EXHIBIT 10.05
INDEMNIFICATION AGREEMENT
This Agreement made and entered as of this day of , 199
("AGREEMENT"), by and between Digital Certificates International, Inc., a
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Delaware corporation (the "COMPANY," which term shall include any one or more of
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its subsidiaries where appropriate), and ("INDEMNITEE"):
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WHEREAS, it is essential to the Company that it be able to retain and
attract as directors and officers the most capable persons available;
WHEREAS, the substantial increase in corporate litigation that may subject
directors and officers to litigation costs and risks and the recent limitations
on the availability of directors and officers liability insurance have made and
will make it increasingly difficult for the Company to attract and retain such
persons;
WHEREAS, the Bylaws of the Company require the Company to indemnify and
advance expenses to its directors and officers to the fullest extent permitted
by law and authorize the Company to enter into agreements providing for such
indemnification; and
WHEREAS, in recognition of the fact that the Indemnitee continues to serve
as an officer and/or a director of the Company in part in reliance on the
Company's Bylaws and the fact of Indemnitee's need for written assurance that
the substantial protection promised by such Bylaws will be available to
Indemnitee (regardless, among other things, of any amendment to or revocation of
such Bylaws or any change in the composition of the Company's Board of Directors
or any acquisition transaction relating to the Company), and due to the
potential inadequacy of the Company's directors and officers liability insurance
coverage or the unavailability of such coverage, the Company wishes to provide
in this Agreement for the indemnification of, and the advancing of expenses to,
Indemnitee to the fullest extent (whether partial or complete) permitted by law
and as set forth in this Agreement, and, to the extent insurance is obtained,
for the continued coverage of Indemnitee under the Company's directors and
officers liability insurance policies;
NOW, THEREFORE; in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. DEFINITIONS. For purposes of this Agreement:
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(a) "CHANGE OF CONTROL" shall mean the occurrence of
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any of the following events:
(1) any Person who is not now the beneficial owner, directly or
indirectly, of twenty percent (20%) or more of the Company's Common Stock,
becomes the beneficial owner, directly or indirectly, of twenty percent
(20%) or more of the Company's Common Stock and thereafter individuals who
were not directors of the Company prior to the date such Person became a
twenty percent (20%) owner are elected as directors pursuant to an
arrangement or understanding with, or upon the request of or nomination by,
such Person and constitute at least one-third (1/3) of the Company's Board
of Directors; or
(2) there occurs a change of control of the Company of a nature
that would be required to be reported in response to Item 6(e) of Schedule
14A promulgated under the Securities Exchange Act of 1934 (the "EXCHANGE
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ACT"), in a Form 8-K filed under the Exchange Act or in any other filing
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by the Company with the Securities and Exchange Commission (the
"COMMISSION"); or
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(3) there occurs any solicitation of proxies by or on behalf of
any Person other than the Company's Board of Directors and thereafter
individuals who were not directors of the Company prior to the commencement
of such solicitation are elected as directors pursuant to an arrangement or
understanding with, or upon the request of or nomination by, such Person
and constitute at least one-third (1/3) of the Company's Board of
Directors; or
(4) the Company executes an agreement of acquisition, merger or
consolidation which contemplates that (i) after the effective date provided
for in the agreement, all or substantially all of the business and/or
assets of the Company shall be owned, leased or otherwise controlled by
another corporation or other entity and (ii) individuals who are directors
of the Company when such agreement is executed shall not constitute a
majority of the Board of Directors of the survivor or successor company
immediately after the effective date provided for in such agreement;
provided, however, for purposes of this paragraph (4) that if such
agreement requires as a condition precedent approval by the Company's
stockholders of the agreement or transaction, a change of control shall not
be deemed to have
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taken place unless and until such approval is secured.
(b) "COMMON STOCK" shall mean the then outstanding Common Stock of
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the Company assuming conversion of all outstanding securities convertible into
Common Stock plus, for purposes of determining the stock ownership of any
Person, the number of unissued shares of Common Stock which such Person has the
right to acquire (whether such right is exercisable immediately or only after
the passage of time) upon the exercise of conversion rights, exchange rights,
warrants or options or otherwise.
(c) "CORPORATE STATUS" describes the status of a person who is or
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was or has agreed to become a director of the Company, or is or was or has
agreed to become an officer or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise for which such person is or was serving or has agreed to serve at the
request of the Company.
(d) "DISINTERESTED DIRECTOR" means a director of the Company who is
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not and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(e) "EXPENSES" shall include all reasonable attorney's fees,
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retainers, court costs, transcript costs, fees of experts, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend or investigating a Proceeding, but shall not include the
amount of judgments, fines or penalties against Indemnitee or amounts paid in
settlement of a Proceeding in respect of which indemnification is sought by
Indemnitee.
(f) "INDEPENDENT COUNSEL" means a law firm of one hundred (100) or
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more lawyers that is experienced in matters of Delaware corporation law and
neither presently is, nor in the past five (5) years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to either such
party, or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person, who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
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representing either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement.
(g) "PERSON" shall have the meaning used in Section 13(d) of the
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Exchange Act.
(h) "PROCEEDING" includes any threatened, pending or completed
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action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing, appeal, or any other proceeding, whether
civil, criminal, administrative or investigative, arising on or after the date
of this Agreement (and regardless of when the Indemnitee's act or failure to act
occurred), except one initiated by an Indemnitee pursuant to Section 10 of this
Agreement to enforce his rights under this Agreement.
2. SERVICES BY INDEMNITEE. Indemnitee agrees to serve or continue to
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serve as a director and/or officer of the Company. This Agreement shall not
impose any obligation on Indemnitee or the Company to continue Indemnitee's
position with the Company beyond any period otherwise applicable.
3. GENERAL. The parties agree and acknowledge that it is their intent
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that the Company shall indemnify Indemnitee to the fullest extent permitted by
law and, therefore, that this Agreement shall be construed and enforced to
effectuate such intent. To the extent that a change in Delaware law (whether by
statute or judicial decision) permits greater indemnification by agreement than
would be afforded currently under the Bylaws of the Company and this Agreement,
it is the further intent of parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. Consequently, to the
extent Delaware law shall permit broader contractual indemnification, this
Agreement shall be deemed amended to incorporate such broader indemnification.
The rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Bylaws of the Company, Delaware law or otherwise.
4. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
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Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his or her Corporate Status, he or she was, is, or is
threatened to be made, a party to any Proceeding other than a Proceeding by or
in the right of the Company. Pursuant to this Section 4,
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Indemnitee shall be indemnified against Expenses, judgments, penalties and fines
(including excise taxes assessed to Indemnitee with respect to an employee
benefit plan) and amounts paid in settlement actually and reasonably incurred by
him or her or on his or her behalf in connection with such Proceeding or any
claim, issue or matter therein if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful.
5. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee shall be
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entitled to the rights of indemnification provided in this Section 5 if, by
reason of his Corporate Status, he or she was, is, or is threatened to be made,
a party to any Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 5, Indemnitee shall be
indemnified against Expenses and, to the extent permitted by applicable law,
amounts paid in settlement actually and reasonably incurred by him or her or on
his or her behalf in connection with such Proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter as to which Indemnitee shall have been adjudged to be liable to
the Company; provided however, that indemnification against Expenses shall
nevertheless be made by the Company in such event to the extent that the Court
of Chancery of the State of Delaware, or the court in which such Proceeding
shall have been brought or is pending, shall determine.
6. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTIALLY
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SUCCESSFUL. Notwithstanding any other provision of this Agreement, to the extent
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that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he or she shall be
indemnified against all Expenses actually and reasonably incurred by him or her
or on his or her behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such Proceeding,
the Company shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in connection with
each successfully resolved claim, issue or
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matter. For purposes of this Section and without limitation, the termination of
any Proceeding or any claim, issue or matter in any Proceeding by dismissal or
withdrawal, with or without prejudice, shall be deemed to be a successful result
as to such claim, issue or matter.
7. ADVANCE OF EXPENSES. The Company shall advance all reasonable Expenses
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incurred by or on behalf of Indemnitee in connection with any Proceeding within
twenty (20) days after the receipt by the Company of a statement or statements
from Indemnitee requesting such advance or advances from time to time, whether
prior to or after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred or to be incurred by
Indemnitee and shall include or be preceded or accompanied by an undertaking by
or on behalf of Indemnitee to repay any Expenses advanced to the extent it shall
ultimately be determined that Indemnitee is not entitled to be indemnified
against any such Expenses.
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
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(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company 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.
(b) Upon written request by Indemnitee for indemnification pursuant
to Section 8(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto under Delaware law shall be made in
the specific case: (i) if a Change of Control shall have occurred, by
Independent Counsel (unless Indemnitee shall request that such determination be
made by the Board of Directors or the stockholders, in which case the
determination shall be made in the manner provided below in clauses (ii) or
(iii)) in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee; (ii) if a Change of Control shall not have occurred,
(A) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors, or (B) if a quorum of the Board of Directors consisting
of Disinterested Directors is not obtainable or, even if obtainable, such quorum
of Disinterested Directors so directs, by Independent Counsel in
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a written opinion to the Board of Directors, a copy of which shall be delivered
to Indemnitee or (C) by the stockholders of the Company; or (iii) as provided in
Section 9(b) of this Agreement; and, if it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten (10)
days after such determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or information which is
not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys fees and disbursements) incurred by
Indemnitee in so cooperating shall be borne by the Company (irrespective of the
determination as to Indemnitee's entitlement to indemnification) and the Company
hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement,
the Independent Counsel shall be selected as provided in this Section 8(c). If a
Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board of Directors, and the Company shall give written notice to
Indemnitee advising him or her of the identity of the Independent Counsel so
selected. If a Change of Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within seven (7) days
after such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 1 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. If such written
objection is made, the Independent Counsel so selected may not serve as
Independent Counsel unless and until a court, pursuant to the provisions of the
following sentence, has determined that such objection is without merit. If,
within
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twenty (20) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall
have been selected or if selected, shall have been objected to, in accordance
with this Section 8(c), either the Company or Indemnitee may petition the Court
of Chancery of the State of Delaware or other court of competent jurisdiction
for resolution of any objection which shall have been made by the Company or
Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the Court or by such
other person as the Court shall designate, and the person with respect to whom
an objection is favorably resolved or the person so appointed shall act as
Independent Counsel under Section 8(b) hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 8(b) hereof, and the
Company shall pay all reasonable fees and expenses incident to the procedures of
this Section 8(c), regardless of the manner in which such Independent Counsel
was selected or appointed.
9. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
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(a) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 8(a) of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the making by
any person, persons or entity of any determination contrary to that presumption.
(b) If the person, persons or entity empowered or selected under
Section 8 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made such determination within sixty (60) days
after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such sixty (60)-
day period may be extended for a reasonable time,
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not to exceed an additional thirty (30) days, if the person or entity making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluation of documentation
and/or information relating thereto; and provided, further, that the foregoing
provisions of this Section 9(b) shall not apply if the determination of
entitlement to indemnification is to be made by the stockholders pursuant to
Section 8(b) of this Agreement and if (A) within fifteen (15) days after receipt
by the Company of the request for such determination the Board of Directors has
resolved to submit such determination to the stockholders for their
consideration at a meeting thereof to be held within seventy-five (75) days
after such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within fifteen (15) days after such receipt
for the purpose of making such determination, such meeting is held for such
purpose within sixty (60) days after having been so called and such
determination is made thereat.
(c) The termination of any Proceeding or of any claim, issue or
matter therein by judgment, order, settlement (whether with or without
court approval), conviction, or upon a plea of nolo contendere or its
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equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of Indemnitee to indemnification or create
a presumption that Indemnitee did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful or that a court has
determined that indemnification is not permitted by applicable law.
10. REMEDIES OF INDEMNITEE.
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(a) In the event that (i) a determination is made pursuant to Section
8 of this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 7 of this Agreement, (iii) payment of indemnification is not made
pursuant to Section 6 of this Agreement within ten (10) days after receipt by
the Company of a written request therefor, or (iv) payment of indemnification is
not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination is deemed to
have been
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made pursuant to Section 9(b) of this Agreement, Indemnitee shall be entitled to
an adjudication in an appropriate court of the State of Delaware, or in any
other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. The Company shall
not oppose Indemnitee's right to seek any such adjudication or award in
arbitration.
(b) In the event that a determination shall have been made pursuant
to Section 8 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial Proceeding or arbitration commenced pursuant to
this Section 10 shall be conducted in all respects as a de novo trial, or
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arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any judicial Proceeding or arbitration commenced
pursuant to this Section 10, the Company shall have the burden of proving that
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be.
(c) If a determination shall have been made or deemed to have been
made pursuant to Section 8 or 9 of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 10, absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial
Proceeding or arbitration commenced pursuant to this Section 10 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement.
11. LIABILITY INSURANCE. To the extent the Company maintains an insurance
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policy or policies providing directors and officers liability insurance,
Indemnitee shall be covered by such policy or policies, in accordance with its
or their terms, to the
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maximum extent of the coverage available for any director or officer of the
Company.
12. NON-EXCLUSIVITY; DURATION OF AGREEMENT; SUBROGATION.
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(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Company's Certificate of Incorporation or Bylaws, any other agreement,
a vote of stockholders or a resolution of directors, or otherwise. This
Agreement shall continue as to Indemnitee even though he or she may have ceased
to have his Corporate Status and shall inure to the benefit of Indemnitee and
his heirs, personal representatives, executors and administrators. This
Agreement shall be binding upon the Company and its successors (including any
direct or indirect successor by merger or consolidation or the acquisition,
however effected, of all or a substantial portion of the business and/or assets
of the Company) and assigns. The Company shall require and cause any such
successor or assign, by written agreement in form and substance satisfactory to
Indemnitee, to expressly 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 or assignment had occurred.
(b) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
13. SECURITY. To the extent requested by Indemnitee and approved by the
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Board, the Company may at any time and from time to time provide security to
Indemnitee for the Company's obligations hereunder through an irrevocable bank
line of credit, funded trust or other collateral. Any such security, once
provided to Indemnitee, may not be revoked or released without
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the prior written consent of Indemnitee. Nothing in this Section 13 shall
relieve the Company of any of its obligations under this Agreement.
14. FEES AND EXPENSES OF ENFORCEMENT. In the event that the Company fails
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to comply with any of its obligations under this Agreement or in the event that
the Company or any other person takes any action to declare this Agreement void
or unenforceable, or institutes any action, suit or Proceeding to deny or to
recover from Indemnitee the benefits intended to be provided to Indemnitee
hereunder, and Indemnitee prevails in any Proceeding to enforce Indemnitee's
rights hereunder, the Company shall pay and be solely responsible for any and
all costs, charges, and expenses, including, without limitation, fees and
expenses of attorneys and others, reasonably incurred by Indemnitee in
connection therewith.
15. SEVERABILITY. If any provision or provisions of this Agreement shall
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be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision which will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provision.
Without limiting the generality of the foregoing, the provisions of this Section
15 shall apply in the event a court shall find that Section 2115 of the
California Corporations Code applies to this Agreement, and in such event, this
Agreement shall be interpreted to provide the maximum indemnification possible
to Indemnitee consistent with this Agreement as it shall be required to be
modified to comport with such Section 2115.
16. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF
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EXPENSES. Notwithstanding any other provision of this Agreement, prior to a
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Change of Control, Indemnitee shall not be entitled to indemnification or
advancement of Expenses under this Agreement with respect to any Proceeding, or
any claim therein, brought or made by him or her against the Company or any
director or officer of the Company unless the Company has joined in or consented
to the initiation thereof.
17. HEADINGS. The headings of the paragraphs of this Agreement are
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inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
18. MODIFICATION AND WAIVER. This Agreement shall be amended to reflect
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any changes in Delaware law (whether statutory or judicial) which broaden the
right of Indemnitee to receive indemnification from the Company and may be
amended from time to time for other reasons. 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 provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
19. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the
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Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder; provided, however, that the failure to give any such notice
shall not disqualify Indemnitee from indemnification hereunder.
20. SPECIFIC PERFORMANCE. The parties recognize that if any provision of
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this Agreement is violated by the Company, Indemnitee may be without an adequate
remedy at law. Accordingly, in the event of any such violation, Indemnitee
shall be entitled, if Indemnitee so elects, to institute proceedings, either in
law or at equity, to obtain damages, to enforce specific performance, to enjoin
such violation, or to obtain any relief or any combination of the foregoing as
Indemnitee may elect to pursue.
21. NOTICES. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed
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to have been duly given if (i) delivered by hand and receipted for by the party
to whom said notice or other communication shall have been directed, or (ii)
mailed by certified or registered mail with postage prepaid, on the third (3rd)
business day after the date on which it is so mailed:
If to Indemnitee, to: Address set forth on the signature page
hereto.
If to the Company to: Digital Certificate International, Inc.
c/o RSA Data Security, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
_________________________
Attn: Secretary
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
22. GOVERNING LAW. The parties agree that this Agreement shall be
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governed by, and construed and enforced in accordance with, the laws of the
State of Delaware applicable to contracts made and to be performed entirely in
such state without giving effect to the provisions thereof relating to conflicts
of law.
23. AGREEMENT GOVERNS. In the event of any conflict between any provision
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of this Agreement and any provision of the Company's Bylaws, this Agreement
shall govern to the extent that the provision of this Agreement is legally
enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
DIGITAL CERTIFICATES INTERNATIONAL,
INC., a Delaware corporation
By:________________________________
Title:_____________________________
INDEMNITEE:
___________________________________
Digital Certificates International, Inc.
Indemnification Agreement
Page 15
INDEMNITEE'S ADDRESS:
