FORM OF DIRECTORS AND OFFICERS INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT (this “Agreement”),
dated
as of the [__] day of [________], 2007, is made by and between G8Wave, Inc.,
a
Delaware corporation (the “Corporation”)
and
[_________________] (the “Indemnitee”).
RECITALS
A. The
Corporation recognizes that competent and experienced persons are increasingly
reluctant to serve or to continue to serve as directors or officers of
corporations unless they are protected by comprehensive liability insurance
or
indemnification, or both, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to the fact
that the exposure frequently bears no reasonable relationship to the
compensation of such directors and officers;
B. The
statutes and judicial decisions regarding the duties of directors and officers
are often difficult to apply, ambiguous, or conflicting, and therefore fail
to
provide such directors and officers with adequate, reliable knowledge of legal
risks to which they are exposed or information regarding the proper course
of
action to take;
C. The
Corporation and Indemnitee recognize that plaintiffs often seek damages in
such
large amounts and the costs of litigation may be so enormous (whether or not
the
case is meritorious), that the defense and/or settlement of such litigation
is
often beyond the personal resources of directors and officers;
D. The
Corporation believes that it is unfair for its directors and officers to assume
the risk of huge judgments and other expenses which may occur in cases in which
the director or officer received no personal profit and in cases where the
director or officer was not culpable;
E. The
Corporation, after reasonable investigation, has determined that the liability
insurance coverage presently available to the Corporation may be inadequate
in
certain circumstances to cover all possible exposure for which Indemnitee should
be protected. The Corporation believes that the interests of the Corporation
and
its stockholders would best be served by a combination of such insurance and
the
indemnification by the Corporation of the directors and officers of the
Corporation;
F. The
Corporation’s ByLaws require the Corporation to indemnify its directors and
officers to the fullest extent permitted by the Delaware General Corporation
Law
(the “DGCL”).
The
ByLaws expressly provide that the indemnification provisions set forth therein
are not exclusive, and contemplate that contracts may be entered into between
the Corporation and its directors and officers with respect to
indemnification;
G. Section
145 of the DGCL (“Section
145”),
under
which the Corporation is organized, empowers the Corporation to indemnify its
officers, directors, employees and agents by agreement and to indemnify persons
who serve, at the request of the Corporation, as the directors, officers,
employees or agents of other corporations or enterprises, and expressly provides
that the indemnification provided by Section 145 is
not
exclusive;
Page
1 of
12
H. Section
102(b)(7) of the DGCL allows a corporation to include in its certificate of
incorporation a provision limiting or eliminating the personal liability of
a
director for monetary damages in respect of claims by shareholders and
corporations for breach of certain fiduciary duties, and the Corporation has
so
provided in its Certificate of Incorporation that each director shall be
exculpated from such liability to the maximum extent permitted by law;
I. The
Board
of Directors has determined that contractual indemnification as set forth herein
is not only reasonable and prudent but also promotes the best interests of
the
Corporation and its stockholders;
J. The
Corporation desires and has requested Indemnitee to serve or continue to serve
as a director or officer of the Corporation free from undue concern for
unwarranted claims for damages arising out of or related to such services to
the
Corporation; and
K. Indemnitee
is willing to serve, continue to serve or to provide additional service for
or
on behalf of the Corporation on the condition that he is furnished the indemnity
provided for herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
below, and other good and valuable consideration, the receipt and adequacy
of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Generally.
To the
fullest extent permitted by the laws of the State of Delaware:
(a) The
Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by
reason of the fact that Indemnitee is or was or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of the
Corporation, or while serving as a director or officer of the Corporation,
is or
was serving or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent (which, for purposes hereof, shall include
a trustee, partner or manager or similar capacity) of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
or
by reason of any action alleged to have been taken or omitted in such capacity.
For the avoidance of doubt, the foregoing indemnification obligation includes,
without limitation, claims for monetary damages against Indemnitee in respect
of
an alleged breach of fiduciary duties, to the fullest extent permitted under
Section 102(b)(7) of the DGCL as in existence on the date
hereof.
(b) The
indemnification provided by this Section
1
shall be
from and against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee or
on
Indemnitee’s behalf in connection with such action, suit or proceeding and any
appeal therefrom, but shall only be provided if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action,
suit or proceeding, had no reasonable cause to believe Indemnitee’s conduct was
unlawful.
Page
2 of
12
(c) Notwithstanding
the foregoing provisions of this Section
1,
in the
case of any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact
that
Indemnitee is or was a director, officer, employee or agent of the Corporation,
or while serving as a director or officer of the Corporation, is or was serving
or has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, no indemnification shall be made
in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation unless, and only to the extent that,
the Delaware Court of Chancery or the court in which such action or suit 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 indemnity for such expenses which the Delaware Court
of Chancery or such other court shall deem proper.
(d) The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of
itself, create a presumption that Indemnitee did not act in good faith and
in a
manner which Indemnitee reasonably believed to be in or not opposed to the
best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee’s conduct was
unlawful.
2. Successful
Defense: Partial Indemnification.
(a) To
the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section
1
hereof
or in defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred in connection therewith. For purposes of this Agreement and without
limiting the foregoing, if any action, suit or proceeding is disposed of, on
the
merits or otherwise (including a disposition without prejudice), without (a)
the
disposition being adverse to Indemnitee, (b) an adjudication that Indemnitee
was
liable to the Corporation, (c) a plea of guilty or nolo contendere by
Indemnitee, (d) an adjudication that Indemnitee did not act in good faith and
in
a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and (e) with respect to any criminal proceeding,
an adjudication that Indemnitee had reasonable cause to believe Indemnitee’s
conduct was unlawful, Indemnitee shall be considered for the purposes hereof
to
have been wholly successful with respect thereto.
(b) If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Corporation for some or a portion of the expenses (including attorneys’
fees), judgments, fines or amounts paid in settlement actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with any action,
suit, proceeding or investigation, or in defense of any claim, issue or matter
therein, and any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion
of such expenses (including attorneys’ fees), judgments, fines or amounts paid
in settlement to which Indemnitee is entitled.
Page
3 of
12
3. Determination
That Indemnification Is Proper.
Any
indemnification hereunder shall (unless otherwise ordered by a court) be made
by
the Corporation unless a determination is made that indemnification of such
person is not proper in the circumstances because he or she has not met the
applicable standard of conduct set forth in Section
1(b)
hereof.
Any such determination shall be made (a) by a majority vote of the directors
who
are not parties to the action, suit or proceeding in question (“disinterested
directors”),
even
if less than a quorum, (b) by a majority vote of a committee of disinterested
directors designated by majority vote of disinterested directors, even if less
than a quorum, (c) by a majority vote of a quorum of the outstanding shares
of
stock of all classes entitled to vote on the matter, voting as a single class,
which quorum shall consist of stockholders who are not at that time parties
to
the action, suit or proceeding in question, (d) by independent legal counsel,
or
(e) by a court of competent jurisdiction.
4. Advance Payment of Expenses; Notification and Defense of Claim.
(a) Expenses
(including attorneys’ fees) incurred by Indemnitee in defending a threatened or
pending civil, criminal, administrative or investigative action, suit or
proceeding, or in connection with an enforcement action pursuant to Section
5(b), shall
be
paid by the Corporation in advance of the final disposition of such action,
suit
or proceeding within thirty (30) days after receipt by the Corporation of (i)
a
statement or statements from Indemnitee requesting such advance or advances
from
time to time, and (ii) an undertaking by or on behalf of Indemnitee to repay
such amount or amounts, only if, and to the extent that, it shall ultimately
be
determined that Indemnitee is not entitled to be indemnified by the Corporation
as authorized by this Agreement or otherwise.
(b) Promptly
after receipt by Indemnitee of notice of the commencement of any action, suit
or
proceeding, Indemnitee shall, if a claim thereof is to be made against the
Corporation hereunder, notify the Corporation in writing of the commencement
thereof. The failure to so promptly notify the Corporation of the commencement
of the action, suit or proceeding, or Indemnitee’s request for indemnification,
will not relieve the Corporation from any liability that it may have to
Indemnitee hereunder, except to the extent the Corporation is prejudiced in
its
defense of such action, suit or proceeding as a result of such
failure.
(c) In
the
event the Corporation shall be obligated to pay the expenses of Indemnitee
with
respect to an action, suit or proceeding, as provided in this Agreement, the
Corporation, if appropriate, shall be entitled to assume the defense of such
action, suit or proceeding, with counsel reasonably acceptable to Indemnitee,
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 Corporation, the Corporation will not be liable
to Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same action, suit or proceeding, provided
that
(i) Indemnitee shall have the right to employ Indemnitee’s own counsel in such
action, suit or proceeding at Indemnitee’s expense and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized in writing
by
the Corporation, (B) counsel to the Corporation or Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position,
or
reasonably believes that a conflict is likely to arise, on any significant
issue
between the Corporation and Indemnitee in the conduct of any such defense or
(C)
the Corporation shall not, in fact, have employed counsel to assume the defense
of such action, suit or proceeding, then the fees and expenses of Indemnitee’ s
counsel shall be at the expense of the Corporation, except as otherwise
expressly provided by this Agreement. The Corporation shall not be entitled,
without the consent of Indemnitee, to assume the defense of any claim brought
by
or in the right of the Corporation or as to which counsel for the Corporation
or
Indemnitee shall have reasonably made the conclusion provided for in
clause
(ii)
above.
Page
4 of
12
(d) Notwithstanding
any other provision of this Agreement to the contrary, to the extent that
Indemnitee is, by reason of Indemnitee’s corporate status with respect to the
Corporation or any corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee is or was serving or has
agreed to serve at the request of the Corporation, a witness or otherwise
participates in any action, suit or proceeding at a time when Indemnitee is
not
a party in the action, suit or proceeding, the Corporation shall indemnify
Indemnitee against all expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
5. Procedure
for Indemnification.
(a) To
obtain
indemnification, Indemnitee shall promptly submit to the Corporation a written
request, including therein or therewith such documentation and information
as is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
Corporation shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnitee has requested
indemnification.
(b) The
Corporation’s determination whether to grant Indemnitee’s indemnification
request shall be made promptly, and in any event within thirty (30) days
following receipt of a request for indemnification pursuant to Section
5(a). The
right
to indemnification, as granted by Section
1
of this
Agreement, shall be enforceable by Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or
fails to respond within such 60-day period. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance of
costs, charges and expenses under Section
4
hereof
where the required undertaking, if any, has been received by the Corporation)
that Indemnitee has not met the standard of conduct set forth in Section
1
hereof,
but the burden of proving such defense shall be on the Corporation. Neither
the
failure of the Corporation (including its Board of Directors or one of its
committees, its independent legal counsel, or its stockholders) to have made
a
determination prior to the commencement of such action that indemnification
of
Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct set forth in Section
1
hereof,
nor the fact that there has been an actual determination by the Corporation
(including its Board of Directors or one of its committees, its independent
legal counsel, or its stockholders) that Indemnitee has not met such 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. The
Indemnitee’s expenses (including attorneys’ fees) incurred in connection with
successfully establishing Indemnitee’s right to indemnification, in whole or in
part, in any such proceeding or otherwise shall also be indemnified by the
Corporation.
Page
5 of
12
(c) The
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement upon submission of a request for indemnification pursuant to this
Section
5, and
the
Corporation shall have the burden of proof in overcoming that presumption in
reaching a determination contrary to that presumption.
6. Insurance
and Subrogation.
(a) The
Corporation may purchase and maintain insurance on behalf of an Indemnitee
who
is or was or has agreed to serve at the request of the Corporation as a director
or officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against, and incurred by, Indemnitee or on
Indemnitee’s behalf in any such capacity, or arising out of Indemnitee’s status
as such, whether or not the Corporation would have the power to indemnify
Indemnitee against such liability under the provisions of this Agreement. If
the
Corporation has such insurance in effect at the time the Corporation receives
from Indemnitee any notice of the commencement of a proceeding, the Corporation
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the policy. The Corporation
shall
thereafter take all reasonably necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result
of
such proceeding in accordance with the terms of such policy.
(b) In
the
event of any payment by the Corporation under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee with respect to any insurance policy. The Indemnitee
shall execute all documents required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable
the Corporation to bring suit to enforce such rights in accordance with the
terms of such insurance policy. The Corporation shall pay or reimburse all
expenses actually and reasonably incurred by Indemnitee in connection with
such
subrogation.
(c) The
Corporation shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) if and to the extent that Indemnitee has otherwise actually received
such payment under this Agreement or any insurance policy, contract, agreement
or otherwise.
7. Certain
Definitions.
For
purposes of this Agreement, the following definitions shall apply:
(a) The
term
“action,
suit or proceeding”
shall
be broadly construed and shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement, arbitration and appeal of, and
the giving of testimony in, any threatened, pending or completed claim, action,
suit or proceeding, whether civil, criminal, administrative or investigative.
Page
6 of
12
(b) The
term
“by
reason of the fact that Indemnitee is or was a director, officer, employee
or
agent of the Corporation, or while serving as a director or officer of the
Corporation, is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise”
shall
be broadly construed and shall include, without limitation, any actual or
alleged act or omission to act.
(c) The
term
“expenses”
shall
be broadly and reasonably construed and shall include, without limitation,
all
direct and indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys’ fees and related disbursements, appeal bonds, other
out-of-pocket costs and reasonable compensation for time spent by Indemnitee
for
which Indemnitee is not otherwise compensated by the Corporation or any third
party, provided that the rate of compensation and estimated time involved is
approved by the Board, which approval shall not be unreasonably withheld),
actually and reasonably incurred by Indemnitee in connection with either the
investigation, defense or appeal of a proceeding or establishing or enforcing
a
right to indemnification under this Agreement, Section 145 of the General
Corporation Law of the State of Delaware or otherwise.
(d) The
term
“judgments,
fmes and amounts paid in settlement”
shall
be broadly construed and shall include, without limitation, all direct and
indirect payments of any type or nature whatsoever (including, without
limitation, all penalties and amounts required to be forfeited or reimbursed
to
the Corporation), as well as any penalties or excise taxes assessed on a person
with respect to an employee benefit plan).
(e) The
term
“Corporation”
shall
include, without limitation and in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request
of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or
other enterprise, shall stand in the same position under the provisions of
this
Agreement with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate
existence had continued.
(f) The
term
“other
enterprises”
shall
include, without limitation, employee benefit plans.
(g) The
term
“serving
at the request of the Corporation”
shall
include, without limitation, any service as a director, officer, employee or
agent of the Corporation 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.
Page
7 of
12
(h) A
person
who acted in good faith and in a manner such person reasonably believed to
be in
the interest 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 Corporation”
as
referred to in this Agreement.
8. Limitation
on Indemnification.
Notwithstanding any other provision herein to the contrary, the Corporation
shall not be obligated pursuant to this Agreement:
(a) Claims
Initiated by Indemnitee.
To
indemnify or advance expenses to Indemnitee with respect to an action, suit
or
proceeding (or part thereof) initiated by Indemnitee, except with respect to
an
action, suit or proceeding brought to establish or enforce a right to
indemnification (which shall be governed by the provisions of Section
8(b)
of this
Agreement), unless such action, suit or proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
(b) Action
for Indemnification.
To
indemnify Indemnitee for any expenses incurred by Indemnitee with respect to
any
action, suit or proceeding instituted by Indemnitee to enforce or interpret
this
Agreement, unless Indemnitee is successful in establishing Indemnitee’s right to
indemnification in such action, suit or proceeding, in whole or in part, or
unless and to the extent that the court in such action, suit or proceeding
shall
determine that, despite Indemnitee’s failure to establish their right to
indemnification, Indemnitee is entitled to indemnity for such expenses;
provided,
however,
that
nothing in this Section
8(b)
is
intended to limit the Corporation’s obligation with respect to the advancement
of expenses to Indemnitee in connection with any such action, suit or proceeding
instituted by Indemnitee to enforce or interpret this Agreement, as provided
in
Section
4
hereof.
(c) Section
16 Violations.
To
indemnify Indemnitee on account of any proceeding with respect to which final
judgment is rendered against Indemnitee for payment or an accounting of profits
arising from the purchase or sale by Indemnitee of securities in violation
of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar
successor statute.
(d) Employment
Agreements; Non-compete and Non-disclosure.
To
indemnify Indemnitee in connection with proceedings or claims for breach of
Indemnitee’s employment or other agreement with the Corporation, or involving
the enforcement of non-compete and/or non-disclosure agreements or the
non-compete and/or nondisclosure provisions of employment, consulting or similar
agreements the Indemnitee may be a party to with the Corporation, or any
subsidiary of the Corporation or any other applicable foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, if any.
9. Certain
Settlement Provisions.
The
Corporation shall have no obligation to indemnify Indemnitee under this
Agreement for amounts paid in settlement of any action, suit or proceeding
without the Corporation’s prior written consent, which shall not be unreasonably
withheld. The Corporation shall not settle any action, suit or proceeding in
any
manner that would impose any time or other obligation on Indemnitee without
Indemnitee’s prior written consent, which shall not be unreasonably withheld.
Page
8 of
12
10. Savings
Clause.
If any
provision or provisions of this Agreement shall be invalidated on any ground
by
any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify Indemnitee as to costs, charges and expenses (including attorneys’
fees), judgments, fmes and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to
the
full extent permitted by any applicable portion of this Agreement that shall
not
have been invalidated and to the full extent permitted by applicable law.
11. Contribution.
In order
to provide for just and equitable contribution in circumstances in which the
indemnification provided for herein is held by a court of competent jurisdiction
to be unavailable to Indemnitee in whole or in part, it is agreed that, in
such
event, the Corporation shall, to the fullest extent permitted by law, contribute
to the payment of Indemnitee’s costs, charges and expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, in an amount that is just and equitable in the circumstances,
taking into account, among other things, contributions by other directors and
officers of the Corporation or others pursuant to indemnification agreements
or
otherwise; provided,
that,
without limiting the generality of the foregoing, such contribution shall not
be
required where such holding by the court is due to (a) the failure of Indemnitee
to meet the standard of conduct set forth in Section 1
hereof,
or (b) any limitation on indemnification set forth in Section
6(c),
8
or
9
hereof.
12. Form
and Delivery of Communications.
Any
notice, request or other communication required or permitted to be given to
the
parties under this Agreement shall be in writing and either delivered in person
or sent by telecopy, telex, telegram, overnight mail or courier service, or
certified or registered mail, return receipt requested, postage prepaid, to
the
parties at the following addresses (or at such other addresses for a party
as
shall be specified by like notice):
If
to the
Corporation:
G8Wave,
Inc.
000
Xxxxxxxxx Xxx
Xxxxxx,
XX 00000
Fax
number (000) 000-0000
with
a
copy to:
Eisner
& Xxxxx
0000
Xxxxxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxxx
Xxxxx, XX 00000
Attention
Xxxxx Xxxxxx, Esq.
If
to
Indemnitee:
Page
9 of
12
_______________
_______________
_______________
13. Subsequent
Legislation.
If the
DGCL is amended after adoption of this Agreement to expand further the
indemnification permitted to directors or officers, then the Corporation shall
indemnify Indemnitee to the fullest extent permitted by the DGCL, as so amended.
14. Nonexclusivity.
The
provisions for indemnification and advancement of expenses set forth in this
Agreement shall not be deemed exclusive of any other rights which Indemnitee
may
have under any provision of law, the Corporation’s Certificate of Incorporation
or Bylaws, in any court in which a proceeding is brought, the vote of the
Corporation’s stockholders or disinterested directors, other agreements or
otherwise, and Indemnitee’s rights hereunder shall continue after Indemnitee has
ceased acting as an agent of the Corporation and shall inure to the benefit
of
the heirs, executors and administrators of Indemnitee. However, no amendment
or
alteration of the Corporation’s Certificate of Incorporation or ByLaws or any
other agreement shall adversely affect the rights provided to Indemnitee under
this Agreement
15. Interpretation
of Agreement.
It is
understood that the parties hereto intend this Agreement to be interpreted
and
enforced so as to provide indemnification to Indemnitee to the fullest extent
now or hereafter permitted by law.
16. Entire
Agreement.
This
Agreement and the documents expressly referred to herein constitute the entire
agreement between the parties hereto with respect to the matters covered hereby,
and any other prior or contemporaneous oral or written understandings or
agreements with respect to the matters covered hereby are expressly superseded
by this Agreement.
17. Modification
and Waiver.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any
other provision hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver.
18. Successor
and Assigns.
All of
the terms and provisions of this Agreement shall be binding upon, shall inure
to
the benefit of and shall be enforceable by the parties hereto and their
respective successors, assigns, heirs, executors, administrators and legal
representatives. In the event that the Corporation sells or otherwise transfers
all or substantially all of its business or assets (whether by purchase, merger,
consolidation or otherwise), this Agreement shall, concurrently with and as
a
condition to such transaction, and without the need for any action of any kind
by any party, be deemed to be assumed by the direct successor entity and by
any
direct and indirect affiliates with respect to which Indemnitee serves as an
officer or director, and such entities shall perform this Agreement in the
same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place.
Page
10
of 12
19.
Supersedes
Prior Agreements.
This
Agreement supersedes any prior indemnification agreement between Indemnitee
and
the Corporation or its predecessors.
20. Governing
Law.
This
Agreement shall be governed exclusively by and construed according to the laws
of the State of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware. If a court of
competent jurisdiction shall make a final determination that the provisions
of
the law of any state other than Delaware govern indemnification by the
Corporation of its officers and directors, then the indemnification provided
under this Agreement shall in all instances be enforceable to the fullest extent
permitted under such law, notwithstanding any provision of this Agreement to
the
contrary.
21. Employment
Rights.
Nothing
in this Agreement is intended to create in Indemnitee any right to employment
or
continued employment.
22. Counterparts.
This
Agreement may be executed in two or more counterparts and by facsimile or
electronic signature, each of which shall be deemed to be an original and all
of
which together shall be deemed to be one and the same instrument,
notwithstanding that both parties are not signatories to the original or same
counterpart.
23. Headings.
The
section and subsection headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE TO
FOLLOW]
Page
11
of 12
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered to be
effective as of the date first above written.
|
COMPANY:
|
INDEMNITEE:
|
|
G8WAVE,
INC.
By:
_________________________
Name:
Its:
|
By:
_________________________
Name:
|
By:
_________________________
Page
12
of 12
