INDEMNITY AGREEMENT
THIS AGREEMENT is made effective as of the 13th day of June,
2001.
BETWEEN:
SIDEWARE SYSTEMS INC., a corporation having its head office at
1810 Xxxxxx Xxxxx Drive, Reston, Virginia 20190-
5316
(the "Company")
AND:
XXXXX XXXXXXXXXX, Executive, of 1600 - 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(the "Director")
WHEREAS:
A. The Director is a director of the Company; and
B. The Company considers it desirable and in its best interests
to enter into this Agreement to set out the circumstances and manner in
which the Director may be indemnified in respect of certain liabilities
which the Director may incur as a result of his acting as a director
and/or officer of the Company or any of its subsidiaries.
IN WITNESS WHEREOF that in consideration of the premises and of the sum
of ONE DOLLAR ($1.00) now paid by the Director to the Company (the
receipt and sufficiency of which is hereby acknowledged by the parties
hereto) and in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. General Indemnity. The Company agrees to indemnify, defend
and save the Director harmless from and against any and all costs, charges,
expenses, fees, income and other taxes, damages or liabilities (including
legal or other professional fees), whether incurred alone or jointly with
others, which the Director may suffer, sustain, incur or be required to pay
arising out of or incurred in respect of any action, suit, proceeding,
investigation or claim which may be brought, commenced, made, prosecuted or
threatened against the Director or any of the other directors or officers of
the Company or any of its subsidiaries or which the Director may be required
to participate in or provide evidence in respect of (any of the same
hereinafter being referred to as a "Claim") howsoever arising and whether
arising in law, equity or under statute, regulation or governmental
ordinance of any jurisdiction, for or in respect of any act, deed, matter
or thing done,
made, permitted or omitted by the Director or the Company
or any of its subsidiaries arising out of, or in connection with or
incidental to the affairs of the Company or any of its subsidiaries or
the exercise by the Director of his powers or the performance of his
duties as a director and/or officer of the Company or any of its
subsidiaries including, without limitation, (i) any and all costs,
charges, expenses, fees, damages or liabilities which the Director may
suffer, sustain or incur or be required to pay in connection with
investigating, initiating, defending, appealing, preparing for, providing
evidence in respect of, or instructing and receiving the advice of his
own or other counsel in respect of, any Claim, and (ii) any amount paid
to settle any Claim; provided that the indemnity provided for herein will
not be available to the extent that it is finally determined by a court
of competent jurisdiction that:
(a) in so acting the Director was not acting honestly and in good
faith with a view to the best interests of the Company or its
subsidiary, as the case may be; or
(b) in the case of a criminal or administrative action or
proceeding, the Director did not have reasonable grounds for
believing that his conduct was lawful.
2. Specific Indemnity for Statutory Obligations. Without
limiting the generality of the provisions of section 1 hereof, the
Company agrees, to the maximum extent permitted by law, to indemnify and
save the Director harmless from and against any and all Claims arising by
operation of statute and incurred by or imposed upon the Director in
relation to the affairs of the Company or any of its subsidiaries in the
Director's capacity as director and/or officer, including but not limited
to, all statutory obligations to creditors, employees, suppliers,
contractors, subcontractors, and any government or any agency or division
of any government, whether federal, provincial, state, regional or
municipal.
3. Taxation Indemnification. Without limiting the generality of
the provisions of section 1, the Company agrees that the payment of any
indemnity to or reimbursement of the Director hereunder shall include any
amount the Director may be required to pay on account of applicable
income or goods or services taxes arising out the payment of such
indemnity or reimbursement, provided, however, that any amount required
to be paid with respect to such taxes shall be payable by the Company
only upon the Director remitting or being required to remit any amount
payable on account of such taxes.
4. Partial Indemnification. If the Director is entitled to
indemnification hereunder by the Company for some or a portion of the
costs, charges, expenses, fees, damages or liabilities incurred by the
Director in respect of any Claim but is not entitled to indemnification
for the total amount thereof, the Company shall nevertheless indemnify
the Director for the portion thereof to which the Director is entitled.
5. No Presumption as to Absence of Good Faith. The determination
of any Claim by judgment, order, settlement or conviction, or upon a plea
of "nolo contendere" or its equivalent, shall not, of itself, create any
presumption that the Director did not act honestly and in good faith with
a view to the best interests of the Company or any of its subsidiaries
or, in the case of a criminal or
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administrative action or proceeding, that he did not have reasonable grounds
for believing that his conduct was lawful (unless the judgment or order of
the court specifically finds otherwise).
6. Determination of Right to Indemnification. If the payment of
indemnification hereunder requires the approval of a court the Company
will use its best efforts to obtain such approval, and to provide the
Director with notice of any application for such approval. The Director
may also apply for such approval. Any legal costs incurred by the
Director in connection with any court proceedings seeking such approval
shall also be subject to indemnification pursuant to section 1 hereof.
7. Pre-payment of Expenses. Costs, charges, expenses and fees
incurred by the Director in investigating, defending, appealing,
preparing for, providing evidence in respect of, or instructing and
receiving the advice of his counsel in regard to, any Claim or other
matter for which the Director may be entitled to indemnification or
reimbursement hereunder, shall, at the request of the Director, be paid
or reimbursed by the Company in advance or forthwith upon such amount
being due and payable, it being understood and agreed that, in the event
it is ultimately determined by a court of competent jurisdiction that the
Director was not entitled to be so indemnified, or was not entitled to be
fully so indemnified, that the Director shall indemnify and hold harmless
the Company, of and from such amount, or the appropriate portion thereof,
so paid or reimbursed.
8. Other Rights and Remedies Unaffected. The indemnification
provided for in this Agreement shall not derogate from or exclude any
other rights to which the Director may be entitled under any applicable
law, the Articles of the Company or any of its subsidiaries, this
Agreement, any applicable policy of insurance, guarantee or third-party
indemnity, any vote of shareholders of the Company or any of its
subsidiaries, or otherwise, both as to matters arising out of his
capacity as a director and/or officer of the Company or any of its
subsidiaries, or as to matters arising out of any other capacity in which
the Director may act for or on behalf of the Company or any of its
subsidiaries.
9. Notices of the Proceedings. The Director shall give
reasonable notice, in writing, to the Company upon his being served with
any statement of claim, writ, notice of motion, indictment, subpoena,
investigation order or other document commencing or continuing any Claim
involving the Company or any of its subsidiaries or the Director, and the
Company agrees to notify the Director, in writing, forthwith upon the
Company or any of its subsidiaries being served with any statement of
claim, writ, notice of motion, indictment, subpoena, investigation order
or other document commencing or continuing any Claim involving the
Director.
10. Participation in Proceedings. The Company shall be entitled
to participate at its own expense in the defense of any Claim, and, if
the Company so elects, the Company shall be entitled to assume the
defense of such Claim at its expense. The Director shall be entitled to
retain his own counsel in respect of the Claim and the fees, costs and
expenses of such separate counsel retained by the Director shall be
included in the amounts for which the Director is indemnified under
section 1.
11. Insurance. The Company hereby covenants and agrees to obtain
(to the extent such insurance is available in the insurance market at
commercially reasonable rates) Directors and
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Officers Insurance for the benefit of the Director with respect to the
performance of his duties as a director and/or officer of the Company and
any of its subsidiaries and upon obtaining such insurance to maintain (to
the extent such insurance is available in the insurance market at
commercially reasonable rates) the same in force and effect for the benefit
of the Director for a period of at least three years after the first date
on which the Director is neither a director nor an officer of the Company.
The Company agrees to remit promptly to the Director a copy of all insurance
policies, applications, endorsements and renewals relating to such insurance.
12. Effective Time. This Agreement shall be deemed to have effect
as and from the first date that the Director became a director and/or
officer of the Company.
13. Extensions, Modifications. This Agreement is absolute and
unconditional and the obligations of the Company shall not be affected,
discharged, impaired, mitigated or released by the extension of time,
indulgence or modification which the Director may extend or make with any
person regarding any Claim against the Director.
14. Insolvency. The liability of the Company under this Agreement
shall not be affected, discharged, impaired, mitigated or released by
reason of the discharge or release of the Director in any bankruptcy,
insolvency, receivership or other similar proceeding of creditors.
15. Multiple Proceedings. No action or proceeding brought or
instituted under this Agreement and no recovery pursuant thereto shall be
a bar or defence to any further action or proceeding which may be brought
under this Agreement.
16. Modification. No modification of this Agreement shall be
valid unless the same is in writing and signed by each of the parties
hereto.
17. Termination. The obligations of the Company shall not
terminate or be released upon the Director ceasing to act as a director
and/or officer of the Company or any of its subsidiaries at any time or
times. The obligations of the Company hereunder may be terminated or
released only by a written instrument executed by the Director.
18. Notices. Any notice to be given by one party to the other
shall be sufficient if delivered by hand or sent by means of electronic
transmission (in which case any message so transmitted shall be
immediately confirmed in writing and mailed by prepaid registered mail),
addressed, as the case may be:
(a) To the Company:
0000 - 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Secretary
Fax: (000) 000-0000
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(b) To the Director:
0000 - 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx
or at such other address of which notice is given by the parties pursuant
to the provisions of this section. Such notice shall be deemed to have
been received when delivered, if delivered. Any notice sent by means of
electronic transmission shall be deemed to have been given and received
on the day it is transmitted, provided that if such day is not a business
day then the notice shall be deemed to have been given and received on
the next business day following.
19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Virginia and all
disputes arising under this Agreement shall be referred to, and the
parties hereto irrevocably attorn to, the jurisdiction of the courts of
the State of Virginia.
20. Further Assurances. The parties hereto agree that they shall
do all such further acts, deeds or things and execute and deliver all
such further documents as may be necessary or advisable for the purpose
of assuring and conferring on the Director the rights hereby created or
intended, and of giving effect to and carrying out the intention or
facilitating the performance of the terms of this Agreement.
21. Interpretation. Words importing the singular number only
shall include the plural and vice versa and words importing the use of
any gender shall include any other gender, the word "or" is not exclusive
and the word "including" is not limiting whether or not non-limiting
language (such as "without limitation" or "but not limited to" or words
of similar import) is used with reference thereto.
22. Invalid Terms Severable. If any provision of this Agreement
is determined at any time by a court of competent jurisdiction to be
invalid, illegal or unenforceable such provision or part thereof shall be
severable from this Agreement and the remainder of this Agreement will be
construed as if such invalid, illegal or unenforceable provision or part
thereof had been deleted herefrom.
23. Binding Effect. All of the agreements, conditions and terms
of this Agreement shall extend to and be binding upon the Company and its
successors and assigns and shall enure to the benefit of and may be
enforced by the Director and his heirs, executors, administrators and
other legal representatives, successors and assigns.
24. Independent Legal Advice. The Director acknowledges that he
has been advised to obtain independent legal advice with respect to
entering into this Agreement, that he has obtained such independent legal
advice or has expressly waived such advice, and that he is entering into
this
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Agreement with full knowledge of the contents hereof, of his own
free will and with full capacity and authority to do so.
25. Power and Authority. The Company represents and warrants to
the Director that this Agreement when executed and delivered by it will
constitute its legal, valid and binding obligation subject to the
provisions of this Agreement and the obligations hereunder are
enforceable against it in accordance with the terms hereof and that the
execution and delivery of this Agreement and the performance thereof by
it has been duly and properly authorized by all necessary corporate
action.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
SIDEWARE SYSTEMS INC.
"Xxxxxx Xxxxx"
---------------------------
By: Xxxxxx Xxxxx
Title: Director
XXXXX XXXXXXXXXX
"Xxxxx Xxxxxxxxxx"
---------------------------
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