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EXHIBIT 10.1
OMNISKY CORPORATION
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of
___________, 2000 by and between OmniSky Corporation, a Delaware corporation
(the "Company"), and ____________________ ("Indemnified Person").
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnified Person, to serve the Company
and its related entities;
WHEREAS, in order to induce Indemnified Person to continue to provide
services to the Company, the Company wishes to provide for the indemnification
of, and the advancement of expenses to, Indemnified Person to the maximum extent
permitted by law;
WHEREAS, the Company and Indemnified Person recognize the continued
difficulty in obtaining liability insurance for the Company's 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 Company and Indemnified Person 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 Company
desires that Indemnified Person shall be indemnified and advanced expenses by
the Company as set forth herein;
NOW, THEREFORE, the Company and Indemnified Person 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 Securities Exchange Act of 1934, as
amended), other than a stockholder holding greater than 25% of the total voting
power represented by the Company's outstanding voting securities as of the first
date above written, a trustee or other fiduciary holding securities under an
employee benefit plan of the Company acting in such capacity or a corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company, becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the
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Company representing more than 50% of the total voting power represented by the
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 Company and any new director whose election by the
Board of Directors or nomination for election by the Company's stockholders was
approved by a vote of at least two thirds (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
Company approve a merger or consolidation of the Company with any other
corporation other than a merger or consolidation which would result in the
Voting Securities of the 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 80% of the total voting
power represented by the Voting Securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one
transaction or a series of related transactions) all or substantially all of the
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 Indemnified
Person 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) References to the "Company" shall include, in addition to
OmniSky Corporation any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which OmniSky Corporation
(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 Indemnified
Person 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, Indemnified Person shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnified Person would have with respect to such constituent
corporation if its separate existence had continued.
(d) "Covered Event" shall mean any event or occurrence related to
the fact that Indemnified Person is or was a director, officer, employee, agent
or fiduciary of the Company, or any subsidiary of the Company, or is or was
serving at the request of the 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 Indemnified
Person while serving in such capacity.
(e) "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
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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 Company, which approval shall not be unreasonably withheld) of
any Claim and any federal, state, local or foreign taxes imposed on the
Indemnified Person as a result of the actual or deemed receipt of any payments
under this Agreement.
(f) "Expense Advance" shall mean a payment to Indemnified Person
pursuant to Section 3 of Expenses in advance of the settlement of or final
judgement in any action, suit, proceeding or alternative dispute resolution
mechanism, hearing, inquiry or investigation which constitutes a Claim.
(g) "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 Company or Indemnified
Person within the last three years (other than with respect to matters
concerning the rights of Indemnified Person under this Agreement, or of other
Indemnified Persons under similar indemnity agreements).
(h) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnified Person with respect to an employee benefit plan; and references to
"serving at the request of the Company" shall include any service as a director,
officer, employee, agent or fiduciary of the 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; and
if Indemnified Person acted in good faith and in a manner Indemnified Person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnified Person shall be deemed to have acted in
a manner "not opposed to the best interests of the Company" as referred to in
this Agreement.
(i) "Reviewing Party" shall mean, subject to the provisions of
Section 2(d), any person or body appointed by the Board of Directors, and
approved by the Indemnified Person, which approval shall not be unreasonably
withheld, in accordance with applicable law to review the Company's obligations
hereunder and under applicable law, which may include a member or members of the
Company's Board of Directors, Independent Legal Counsel or any other person or
body not a party to the particular Claim for which Indemnified Person is seeking
indemnification.
(j) "Section" refers to a section of this Agreement unless otherwise
indicated.
(k) "Voting Securities" shall mean any securities of the Company
that vote generally in the election of directors.
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2. Indemnification.
(a) Indemnification of Expenses. Subject to the provisions of
Section 2(b) below, the Company shall indemnify Indemnified Person for Expenses
to the fullest extent permitted by law if Indemnified Person 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.
(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 Indemnified Person is not entitled to be indemnified hereunder under
applicable law, (i) the Company shall have no further obligation under Section
2(a) to make any payments to Indemnified Person not made prior to such
determination by such Reviewing Party, and (ii) the Company shall be entitled to
be reimbursed by Indemnified Person (who hereby agrees to reimburse the Company)
for all Expenses theretofore paid to Indemnified Person to which Indemnified
Person is not entitled hereunder under applicable law; provided, however, that
if Indemnified Person has commenced or thereafter commences legal proceedings in
a court of competent jurisdiction to secure a determination that Indemnified
Person is entitled to be indemnified hereunder under applicable law, any
determination made by any Reviewing Party that Indemnified Person is not
entitled to be indemnified hereunder under applicable law shall not be binding
and Indemnified Person shall not be required to reimburse the Company for any
Expenses theretofore paid in indemnifying Indemnified Person until a final
judicial determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed). Indemnified Person's obligation
to reimburse the Company for any Expenses shall be unsecured and no interest
shall be charged thereon.
(c) Indemnified Person Rights on Unfavorable Determination; Binding
Effect. If any Reviewing Party determines that Indemnified Person substantively
is not entitled to be indemnified hereunder in whole or in part under applicable
law, Indemnified Person 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 Company hereby
consents 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 Company and Indemnified Person.
(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 Board
of Directors, and approved by the Indemnified Person, which approval shall not
be unreasonably withheld, and if there has been such a Change in Control (other
than a Change in Control which has been approved by a majority of the Company's
Board of Directors who were directors immediately prior to such Change in
Control), any Reviewing Party with respect to all matters thereafter arising
concerning the rights of Indemnified Person to indemnification of Expenses under
this Agreement or any other agreement or under the
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Company's Certificate of Incorporation or Bylaws as now or hereafter in effect,
or under any other applicable law, if desired by Indemnified Person, shall be
Independent Legal Counsel selected by Indemnified Person and approved by the
Company (which approval shall not be unreasonably withheld). Such counsel, among
other things, shall render its written opinion to the Company and Indemnified
Person as to whether and to what extent Indemnified Person would be entitled to
be indemnified hereunder under applicable law and the Company agrees to abide by
such opinion. The Company agrees 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 Company shall not be
required to pay Expenses of more than one Independent Legal Counsel in
connection with all matters concerning a single Indemnified Person, and such
Independent Legal Counsel shall be the Independent Legal Counsel for any or all
other Indemnified Persons unless (i) the Company otherwise determines or (ii)
any Indemnified Person shall provide a written statement setting forth in detail
a reasonable objection to such Independent Legal Counsel representing other
Indemnified Persons.
(e) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement other than Section 10 hereof, to the extent that
Indemnified Person has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in defense of
any Claim, Indemnified Person shall be indemnified against all Expenses incurred
by Indemnified Person in connection therewith.
3. Expense Advances.
(a) Obligation to Make Expense Advances. Upon receipt of a written
undertaking by or on behalf of the Indemnified Person to repay such amounts if
it shall ultimately be determined that the Indemnified Person is not entitled to
be indemnified therefore by the Company hereunder under applicable law, the
Company shall make Expense Advances to Indemnified Person.
(b) Form of Undertaking. Any obligation to repay any Expense
Advances hereunder pursuant to a written undertaking by the Indemnified Person
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 Indemnified Person has
made written demand to the Company in accordance with this Agreement, all
Expenses included in such Expense Advance that are certified by affidavit of
Indemnified Person's counsel as being reasonable shall be presumed conclusively
to be reasonable.
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4. Procedures for Indemnification and Expense Advances.
(a) Timing of Payments. All payments of Expenses (including without
limitation Expense Advances) by the Company to the Indemnified Person pursuant
to this Agreement shall be made to the fullest extent permitted by law as soon
as practicable after written demand by Indemnified Person therefor is presented
to the Company, but in no event later than thirty (30) days after such written
demand by Indemnified Person is presented to the Company, except in the case of
Expense Advances, which shall be made no later than ten (10) business days after
such written demand by Indemnified Person is presented to the Company.
(b) Notice/Cooperation by Indemnified Person. Indemnified Person
shall give the Company notice in writing as soon as practicable of any Claim
made against Indemnified Person for which indemnification and/or Expense
Advances, will or could be sought under this Agreement; provided, however, that
the failure to so notify the Company shall not relieve the Company of its
obligations hereunder except to the extent such failure has materially
prejudiced the Company. Notice to the Company shall be directed to the Chief
Executive Officer of the Company at the address shown on the signature page of
this Agreement (or such other address as the Company shall designate in writing
to Indemnified Person). In addition, each of the Indemnified Person and the
Company shall give the other party such information related to the claim and
cooperation as the other party may reasonably require and as shall be within
such party'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 Indemnified
Person did not meet any particular standard of conduct or have any 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 Indemnified Person
has met any particular standard of conduct or had any particular belief, nor an
actual determination by any Reviewing Party that Indemnified Person has not met
such standard of conduct or did not have such belief, prior to the commencement
of legal proceedings by Indemnified Person to secure a judicial determination
that Indemnified Person should be indemnified under this Agreement under
applicable law, shall be a defense to Indemnified Person's claim or create a
presumption that Indemnified Person 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 Indemnified
Person is entitled to be indemnified and/or Expense Advances hereunder under
applicable law, the burden of proof shall be on the Company to establish that
Indemnified Person is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 4(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company 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 Company shall
thereafter take
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all necessary or desirable action to cause such insurers to pay, on behalf of
the Indemnified Person, 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 Company shall be
obligated hereunder to provide indemnification for or make any Expense Advances
with respect to the Expenses of any Claim, the Company, if appropriate, shall be
entitled to assume the defense of such Claim with counsel approved by
Indemnified Person (which approval shall not be unreasonably withheld) upon the
delivery to Indemnified Person of written notice of the Company's election to do
so. After delivery of such notice, approval of such counsel by Indemnified
Person and the retention of such counsel by the Company, the Company will not be
liable to Indemnified Person under this Agreement for any fees or expenses of
separate counsel subsequently retained by or on behalf of Indemnified Person
with respect to the same Claim; provided that, (i) Indemnified Person shall have
the right to employ Indemnified Person's separate counsel in any such Claim at
Indemnified Person's expense and (ii) if (A) the employment of separate counsel
by Indemnified Person has been previously authorized by the Company, (B)
Indemnified Person shall have reasonably concluded that there may be a conflict
of interest between the Company and Indemnified Person in the conduct of any
such defense, or (C) the Company shall not continue to retain such counsel to
defend such Claim, then the fees and expenses of Indemnified Person's separate
counsel shall be Expenses for which Indemnified Person may receive
indemnification or Expense Advances hereunder.
5. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify the Indemnified
Person to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company's Certificate of Incorporation, the Company's Bylaws 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 Delaware
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, it is the intent of the parties hereto that
Indemnified Person shall enjoy by this Agreement the greater benefits afforded
by such change. In the event of any change in any applicable law, statute or
rule which narrows the right of a Delaware corporation to indemnify a member of
its 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
Indemnified Person may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any other agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of the State of Delaware,
or otherwise. The indemnification and the payment of Expense Advances provided
under this Agreement shall continue as to Indemnified Person for any action
taken or not taken while serving in an indemnified capacity even though
subsequent thereto Indemnified Person may have ceased to serve in such capacity.
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6. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnified Person to the extent Indemnified Person has otherwise actually
received payment from or on behalf of the Company (under any insurance policy,
provision of the Company's Certificate of Incorporation, Bylaws or otherwise) of
the amounts otherwise payable hereunder.
7. Partial Indemnification. If Indemnified Person is entitled under any
provision of this Agreement or otherwise to indemnification by the Company for
some or a portion of Expenses incurred in connection with any Claim, but not,
however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnified Person for the portion of such Expenses to which
Indemnified Person is entitled.
8. Mutual Acknowledgment. Both the Company and Indemnified Person
acknowledge that in certain instances, federal law or applicable public policy
may prohibit the Company from indemnifying its directors, officers, employees,
agents or fiduciaries under this Agreement or otherwise. Indemnified Person
understands and acknowledges that the Company has undertaken or may be required
in the future to undertake with the Securities and Exchange Commission to submit
the question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnified Person.
9. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnified Person shall be covered by such policies in such a manner as to
provide Indemnified Person the same rights and benefits as are provided to the
most favorably insured of the Company's directors, if Indemnified Person is a
director; or of the Company's officers, if Indemnified Person is not a director
of the Company but is an officer; or of the Company's key employees, agents or
fiduciaries, if Indemnified Person is not an officer or director but is a key
employee, agent or fiduciary.
10. Exceptions. Notwithstanding any other provision of this Agreement,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify or make Expense
Advances to Indemnified Person with respect to Claims arising out of acts,
omissions or transactions for which Indemnified Person is prohibited from
receiving indemnification under applicable law.
(b) Claims Initiated by Indemnified Person. To indemnify or make
Expense Advances to Indemnified Person with respect to Claims initiated or
brought voluntarily by Indemnified Person 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 Company's Certificate of
Incorporation or Bylaws now or hereafter in effect relating to Claims for
Covered Events, (ii) in specific cases if the Board of Directors
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has approved the initiation or bringing of such Claim, or (iii) as otherwise
required under Section 145 of the Delaware General Corporation Law, regardless
of whether Indemnified Person ultimately is determined to be entitled to such
indemnification, Expense Advances, or insurance recovery, as the case may be.
(c) Lack of Good Faith. To indemnify Indemnified Person for any
Expenses incurred by the Indemnified Person with respect to any action
instituted (i) by Indemnified Person 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 Indemnified Person 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 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 Indemnified Person in such action was
made in bad faith or was frivolous.
(d) Claims Under Section 16(b). To indemnify Indemnified Person for
Expenses and the payment of profits arising from the purchase and sale by
Indemnified Person of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, 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 Assigns. 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 Company), spouses, heirs and
personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business or assets of the Company, by written agreement in form and
substance satisfactory to Indemnified Person, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place. This
Agreement shall continue in effect regardless of whether Indemnified Person
continues to serve as a director, officer, employee, agent or fiduciary (as
applicable) of the Company or of any other enterprise at the Company's request.
13. Expenses Incurred in Action Relating to Enforcement or
Interpretation. In the event that any action is instituted by Indemnified Person
under this Agreement or under any liability insurance policies maintained by the
Company to enforce or interpret any of the terms hereof or thereof, Indemnified
Person shall be entitled to be indemnified for all Expenses incurred by
Indemnified Person with respect to such action (including, without limitation,
attorneys' fees), regardless of whether Indemnified Person 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 Indemnified
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Person 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,
Indemnified Person 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 Company under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnified Person
shall be entitled to be indemnified for all Expenses incurred by Indemnified
Person in defense of such action (including without limitation costs and
expenses incurred with respect to Indemnified Person'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 Indemnified Person in such action was made in
bad faith or was frivolous; provided, however, that until such final judicial
determination is made, Indemnified Person shall be entitled under Section 3 to
receive payment of Expense Advances hereunder with respect to such action.
14. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or in the right of the Company against
Indemnified Person, Indemnified Person's estate, spouse, heirs, executors or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless asserted by the timely
filing of a legal action within such two year period; provided, however, that if
any shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.
15. 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 domestic 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.
16. Consent to Jurisdiction. The Company and Indemnified Person each
hereby irrevocably consent to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall be commenced, prosecuted and continued only in the
Court of Chancery of the State of Delaware in and for New Castle County, which
shall be the exclusive and only proper forum for adjudicating such a claim.
17. 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 be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
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18. 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 Delaware
as applied to contracts between Delaware residents entered into and to be
performed entirely in the State of Delaware without regard to principles of
conflicts of laws.
19. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnified Person, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.
20. Amendment and Termination. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless it is in writing
signed by both the 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.
21. 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.
22. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving Indemnified Person any right to be
retained in the employ of the Company or any of its subsidiaries or affiliated
entities.
[REMAINDER OF PAGE REMAINS BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
OMNISKY CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
Address:
AGREED TO AND ACCEPTED
INDEMNIFIED PERSON:
By:__________________________________
(Signature)
Name:________________________________
(Print Name)
Address:
SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT
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