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Exhibit 10.20
INDEMNITY AGREEMENT
By this INDEMNITY AGREEMENT (this "Agreement"), Integrated Information
Systems, Inc., a Delaware corporation (the "Company"), and the undersigned
officer or member of its Board of Directors ("Indemnitee") warrant, covenant,
and agree as follows:
WHEREAS, Indemnitee is an officer and/or a member of the Board of
Directors of the Company and in such capacity is performing a valuable service
for the Company; and
WHEREAS, the Company's Certificate of Incorporation provides for
indemnification of officers and directors to the fullest extent authorized by
the Delaware General Corporation Law; and
WHEREAS, the Delaware General Corporation Law provides that the
indemnification rights provided thereunder are not exclusive, and that
agreements may be entered into between Company and its officers and the members
of its Board of Directors with respect to indemnification; and
WHEREAS, in order to induce Indemnitee to serve as an officer or member
of the Board of Directors of the Company, the Company desires to enter into this
contract with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued service as
an officer and/or director after the date hereof the parties hereto agree as
follows:
1. Indemnification of Indemnitee. Subject to Section 2 below, the
Company shall hold harmless and indemnify Indemnitee against any and all
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with any
threatened, pending, or completed action, suit, or proceeding, whether, civil,
criminal, administrative, or investigative to which Indemnitee is, was, or at
any time becomes a party, or is threatened to be made a party, by reason of the
fact that Indemnitee is, was, or at any time becomes a director, officer,
employee, or agent of the Company, or is or was serving or at any time serves at
the request of the Company as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, to the
extent currently set forth in the Company's Certificate of Incorporation, a copy
of which is attached hereto as Exhibit A. No amendment or termination of the
Company's Certificate of Incorporation shall affect or terminate the contracted
rights granted to the Indemnitee hereunder.
2. Limitations on Indemnification. No indemnity pursuant to Section 1
hereof shall be paid by the Company:
(a) Except to the extent the aggregate of losses to be
indemnified hereunder exceeds the amount of losses for which the
Indemnitee is indemnified pursuant to any policy of insurance purchased
and maintained by the Company;
(b) In respect to remuneration paid to Indemnitee if it shall
be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
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(c) On account of any suit in which final judgment is rendered
against Indemnitee or an accounting of profits made from the purchase
or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any law; or
(d) If a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful;
3. Continuation of Indemnification. All obligations of the Company
hereunder shall continue during the period Indemnitee is a director, officer,
employee, or agent of the Company (or is or was serving at the request of the
Company as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Indemnitee shall be subject to any possible claim or
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, or investigative, by reason of the fact that Indemnitee was a director
of the Company or serving in any other capacity referred to herein.
4. Notification and Defense of Claim. Indemnitee shall promptly notify
the Company of any matter which is or may be the subject of any indemnification
claim hereunder. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit, or proceeding, Indemnitee will notify the
Company thereof. With respect to any such action, suit, or proceeding:
(a) The Company will be entitled to participate therein at its
own expense;
(b) Except as otherwise provided below, to the extent that it
may wish, the Company jointly with any other indemnifying party may
assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election
so to assume the defense thereof, the Company will not be liable to
Indemnitee for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall
have the right to employ counsel in such action, suit, or proceeding
but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall be at the
expense of Indemnitee unless (i) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) Indemnitee shall
have reasonably concluded that there may be a material conflict of
interest between the Company and Indemnitee in the conduct of the
defense of such action or (iii) the Company shall not in fact have
employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be borne by the Company.
The Company shall not be entitled to assume the defense of any action,
suit, or proceeding brought by or on behalf of the Company or as to
which Indemnitee shall have made the determination provided for in (ii)
above.
(c) The Company shall not be liable to indemnify Indemnitee
under the Agreement for any amounts paid in settlement of any action or
claim effected without its written consent. The Company shall not
settle any action or claim in any manner which would impose any
material penalty or limitation on Indemnitee without Indemnitee's
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written consent. Neither the Company nor Indemnitee will unreasonably
withhold its or his consent to any settlement proposed by the other of
any matter for which indemnity is provided hereunder, including any
settlement including a penalty or limitation on the Indemnitee.
5. Prepaid Expenses. The expenses (including attorneys' fees) incurred
by Indemnitee in investigating, defending, or appealing any threatened, pending,
or completed action, suit, or proceeding covered hereunder, whether civil,
criminal, administrative, or investigative, including without limitation any
action by or in the right of the Company (other than expenses to be paid
directly by the Company in assuming the defense of any matter covered hereby
under Section 4(b) hereof), shall be paid in advance by the Company.
6. Repayment of Expenses. Indemnitee shall reimburse the Company for
all expenses paid by the Company in defending any civil or criminal action,
suit, or proceeding against Indemnitee in the event and only to the extent that
it shall be finally determined that Indemnitee is not entitled to be indemnified
by the Company for such expenses under the Agreement or otherwise.
7. Other Rights and Remedies. The rights provided by any provision of
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under any provision of law or of the Company's
Certificate of Incorporation, any Bylaw, this or other agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while occupying any of
the positions or having any of the relationships referred to in Section 1 of
this Agreement, and shall continue after Indemnitee has ceased to occupy such
position or have such relationship.
8. Enforcement. If the Indemnitee is required to bring any action to
enforce rights or to collect monies due under this Agreement and is successful
in such action, the Company shall reimburse Indemnitee for all of Indemnitee's
reasonable fees and expenses in bringing and pursuing such action.
9. Separability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
10. Miscellaneous. This Agreement shall be interpreted and enforced in
accordance with the laws of Delaware. This Agreement shall be binding upon
Indemnitee and upon Company, its successors and assigns, and shall inure to the
benefit of Indemnitee, his heirs, personal representatives and assigns and to
the benefit of the Company, its successors and assigns. No amendment,
modification, termination or cancellation of this Agreement, other than pursuant
to Section 9, shall be effective unless in writing signed by both parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of , .
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INTEGRATED INFORMATION SYSTEMS, INC.
By:
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Its:
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Indemnitee
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