12 EFFECTIVE DATE. The provisions of this Agreement shall cover
claims, actions, suits and proceedings whether now pending or hereafter
commenced and shall be retroactive to cover acts or omissions or alleged acts or
omissions which heretofore have taken place.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
EXECUTED AS OF THE DATE FIRST ABOVE WRITTEN.
NETSPEAK CORPORATION
By:______________________
Name:____________________
Title:___________________
THE INDEMNITEE:
_________________________
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