Exhibit 10.16
VIKO TECHNOLOGY, INC. & AUTOMATED TECHNOLOGY (PHIL.) INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of ________
by and between Viko Technology, Inc., a California corporation ("Viko"),
Automated Technology (Phil.) Inc., a company incorporated in the Philippines
("ATEC" and, together with Viko, the "Companies"), and ___________________
("Indemnitee").
WHEREAS, each of the Companies is a wholly owned subsidiary of Infiniti
Solutions Ltd., a company incorporated in Singapore (the "Parent Company");
WHEREAS, the indemnitee is a [director / officer] of the Parent Company,
and decisions made by the Parent Company are carried out by, and are for the
benefit of, the Companies;
WHEREAS, the Companies desire to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve the Companies and their
related entities, including without limitation the Parent Company;
WHEREAS, in order to induce Indemnitee to continue to provide services to
the Companies and their related entities, including without limitation the
Parent Company, the Companies wish to provide for the indemnification of, and
the advancement of expenses to, Indemnitee to the maximum extent permitted by
California law;
WHEREAS, the Companies and Indemnitee recognize the continued difficulty
in obtaining liability insurance for the Companies', and their related
entities', directors, officers, employees, agents and fiduciaries, the
significant increases in the cost of such insurance and the general reductions
in the coverage of such insurance;
WHEREAS, the Companies and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, agents and fiduciaries to expensive litigation risks at the same time
as the availability and coverage of liability insurance has been severely
limited; and
WHEREAS, in view of the considerations set forth above, the Companies
desire that Indemnitee shall be indemnified and advanced expenses by the
Companies as set forth herein;
NOW, THEREFORE, the Companies and Indemnitee hereby agree as set forth
below.
1. Certain Definitions.
(a) "Change in Control" shall mean, and shall be deemed to have
occurred if, on or after the date of this Agreement, (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the United States Securities
Exchange Act of 1934, as amended, (the "Exchange Act")), other than a trustee or
other fiduciary holding securities under an employee benefit plan of the Parent
Company acting in such capacity or a corporation owned directly or indirectly by
the stockholders of the Parent Company in substantially the same proportions as
their ownership of stock of the Parent Company, becomes the "beneficial owner"
(as defined in Rule 13d-3 under
said Exchange Act), directly or indirectly, of securities of the Parent Company
representing more than 50% of the total voting power represented by the Parent
Company's then outstanding Voting Securities, (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Parent Company and any new director whose election
by the Board of Directors or nomination for election by the Parent Company's
stockholders was approved by a vote of at least two thirds (2/3) 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 a majority thereof, or (iii) the stockholders
of the Parent Company approve a merger or consolidation of the Parent Company
with any other corporation, other than a merger or consolidation which would
result in the Voting Securities of the Parent Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of the surviving entity) at least a
majority of the total voting power represented by the Voting Securities of the
Parent Company or such surviving entity outstanding immediately after such
merger or consolidation, or the stockholders of the Parent Company approve a
plan of complete liquidation of the Parent Company or an agreement for the sale
or disposition by the Parent Company of (in one transaction or a series of
related transactions) all or substantially all of the Parent Company's assets.
(b) "Claim" shall mean, with respect to a Covered Event, any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.
(c) "Covered Event" shall mean any event or occurrence related to
the fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Parent Company or any subsidiary of the Parent Company, or is
or was serving at the request of the Parent Company as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action or inaction on the part of
Indemnitee while serving in such capacity.
(d) "Expenses" shall mean any and all expenses (including attorneys'
fees and all other costs, expenses and obligations incurred in connection with
investigating, defending, being a witness in or participating in (including on
appeal), or preparing to defend, to be a witness in or to participate in, any
action, suit, proceeding, alternative dispute resolution mechanism, hearing,
inquiry or investigation), judgments, fines, penalties and amounts paid in
settlement (if such settlement is approved in advance by the Parent Company,
which approval shall not be unreasonably withheld), actually and reasonably
incurred, of any Claim and any federal, state, local or foreign taxes imposed on
the Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement.
(e) "Expense Advance" shall mean a payment to Indemnitee pursuant to
Section 3 of Expenses in advance of the settlement of or final judgment in any
action, suit, proceeding or alternative dispute resolution mechanism, hearing,
inquiry or investigation which constitutes a Claim.
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(f) "Independent Legal Counsel" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Parent Company or
Indemnitee within the last three years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
(g) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan, and references to "serving
at the request of the Parent Company" shall include any service as a director,
officer, employee, agent or fiduciary of the Parent Company which imposes duties
on, or involves services by, such director, officer, employee, agent or
fiduciary with respect to an employee benefit plan, its participants or its
beneficiaries.
(h) References to the "Parent Company" shall include, in addition to
Infiniti Solutions Ltd, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger to which Infiniti
Solutions Ltd (or any of its wholly owned subsidiaries) is a party which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees, agents or fiduciaries, so that if
Indemnitee is or was a director, officer, employee, agent or fiduciary of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.
(i) "Reviewing Party" shall mean, subject to the provisions of
Section 2(d), any person or body appointed by the Parent Company's Board of
Directors in accordance with applicable law to review the Companies' obligations
hereunder and under applicable law, which may include a member or members of the
Parent Company's or Companies' boards of directors, Independent Legal Counsel or
any other person or body not a party to the particular Claim for which
Indemnitee is seeking indemnification.
(j) "Section" refers to a section of this Agreement unless otherwise
indicated.
(k) "Voting Securities" shall mean any securities of the Parent
Company that vote generally in the election of directors.
2. Indemnification.
(a) Indemnification of Expenses. Subject to the provisions of
Section 2(b) below, the Companies shall, jointly and severally, indemnify
Indemnitee, together with Indemnitee's partners, affiliates, employees, agents
and spouse and each person who controls any of them, for Expenses to the fullest
extent permitted by California law if Indemnitee was or is or becomes a party to
or witness or other participant in, or is threatened to be made a party to or
witness or other participant in, any Claim (whether by reason of or arising in
part out of a Covered Event), including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses.
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(b) Review of Indemnification Obligations. Notwithstanding the
foregoing, in the event any Reviewing Party shall have determined (in a written
opinion, in any case in which Independent Legal Counsel is the Reviewing Party)
that Indemnitee is not entitled to be indemnified hereunder under applicable
law, (i) the Companies shall have no further obligation under Section 2(a) to
make any payments to Indemnitee not made prior to such determination by such
Reviewing Party, and (ii) the Companies shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Companies) for all Expenses
theretofore paid in indemnifying Indemnitee; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee is entitled to
be indemnified hereunder under applicable law, any determination made by any
Reviewing Party that Indemnitee is not entitled to be indemnified hereunder
under applicable law shall not be binding and Indemnitee shall not be required
to reimburse the Companies for any Expenses theretofore paid in indemnifying
Indemnitee until a final judicial determination is made with respect thereto (as
to which all rights of appeal therefrom have been exhausted or lapsed).
Indemnitee's obligation to reimburse the Companies for any Expenses shall be
unsecured and no interest shall be charged thereon.
(c) Indemnitee Rights on Unfavorable Determination, Binding Effect.
If any Reviewing Party determines that Indemnitee substantively is not entitled
to be indemnified hereunder in whole or in part under applicable law, Indemnitee
shall have the right to commence litigation seeking an initial determination by
the court or challenging any such determination by such Reviewing Party or any
aspect thereof, including the legal or factual bases therefor, and, subject to
the provisions of Section 15, the Companies hereby consent to service of process
and to appear in any such proceeding. Absent such litigation, any determination
by any Reviewing Party shall be conclusive and binding on the Companies and
Indemnitee.
(d) Selection of Reviewing Party; Change in Control. If there has
not been a Change in Control, any Reviewing Party shall be selected by the
Parent Company's Board of Directors, and if there has been such a Change in
Control, any Reviewing Party with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnification of Expenses under this
Agreement or any other agreement or under the Companies' respective Articles of
Incorporation or Bylaws (collectively, the "Charter Documents") as now or
hereafter in effect, or under any other applicable law, if desired by
Indemnitee, shall be Independent Legal Counsel selected by Indemnitee and
approved by the Parent Company (which approval shall not be unreasonably
withheld). Such counsel, among other things, shall render its written opinion to
the Parent Company and Indemnitee as to whether and to what extent Indemnitee
would be entitled to be indemnified hereunder under applicable law and the
Companies agree to abide by such opinion. The Companies agree to pay the
reasonable fees of the Independent Legal Counsel referred to above and to
indemnify fully such counsel against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto. Notwithstanding any other provision
of this Agreement, the Companies shall not be required to pay Expenses of more
than one Independent Legal Counsel in connection with all matters concerning a
single Indemnitee, and such Independent Legal Counsel shall be the Independent
Legal Counsel for any or all other Indemnitees unless (i) the Companies
otherwise determine or (ii) any Indemnitee shall provide a written statement
setting forth in detail a reasonable objection to such Independent Legal Counsel
representing other Indemnitees.
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(e) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement other than Section 10 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
Claim, Indemnitee shall be indemnified by the Companies, jointly and severally,
against all Expenses incurred by Indemnitee in connection therewith.
3. Expense Advances.
(a) Obligation to Make Expense Advances. Upon receipt of a written
undertaking by or on behalf of the Indemnitee to repay such amounts if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
therefor by the Companies, the Companies shall make Expense Advances to
Indemnitee for Expenses actually incurred by Indemnitee.
(b) Form of Undertaking. Any written undertaking by the Indemnitee
to repay any Expense Advances hereunder shall be unsecured and no interest shall
be charged thereon.
(c) Determination of Reasonable Expense Advances. The parties agree
that for the purposes of any Expense Advance for which Indemnitee has made
written demand to the Companies in accordance with this Agreement, all Expenses
included in such Expense Advance that are certified by affidavit of Indemnitee's
counsel as being reasonable shall be presumed conclusively to be reasonable.
4. Procedures for Indemnification and Expense Advances.
(a) Timing of Payment. All payments of Expenses (including without
limitation Expense Advances) by the Companies to the Indemnitee pursuant to this
Agreement shall be made, to the fullest extent permitted by law, as soon as
practicable after written demand by Indemnitee therefor is presented to the
Companies, but in no event later than forty-five (45) business days after such
written demand by Indemnitee is presented to the Companies, except in the case
of Expense Advances, which shall be made no later than twenty (20) business days
after such written demand by Indemnitee is presented to the Companies.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to Indemnitee's right to be indemnified or Indemnitee's
right to receive Expense Advances under this Agreement, give the Companies
notice in writing as soon as practicable of any Claim made against Indemnitee
for which indemnification will or could be sought under this Agreement. Notice
to the Companies shall be directed to the Parent Company's Chief Executive
Officer at the address shown on the signature page of this Agreement (or such
other address as the Companies shall designate in writing to Indemnitee). In
addition, Indemnitee shall give the Companies such information and cooperation
as they may reasonably require and as shall be within Indemnitee's power.
(c) No Presumptions, Burden of Proof. For purposes of this
Agreement, the termination of any Claim by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any
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particular belief or that a court has determined that indemnification is not
permitted by this Agreement or applicable law. In addition, neither the failure
of any Reviewing Party to have made a determination as to whether Indemnitee has
met any particular standard of conduct or had any particular belief, nor an
actual determination by any Reviewing Party that Indemnitee has not met such
standard of conduct or did not have such belief, prior to the commencement of
legal proceedings by Indemnitee to secure a judicial determination that
Indemnitee should be indemnified under this Agreement or applicable law, shall
be a defense to Indemnitee's claim or create a presumption that Indemnitee has
not met any particular standard of conduct or did not have any particular belief
In connection with any determination by any Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Companies to establish that Indemnitee is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the
Companies of a notice of a Claim pursuant to Section 4(b) hereof, the Companies
have or the Parent Company has liability insurance in effect which may cover
such Claim, the Companies shall give prompt notice of the commencement of such
Claim to the insurers in accordance with the procedures set forth in the
respective policies. The Companies shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such Claim in accordance with the terms of such
policies.
(e) Selection of Counsel. In the event the Companies shall be
obligated hereunder to provide indemnification for or make any Expense Advances
with respect to the Expenses of any Claim, the Companies, if appropriate, shall
be entitled to assume the defense of such Claim with counsel approved by
Indemnitee (which approval shall not be unreasonably withheld) upon the delivery
to Indemnitee of written notice of the Companies' election to do so. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Companies, the Companies will not be liable to
Indemnitee under this Agreement for any fees or expenses of separate counsel
subsequently employed by or on behalf of Indemnitee with respect to the same
Claim; provided that, (i) Indemnitee shall have the right to employ Indemnitee's
separate counsel in any such Claim at Indemnitee's expense and (ii) if (A) the
employment of separate counsel by Indemnitee has been previously authorized by
the Companies, (B) Indemnitee shall have reasonably concluded that there may be
a conflict of interest between the Companies and Indemnitee in the conduct of
any such defense, or (C) the Companies shall not continue to retain such counsel
to defend such Claim, then the fees and expenses of Indemnitee's separate
counsel shall be Expenses for which Indemnitee may receive indemnification or
Expense Advances hereunder.
5. Additional Indemnification Rights, Nonexclusivity.
(a) Scope. The Companies hereby agree, jointly and severally, to
indemnify the Indemnitee to the fullest extent permitted by California law,
notwithstanding that such indemnification is not specifically authorized by the
other provisions of this Agreement, the Companies' Charter Documents or by
statute. In the event of any change after the date of this Agreement in any
applicable law, statute or rule which expands the right of a California
corporation or a Philippines corporation to indemnify a member of its, or a
related entities', board of directors or an officer, employee, agent or
fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits afforded by such change. In
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the event of any change in any applicable law, statute or rule which narrows the
right of a California corporation or a Philippines corporation to indemnify a
member of its, or a related entities', board of directors or an officer,
employee, agent or fiduciary, such change, to the extent not otherwise required
by such law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties' rights and obligations hereunder except
as set forth in Section 10(a) hereof.
(b) Nonexclusivity. The indemnification and the payment of Expense
Advances provided by this Agreement shall be in addition to any rights to which
Indemnitee may be entitled under the Companies' Charter Documents, any other
agreement, any vote of stockholders or disinterested directors, the General
Corporation Law of the State of California, the laws of the Philippines, or
otherwise. The indemnification and the payment of Expense Advances provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity even though subsequent thereto
Indemnitee may have ceased to serve in such capacity.
6. No Duplication of Payments. The Companies shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision of the Companies' Charter Documents or
otherwise) of the amounts otherwise payable hereunder.
7. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Companies for some or a portion of
Expenses incurred in connection with any Claim, but not, however, for all of the
total amount thereof, the Companies shall nevertheless, jointly and severally,
indemnify Indemnitee for the portion of such Expenses to which Indemnitee is
entitled.
8. Mutual Acknowledgment. Both the Companies and Indemnitee acknowledge
that in certain instances, applicable law or public policy may prohibit the
Companies from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Parent Company has undertaken or may be required in the
future to undertake with the United States Securities and Exchange Commission to
submit the question of indemnification to a court in certain circumstances for a
determination of the Companies' right under public policy to indemnify
Indemnitee.
9. Liability Insurance. To the extent the Companies or the Parent Company
maintains liability insurance applicable to directors, officers, employees,
agents or fiduciaries, Indemnitee shall be covered by such policies in such a
manner as to provide Indemnitee the same rights and benefits as are provided to
the most favorably insured of the Parent Company's directors, if Indemnitee is a
director; or of the Parent Company's officers, if Indemnitee is not a director
of the Parent Company but is an officer; or of the Parent Company's key
employees, agents or fiduciaries, if Indemnitee is not an officer or director
but is a key employee, agent or fiduciary.
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10. Exceptions. Notwithstanding any other provision of this Agreement, the
Companies shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for
Expenses resulting from acts, omissions or transactions for which Indemnitee is
prohibited from receiving indemnification under this Agreement or applicable law
or public policy; provided, however, that notwithstanding any limitation set
forth in this Section 10(a) regarding the Companies' obligations to provide
indemnification, Indemnitee shall be entitled under Section 3 to receive Expense
Advances hereunder with respect to any such Claim unless and until a court
having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that Indemnitee has engaged in acts, omissions or transactions for which
Indemnitee is prohibited from receiving indemnification under this Agreement or
applicable law.
(b) Claims Initiated by Indemnitee. To indemnify or make Expense
Advances to Indemnitee with respect to Claims initiated or brought voluntarily
by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i)
with respect to actions or proceedings brought to establish or enforce a right
to indemnification under this Agreement or any other agreement or insurance
policy or under the Companies' Charter Documents now or hereafter in effect
relating to Claims for Covered Events, (ii) in specific cases if the Board of
Directors has previously approved in writing the initiation or bringing of such
Claim, or (iii) as otherwise required under Section 317 of the California
General Corporation Law, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification or insurance recovery, as the
case may be.
(c) Lack of Good Faith. To indemnify Indemnitee for any Expenses
incurred by the Indemnitee with respect to any action instituted (i) by
Indemnitee to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each of
the material assertions made by the Indemnitee as a basis for such action was
not made in good faith or was frivolous, or (ii) by or in the name of the
Company or Companies to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each of
the material defenses asserted by Indemnitee in such action was made in bad
faith or was frivolous.
(d) Claims Under Section 16(b). To indemnify Indemnitee for expenses
and the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Exchange Act or any similar
successor statute.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. Binding Effect, Successors and Assign. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors, 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 Companies), spouses, heirs and personal and legal
representatives. The Companies shall require and cause any successor (whether
direct or indirect, and whether by purchase, merger, consolidation or otherwise)
to all,
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or substantially all, of the business or assets of the Companies, by written
agreement in form and substance satisfactory to Indemnitee, expressly to assume
and agree to perform this Agreement in the same manner and to the same extent
that the Companies would be required to perform if no such succession had taken
place. This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as a director, officer, employee, agent or fiduciary (as
applicable) of the Parent Company or of any other enterprise at the Parent
Company's request.
13. Expenses Incurred in Action Relating to Enforcement or Interpretation.
In the event that any action is instituted by Indemnitee under this Agreement or
under any liability insurance policies maintained by the Companies or Parent
Company to enforce or interpret any of the terms hereof or thereof, Indemnitee
shall be entitled to be indemnified for all Expenses incurred by Indemnitee with
respect to such action (including without limitation attorneys' fees),
regardless of whether Indemnitee is ultimately successful in such action, unless
as a part of such action a court having jurisdiction over such action makes a
final judicial determination (as to which all rights of appeal therefrom have
been exhausted or lapsed) that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous; provided, however, that until such final judicial determination is
made, Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action. In the event of an action
instituted by or in the name of the Parent Company or Companies under this
Agreement to enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be indemnified for all Expenses incurred by Indemnitee in
defense of such action (including without limitation costs and expenses incurred
with respect to Indemnitee's counterclaims and cross-claims made in such
action), unless as a part of such action a court having jurisdiction over such
action makes a final judicial determination (as to which all rights of appeal
therefrom have been exhausted or lapsed) that each of the material defenses
asserted by Indemnitee in such action was made in bad faith or was frivolous;
provided, however, that until such final judicial determination is made,
Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action.
14. Notice. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by international courier certified or registered
mail with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of this
Agreement, or as subsequently modified by written notice.
15. Consent to Jurisdiction. The Companies and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of California
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement.
16. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall
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be construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable. Moreover, the Companies and the Indemnitee
expressly acknowledge and agree that in the event a court of competent
jurisdiction determines that this Agreement is null and void with respect to
either of the Companies, the Agreement shall remain binding as to the remaining
Company.
17. Choice of Law. This Agreement, and all rights, remedies, liabilities,
powers and duties of the parties to this Agreement, shall be governed by and
construed in accordance with the laws of the State of California without regard
to principles of conflicts of laws.
18. Subrogation. In the event of payment under this Agreement, the
Companies shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Companies
effectively to bring suit to enforce such rights.
19. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by all parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed to be or shall constitute a waiver of any other provisions
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver.
20. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto. The parties to
this Agreement acknowledge and agree that this Section 20 does not refer to or
preclude any agreement relating to indemnification that may be entered between
the Indemnitee and the Parent Company.
21. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ, or to continue to serve on the board of directors or in any other
capacity of the Parent Company or any of its subsidiaries or affiliated
entities.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
VIKO TECHNOLOGY, INC. AUTOMATED TECHNOLOGY (PHIL.) INC
By By
_______________________ __________________________
Name: Name:
____________________ __________________________
Title: Title:
___________________ __________________________
Address: Address:
0000X XXXXXX XX. LIGHT INDUSTRY & SCIENCE PARK OF THE PHIL.
XXX XXXX, XXXXXXXXXX 00000 CABUYAO, LAGUNA
(000) 000-0000
AGREED TO AND ACCEPTED
INDEMNITEE:
___________________________________________________
(signature)
___________________________________________________
(print name)
Address:
___________________________________________________
___________________________________________________
___________________________________________________
