SANSWIRE CORP. INDEMNIFICATION AGREEMENT
EXHIBIT 10.3
This
Indemnification Agreement (this “Agreement”)
is dated as of February 8, 2011, and is between Sanswire Corp., a Delaware
corporation (the “Company”),
and Xxxxxxx
Xxxxxxx (“Indemnitee”).
RECITALS
A. Indemnitee’s
service to the Company substantially benefits the Company.
B. Individuals
are reluctant to serve as directors or officers of corporations or in certain
other capacities unless they are provided with adequate protection through
insurance or indemnification against the risks of claims and actions against
them arising out of such service.
C. Indemnitee
does not regard the protection currently provided by applicable law, the
Company’s governing documents and any insurance as adequate under the present
circumstances, and Indemnitee may not be willing to serve as a director or
officer without additional protection.
D. In
order to induce Indemnitee to continue to provide services to the Company, it is
reasonable, prudent and necessary for the Company to contractually obligate
itself to indemnify, and to advance expenses on behalf of, Indemnitee as
permitted by applicable law.
E. This
Agreement is a supplement to and in furtherance of the indemnification provided
in the Company’s certificate of incorporation and bylaws, and any resolutions
adopted pursuant thereto, and this Agreement shall not be deemed a substitute
therefor, nor shall this Agreement be deemed to limit, diminish or abrogate any
rights of Indemnitee thereunder.
The
parties therefore agree as follows:
1. Definitions.
(a) 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 twenty-five percent (25%) or more of the combined voting power of
the Company’s then outstanding securities;
(ii) Change in Board Composition.
During any period of two consecutive years (not including any period
prior to the execution of this Agreement), individuals who at the beginning of
such period constitute the Company’s board of directors, and any new directors
(other than a director designated by a person who has entered into an agreement
with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the board of directors 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 at least
a majority of the members of the Company’s board of directors;
(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 50% 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. 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 in response to any similar item
on any similar schedule or form) promulgated under the Securities Exchange Act
of 1934, as amended (the “Exchange
Act”), whether or not the Company is then subject to such reporting
requirement.
(1) “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.
(2) “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 (i) the stockholders of the
Company approving a merger of the Company with another entity or (ii) the
Company’s board of directors approving a sale of securities by the Company to
such Person.
(b) “Corporate
Status” describes the status of a person who is or was a director,
trustee, general partner, managing member, officer, employee, agent or fiduciary
of the Company or any other Enterprise.
(c) “DGCL”
means the General Corporation Law of the State of Delaware.
(d) “Disinterested
Director” means a director of the Company who is not and was not a party
to the Proceeding in respect of which indemnification is sought by
Indemnitee.
(e) “Enterprise”
means the Company and any other corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director,
trustee, general partner, managing member, officer, employee, agent or
fiduciary.
(f) “Expenses”
include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees and costs 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, being or preparing to be a witness in, or otherwise participating
in, a Proceeding. Expenses also include (i) 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, supersedeas
bond or other appeal bond or their equivalent, and (ii) for purposes of
Section 12(d), Expenses incurred by
Indemnitee in connection with the interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company. Expenses, however, shall
not include amounts paid in settlement by Indemnitee or the amount of judgments
or fines against Indemnitee.
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(g) “Independent
Counsel” means a law firm, or a partner or member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the
past five years has been, retained to represent (i) the Company or
Indemnitee in any matter material to either such party (other than as
Independent Counsel with respect to matters concerning Indemnitee under this
Agreement, or other indemnitees under similar indemnification agreements), or
(ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards
of professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
(h) “Proceeding”
means any threatened, pending or completed action, suit, arbitration, mediation,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or proceeding, whether brought in the right of the Company or otherwise
and whether of a civil, criminal, administrative or investigative nature,
including any appeal therefrom, in which Indemnitee was, is or will be involved
as a party, a potential party, a non-party witness or otherwise by reason of
(i) the fact that Indemnitee is or was a director or officer of the
Company, (ii) any action taken by Indemnitee or any action or inaction on
Indemnitee’s part while acting as a director or officer of the Company, or
(iii) the fact that he or she is or was serving at the request of the
Company as a director, trustee, general partner, managing member, officer,
employee, agent or fiduciary of the Company or any other Enterprise, in each
case whether or not serving in such capacity at the time any liability or
Expense is incurred for which indemnification or advancement of expenses can be
provided under this Agreement.
(i) Reference
to “other
enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to any employee
benefit plan; 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 a person who acted in good
faith and in a manner he or she reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to
the best interests of the Company” as referred to in this
Agreement.
2. Indemnity in Third-Party Proceedings.
The Company shall indemnify Indemnitee in accordance with the provisions
of this Section 2 if Indemnitee is,
or is threatened to be made, a party to or a participant in any Proceeding,
other than a Proceeding by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to the
fullest extent permitted by applicable law against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on his or her behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in good faith and in a
manner he or she 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 that his or her conduct was unlawful.
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3. Indemnity in Proceedings by or in the
Right of the Company. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be
made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the
fullest extent permitted by applicable law against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with
such Proceeding or any claim, issue or matter therein, if Indemnitee acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Company. No indemnification for Expenses shall be
made under this Section 3 in
respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court of competent jurisdiction to be liable to the
Company, unless and only to the extent that the Delaware Court of Chancery or
any court in which the Proceeding 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 indemnification for
such expenses as the Delaware Court of Chancery or such other court shall deem
proper.
4. Indemnification for Expenses of a
Party Who is Wholly or Partly Successful. To the extent that Indemnitee
is a party to or a participant in and is successful (on the merits or otherwise)
in defense of any Proceeding or any claim, issue or matter therein, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection therewith. To the extent
permitted by applicable law, if Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, in defense of one or
more but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with (a) each
successfully resolved claim, issue or matter and (b) any claim, issue or
matter related to any such successfully resolved claim, issuer or matter. For
purposes of this section, the termination of any claim, issue or matter in such
a Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
5. Indemnification for Expenses of a
Witness. To the extent that Indemnitee is, by reason of his or her
Corporate Status, a witness in any Proceeding to which Indemnitee is not a
party, Indemnitee shall be indemnified to the extent permitted by applicable law
against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
6. Additional
Indemnification.
(a) Notwithstanding
any limitation in Sections 2, 3 or 4, the Company shall indemnify Indemnitee
to the fullest extent permitted by applicable law if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding (including
a Proceeding by or in the right of the Company to procure a judgment in its
favor) against all Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his or her behalf in
connection with the Proceeding or any claim, issue or matter
therein.
(b) For
purposes of Section 6(a), the meaning of the phrase “to the fullest
extent permitted by applicable law” shall include, but not be limited
to:
(i) the
fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL; and
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(ii) the
fullest extent authorized or permitted by any amendments to or replacements of
the DGCL adopted after the date of this Agreement that increase the extent to
which a corporation may indemnify its officers and directors.
(c) If
the Indemnitee is entitled under any provision of this Agreement or otherwise to
indemnification or advancement of Expenses by the Company for a portion, but not
all, of any indemnification or Expenses incurred by or owing to the Indemnitee,
the Company shall indemnify or advance Expenses to the Indemnitee, as the case
may be, for the portion thereof to which Indemnitee is entitled.
7. Exclusions. Notwithstanding
any provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any Proceeding (or any part
of any Proceeding):
(a) for
which payment has actually been made to or on behalf of Indemnitee under any
statute, insurance policy, indemnity provision, vote or otherwise, except with
respect to any excess beyond the amount paid;
(b) for
an accounting or disgorgement of profits pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended, or similar provisions of federal,
state or local statutory law or common law, if Indemnitee is held liable
therefor (including pursuant to any settlement arrangements);
(c) for
any reimbursement of the Company by Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits realized by
Indemnitee from the sale of securities of the Company, as required in each case
under the Exchange Act (including any such reimbursements that arise from an
accounting restatement of the Company pursuant to Section 304 of the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx
Act”) or the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act,
or the payment to the Company of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx
Act), if Indemnitee is held liable therefor (including pursuant to any
settlement arrangements);
(d) initiated
by Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company or its directors, officers,
employees, agents or other indemnitees, unless (i) the Company’s board of
directors authorized the Proceeding (or the relevant part of the Proceeding)
prior to its initiation, (ii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company under
applicable law, (iii) otherwise authorized in Section 12(d) or (iv) otherwise required by
applicable law; or
(e) if
prohibited by applicable law.
8. Advances of Expenses. The
Company shall advance the Expenses incurred by Indemnitee in connection with any
Proceeding, and such advancement shall be made as soon as reasonably
practicable, but in any event no later than 30 days, after the receipt by the
Company of a written statement or statements requesting such advances from time
to time (which shall include invoices received by Indemnitee in connection with
such Expenses but, in the case of invoices in connection with legal services,
any references to legal work performed or to expenditure made that would cause
Indemnitee to waive any privilege accorded by applicable law shall not be
included with the invoice). Advances shall be unsecured and interest free and
made without regard to Indemnitee’s ability to repay such advances. Indemnitee
hereby undertakes to repay any advance to the extent that it is ultimately
determined that Indemnitee is not entitled to be indemnified by the Company.
This Section 8 shall not apply to
the extent advancement is prohibited by law and shall not apply to any
Proceeding for which indemnity is not permitted under this Agreement, but shall
apply to any Proceeding referenced in Section 7(b) or 7(c) prior to a determination that
Indemnitee is not entitled to be indemnified by the Company.
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9. Procedures for Notification and
Defense of Claim.
(a) Indemnitee
shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses as soon as
reasonably practicable following the receipt by Indemnitee of notice thereof.
The written notification to the Company shall include, in reasonable detail, a
description of the nature of the Proceeding and the facts underlying the
Proceeding. The failure by Indemnitee to notify the Company will not relieve the
Company from any liability which it may have to Indemnitee hereunder or
otherwise than under this Agreement, and any delay in so notifying the Company
shall not constitute a waiver by Indemnitee of any rights.
(b) If,
at the time of the receipt of a notice of a Proceeding pursuant to the terms
hereof, the Company has directors’ and officers’ liability insurance in effect,
the Company shall give prompt notice of the commencement of the Proceeding to
the insurers in accordance with the procedures set forth in the applicable
policies. The Company shall thereafter take all commercially-reasonable action
to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such Proceeding in accordance with the terms of such
policies.
(c) In
the event the Company may be obligated to make any indemnity in connection with
a Proceeding, the Company 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 for any fees or expenses of counsel subsequently
incurred by Indemnitee with respect to the same Proceeding. Notwithstanding the
Company’s assumption of the defense of any such Proceeding, the Company shall be
obligated to pay the fees and expenses of Indemnitee’s counsel to the extent
(i) the employment of counsel by Indemnitee is authorized by the Company,
(ii) counsel for the Company or Indemnitee shall have reasonably concluded
that there is a conflict of interest between the Company and Indemnitee in the
conduct of any such defense such that Indemnitee needs to be separately
represented, (iii) the fees and expenses are non-duplicative and reasonably
incurred in connection with Indemnitee’s role in the Proceeding despite the
Company’s assumption of the defense, (iv) the Company is not financially or
legally able to perform its indemnification obligations or (v) the Company
shall not have retained, or shall not continue to retain, such counsel to defend
such Proceeding. The Company shall have the right to conduct such defense as it
sees fit in its sole discretion. Regardless of any provision in this Agreement,
Indemnitee shall have the right to employ counsel in any Proceeding at
Indemnitee’s personal expense. The Company shall not be entitled, without the
consent of Indemnitee, to assume the defense of any claim brought by or in the
right of the Company.
(d) Indemnitee
shall give the Company such information and cooperation in connection with the
Proceeding as may be reasonably appropriate.
(e) Indemnitee
shall not enter into any settlement in connection with a Proceeding (or any part
thereof) without ten days prior written notice to the Company.
(f) The
Company shall not settle any Proceeding (or any part thereof) without
Indemnitee’s prior written consent, which shall not be unreasonably
withheld.
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10. Procedures upon Application for
Indemnification.
(a) To
obtain indemnification, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and information as is
reasonably available to Indemnitee and as is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification following
the final disposition of the Proceeding. The Company shall, as soon as
reasonably practicable after receipt of such a request for indemnification,
advise the board of directors that Indemnitee has requested indemnification. Any
delay in providing the request will not relieve the Company from its obligations
under this Agreement, except to the extent such failure is
prejudicial.
(b) Upon
written request by Indemnitee for indemnification pursuant to Section 10(a), a determination, if required by
applicable law, with respect to Indemnitee’s entitlement thereto shall be made
in the specific case (i) if a Change in Control shall have occurred, by
Independent Counsel in a written opinion to the Company’s board of directors, a
copy of which shall be delivered to Indemnitee or (ii) if a Change in
Control shall not have occurred, (A) by a majority vote of the
Disinterested Directors, even though less than a quorum of the Company’s board
of directors, (B) by a committee of Disinterested Directors designated by a
majority vote of the Disinterested Directors, even though less than a quorum of
the Company’s board of directors, (C) if there are no such Disinterested
Directors or, if such Disinterested Directors so direct, by Independent Counsel
in a written opinion to the Company’s board of directors, a copy of which shall
be delivered to Indemnitee or (D) if so directed by the Company’s board of
directors, by the stockholders of the Company. If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within ten days after such determination. Indemnitee shall cooperate with the
person, persons or entity making the determination with respect to Indemnitee’s
entitlement to indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or information that is
not privileged or otherwise protected from disclosure and that is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys’ fees and disbursements) reasonably
incurred by Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company, to the extent permitted
by applicable law.
(c) In
the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 10(b), the Independent Counsel shall be
selected as provided in this Section 10(c). If a Change in Control shall not have
occurred, the Independent Counsel shall be selected by the Company’s board of
directors, and the Company shall give written notice to Indemnitee advising him
or her of the identity of the Independent Counsel so selected. If a Change in
Control shall have occurred, the Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Company’s board of directors, in which event the preceding sentence shall
apply), and Indemnitee shall give written notice to the Company advising it of
the identity of the Independent Counsel so selected. In either event, Indemnitee
or the Company, as the case may be, may, within ten days after such written
notice of selection shall have been given, deliver to the Company or to
Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection
may be asserted only on the ground that the Independent Counsel so selected does
not meet the requirements of “Independent Counsel” as defined in Section 1 of this Agreement, and the objection
shall set forth with particularity the factual basis of such assertion. Absent a
proper and timely objection, the person so selected shall act as Independent
Counsel. If such written objection is so made and substantiated, the Independent
Counsel so selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court has determined that such objection is without
merit. If, within 20 days after the later of (i) submission by Indemnitee
of a written request for indemnification pursuant to Section 10(a) hereof and (ii) the final
disposition of the Proceeding, the parties have not agreed upon an Independent
Counsel, either the Company or Indemnitee may petition a court of competent
jurisdiction for resolution of any objection which shall have been made by the
Company or Indemnitee to the other’s selection of Independent Counsel and for
the appointment as Independent Counsel of a person selected by the court or by
such other person as the court shall designate, and the person with respect to
whom all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 10(b) hereof. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, the Independent
Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct then
prevailing).
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(d) The
Company agrees to pay the reasonable fees and expenses of any Independent
Counsel and to fully indemnify such counsel against any and all Expenses,
claims, liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
11. Presumptions and Effect of Certain
Proceedings.
(a) In
making a determination with respect to entitlement to indemnification hereunder,
the person, persons or entity making such determination shall, to the fullest
extent not prohibited by law, presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with Section 10(a) of this Agreement, and the Company
shall, to the fullest extent not prohibited by law, have the burden of proof to
overcome that presumption in connection with the making by such person, persons
or entity of any determination contrary to that presumption.
(b) The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his or her conduct was unlawful.
(c) For
purposes of any determination of good faith, Indemnitee shall be deemed to have
acted in good faith to the extent Indemnitee relied in good faith on
(i) the records or books of account of the Enterprise, including financial
statements, (ii) information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, (iii) the advice of legal counsel
for the Enterprise or its board of directors or counsel selected by any
committee of the board of directors or (iv) information or records given or
reports made to the Enterprise by an independent certified public accountant, an
appraiser, investment banker or other expert selected with reasonable care by
the Enterprise or its board of directors or any committee of the board of
directors. The provisions of this Section 11(c) shall not be deemed to be exclusive or
to limit in any way the other circumstances in which Indemnitee may be deemed to
have met the applicable standard of conduct set forth in this
Agreement.
(d) Neither
the knowledge, actions nor failure to act of any other director, officer, agent
or employee of the Enterprise shall be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
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12. Remedies of
Indemnitee.
(a) Subject
to Section 12(e), in the event that (i) a
determination is made pursuant to Section 10 of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 8 or 12(d) of this Agreement, (iii) no
determination of entitlement to indemnification shall have been made pursuant to
Section 10 of this Agreement within
90 days after the later of the
receipt by the Company of the request for indemnification or the final
disposition of the Proceeding, (iv) payment of indemnification
pursuant to this Agreement is not made (A) within ten days after a
determination has been made that Indemnitee is entitled to indemnification or
(B) with respect to indemnification pursuant to Sections 4, 5 and 12(d) of this Agreement, within 30 days after
receipt by the Company of a written request therefor, or (v) the Company or
any other person or entity takes or threatens to take any action to declare this
Agreement void or unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, Indemnitee the benefits
provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be
entitled to an adjudication by a court of competent jurisdiction of his or her
entitlement to such indemnification or advancement of Expenses. Alternatively,
Indemnitee, at his or her option, may seek an award in arbitration with respect
to his or her entitlement to such indemnification or advancement of Expenses, to
be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration in
accordance with this Agreement.
(b) Neither
(i) the failure of the Company, its board of directors, any committee or
subgroup of the board of directors, Independent Counsel or stockholders to have
made a determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor
(ii) an actual determination by the Company, its board of directors, any
committee or subgroup of the board of directors, Independent Counsel or
stockholders that Indemnitee has not met the applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has or
has not met the applicable standard of conduct. In the event that a
determination shall have been made pursuant to Section 10 of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 12 shall
be conducted in all respects as a de novo trial, or
arbitration, on the merits, and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 12, the
Company shall, to the fullest extent not prohibited by law, have the burden of
proving Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.
(c) To
the fullest extent not prohibited by law, the Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 12 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement. If a determination shall have
been made pursuant to Section 10 of
this Agreement that Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 12, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee’s statements not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(d) To
the extent not prohibited by law, the Company shall indemnify Indemnitee against
all Expenses that are incurred by Indemnitee in connection with any action for
indemnification or advancement of Expenses from the Company under this Agreement
or under any directors’ and officers’ liability insurance policies maintained by
the Company to the extent Indemnitee is successful in such action, and, if
requested by Indemnitee, shall (as soon as reasonably practicable, but in any
event no later than 60 days, after receipt by the Company of a written request
therefor) advance such Expenses to Indemnitee, subject to the provisions of
Section 8.
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(e) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification shall be required to be made prior to the final disposition
of the Proceeding.
13. Contribution. To the fullest
extent permissible under applicable law, if the indemnification provided for in
this Agreement is unavailable to Indemnitee, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amounts incurred by Indemnitee,
whether for Expenses, judgments, fines or amounts paid or to be paid in
settlement, in connection with any claim relating to an indemnifiable event
under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect
(i) the relative benefits received by the Company and Indemnitee as a
result of the events and transactions giving rise to such Proceeding; and
(ii) the relative fault of Indemnitee and the Company (and its other
directors, officers, employees and agents) in connection with such events and
transactions as well as any other relevant equitable
considerations. The relative fault of the Company and of the
Indemnitee shall be determined by reference to, among other things, the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent the circumstances resulting from such Proceeding and/or
Expenses. The Company agrees that it would not be just and equitable
if contribution pursuant to this Section 13 were determined by pro rata
allocation or any other method of allocation which does not take into account
the foregoing considerations.
14. Non-exclusivity. The rights of
indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Company’s certificate of
incorporation or bylaws, any agreement, a vote of stockholders or a resolution
of directors, or otherwise. To the extent that a change in Delaware law, whether
by statute or judicial decision, permits greater indemnification or advancement
of Expenses than would be afforded currently under the Company’s certificate of
incorporation and bylaws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change, subject to the restrictions expressly set forth herein
or therein. Except as expressly set forth herein, no right or remedy herein
conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. Except as expressly set forth herein, the assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
15. No Duplication of Payments.
The Company shall not be liable under this Agreement to make any payment
of amounts otherwise indemnifiable hereunder (or for which advancement is
provided hereunder) if and to the extent that Indemnitee has otherwise actually
received payment for such amounts under any insurance policy, contract,
agreement or otherwise.
16. Insurance. To the extent that
the Company maintains an insurance policy or policies providing liability
insurance for directors, trustees, general partners, managing members, officers,
employees, agents or fiduciaries of the Company or any other Enterprise,
Indemnitee shall be covered by such policy or policies to the same extent as the
most favorably-insured persons under such policy or policies in a comparable
position.
17. Subrogation. In the event of
any 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 papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.
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18. Services to the Company.
Indemnitee agrees to serve as a director or officer of the Company or, at
the request of the Company, as a director, trustee, general partner, managing
member, officer, employee, agent or fiduciary of another Enterprise, for so long
as Indemnitee is duly elected or appointed or until Indemnitee tenders his or
her resignation or is removed from such position. Indemnitee may at any time and
for any reason resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in
such position. This Agreement shall not be deemed an employment contract between
the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.
Indemnitee specifically acknowledges that any employment with the Company (or
any of its subsidiaries or any Enterprise) is at will, and Indemnitee may be
discharged at any time for any reason, with or without cause, with or without
notice, except as may be otherwise expressly provided in any executed, written
employment contract between Indemnitee and the Company (or any of its
subsidiaries or any Enterprise), any existing formal severance policies adopted
by the Company’s board of directors or, with respect to service as a director or
officer of the Company, the Company’s certificate of incorporation or bylaws or
the DGCL. No such document shall be subject to any oral modification
thereof.
19. Duration. This Agreement shall
continue until and terminate upon the later of (a) ten years after the date
that Indemnitee shall have ceased to serve as a director or officer of the
Company or as a director, trustee, general partner, managing member, officer,
employee, agent or fiduciary of any other Enterprise, as applicable; or
(b) one year after the final termination of any Proceeding, including any
appeal, then pending in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 12 of this Agreement relating
thereto.
20. Successors. This Agreement
shall be binding upon the Company and its successors and assigns, including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business or assets of the Company, and shall
inure to the benefit of Indemnitee and Indemnitee’s heirs, executors and
administrators. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by written
agreement, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place.
21. 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 or other applicable law, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law; (ii) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to give
the maximum effect to the intent of the parties hereto; and (iii) to the
fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
22. Enforcement. The Company
expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to
serve as a director or officer of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director or officer of
the Company.
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23. Entire Agreement. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof; provided, however, that this Agreement
is a supplement to and in furtherance of the Company’s certificate of
incorporation and bylaws and applicable law.
24. Modification and Waiver. No
supplement, modification or amendment to this Agreement shall be binding unless
executed in writing by the parties hereto. No amendment, alteration or repeal of
this Agreement shall adversely affect any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his or
her Corporate Status prior to such amendment, alteration or repeal. No waiver of
any of the provisions of this Agreement shall constitute or be deemed a waiver
of any other provision of this Agreement nor shall any waiver constitute a
continuing waiver.
25. Notices. All notices and other
communications required or permitted hereunder shall be in writing and shall be
mailed by registered or certified mail, postage prepaid, sent by facsimile or
electronic mail or otherwise delivered by hand, messenger or courier service
addressed:
(a) if
to Indemnitee, to Indemnitee’s address, facsimile number or electronic mail
address as shown on the signature page of this Agreement or in the Company’s
records, as may be updated in accordance with the provisions hereof;
or
(b) if
to the Company, to the attention of the Chief Executive Officer or General
Counsel of the Company at 000 Xxxxx Xxxx, Xxxxxxxx X0-000X, Room 0000, Xxxxxxx
Xxxxx Xxxxxx, XX 00000 or to the Company’s mailing address: Mail Code: SWC,
Xxxxxxx Space Center, FL 32899, or at such other current address as the Company
shall have furnished to Indemnitee.
Each such
notice or other communication shall for all purposes of this Agreement be
treated as effective or having been given (i) if delivered by hand,
messenger or courier service, when delivered (or if sent via a nationally-recognized
overnight courier service, freight prepaid, specifying next-business-day
delivery, one business day after deposit with the courier), (ii) if sent
via mail, at the
earlier of its receipt or five days after the same has been deposited in a
regularly-maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid, or (iii) if sent via facsimile, upon
confirmation of facsimile transfer or, if sent via electronic mail, upon
confirmation of delivery when directed to the relevant electronic mail address,
if sent during normal business hours of the recipient, or if not sent during
normal business hours of the recipient, then on the recipient’s next business
day.
26. Applicable Law and Consent to
Jurisdiction. This Agreement and the legal relations among the parties
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any action
or proceeding arising out of or in connection with this Agreement shall be
brought only in the Delaware Court of Chancery, and not in any other state or
federal court in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Delaware Court
of Chancery for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) appoint, to the extent such party is
not otherwise subject to service of process in the State of Delaware, The
Corporation Trust Company, Wilmington, Delaware as its agent in the State of
Delaware as such party’s agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same legal force
and validity as if served upon such party personally within the State of
Delaware, (iv) waive any objection to the laying of venue of any such
action or proceeding in the Delaware Court of Chancery, and (v) waive, and
agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court of Chancery has been brought in an improper or
inconvenient forum.
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27. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original but all of which together shall constitute
one and the same Agreement. This Agreement may also be executed and delivered by
facsimile signature and in counterparts, each of which shall for all purposes be
deemed to be an original but all of which together shall constitute one and the
same Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
28. Captions. The headings of the
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
thereof.
(signature page
follows)
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The
parties are signing this Indemnification Agreement as of the date stated in the
introductory sentence.
/s/ Xxxxx
X. Xxxxxxxx
(Signature)
Xxxxx X.
Xxxxxxxx
/s/ Xxxxx
X. Xxxxxxxx
President
and Chief Executive Officer
INDEMNITEE
/s/Xxxxxxx
Xxxxxxx
(Signature)
Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
000
Xxxxxxxx Xxxxxxx Xxxx
(Xxxxxx address)
(Xxxxxx address)
Xxxxxxx,
XX 00000
(City, State and ZIP)
(City, State and ZIP)