EXHIBIT 10.4
BEATNIK, INC.
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INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT (the "Agreement"), effective as of _____, by
and between, BEATNIK, INC., a Delaware corporation (the "Company"), and
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_____________________ (the "Indemnitee").
1. Indemnification. The Company shall indemnify Indemnitee to the fullest
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extent permitted by section 145 of the Delaware General Corporation Law, as
amended (the "Delaware Law"), the Certificate of Incorporation (the
"Certificate") and the Bylaws of the Company (the "Bylaws") in effect on the
date hereof or as such Law, Certificate, and Bylaws may from time to time be
amended (but, in the case of any such amendment, only to the extent such
amendment permits the Company to provide broader indemnification rights than the
Law, Certificate or Bylaws permitted the Company to provide before such
amendment), if and whenever he is or was a party or is threatened to be made a
party to any Proceeding, against Expenses and Liabilities actually and
reasonably incurred by Indemnitee or on his behalf in connection with the
investigation, defense, settlement or appeal of such Proceeding. The right to
indemnification conferred herein shall be presumed to have been relied upon by
Indemnitee in serving or continuing to serve the Company as an officer or
director and shall be enforceable as a contract right. Without in any way
diminishing the scope of the indemnification provided by this Section 1, the
Company will indemnify Indemnitee if Indemnitee:
(a) was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company to procure a
judgment in its favor) by reason of the fact Indemnitee is or was an Agent,
against Expenses and Liabilities actually and reasonably incurred in connection
with such Proceeding if Indemnitee acted in good faith and in a manner
reasonably believed to be in the best interests of the Company and, in the case
of a criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any 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 the best interests of the
Company or that Indemnitee had reasonable cause to believe that Indemnitee's
conduct was unlawful, or
(b) was or is a party or is threatened to be made a party to any
threatened, pending or completed action by or in the right of the Company to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
an agent of the Company, against Expenses and Liabilities actually and
reasonably incurred by Indemnitee in connection with the defense or settlement
of such action if Indemnitee acted in good faith, in a manner Indemnitee
believed to be in the best interests of the Company and its shareholders.
(c) To the extent that Indemnitee has been successful on the merits in
defense of any Proceeding referred to in clause (a) or (b) above or in defense
of any action, claim, issue or matter therein, Indemnitee shall be indemnified
against Expenses actually and reasonably incurred by Indemnitee in connection
therewith.
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In addition to, and not as a limitation of, the foregoing, the rights of
indemnification of Indemnitee provided under this Agreement shall include those
rights set forth below.
2. Advancement of Expenses and Costs. All reasonable Expenses incurred by
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or on behalf of Indemnitee shall be advanced by the Company to Indemnitee within
thirty (30) calendar days after the receipt by the Company of a statement or
statements from Indemnitee requiring an advance or advances of Expenses from
time to time, whether prior to or after final disposition of such Proceeding.
The statement or statements shall reasonably evidence the Expenses incurred or
to be incurred by him in connection therewith. If required by law at the time of
such advance, Indemnitee hereby undertakes to repay the amounts advanced if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
pursuant to the terms of this Agreement.
3. Other Rights to Indemnification. Indemnitee's rights of indemnification
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and advancement of expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may now or in the future be
entitled under applicable law, the Certificate, Bylaws, agreement, vote of
stockholders, resolution of directors, or otherwise.
4. Limitations on Indemnity. Any provision herein to the contrary
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notwithstanding, the Company shall not be obligated pursuant to this Agreement:
(a) Insured Claims. To make any payment to Indemnitee to the extent that
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Indemnitee is indemnified other than pursuant to this Agreement or to the extent
that Indemnitee is reimbursed pursuant to any D&O or other insurance the Company
may maintain for Indemnitee's benefit; provided, however, that notwithstanding
the availability of such insurance, Indemnitee may claim indemnification
pursuant to this Agreement by assigning to the Company, at its request, any
claims under such insurance to the extent Indemnitee is paid by the Company.
(b) Claims Initiated by Indemnitee. To indemnify or advance expenses to
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Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Delaware Law, but such indemnification or advancement of Expenses may be
provided by the Company in specific cases if the Board of Directors has approved
the initiation or bringing of such suit.
(c) Claims Under Section 16(b). To indemnify Indemnitee for Expenses and
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the payment of profits arising from the purchase and 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.
5. Duration of Agreement. This Agreement shall continue so long as
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Indemnitee shall be subject to any possible Proceeding by reason of the fact
that he is or was an Agent. This Agreement shall be binding upon the Company and
its successors and assigns and shall inure to the benefit of Indemnitee and his
spouse, assigns, heirs, devisees, executors, administrators or other legal
representatives.
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6. Miscellaneous.
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(a) Procedure. Any indemnification and advances provided for in Sections 1
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and 2 shall be made no later than thirty (30) calendar days, respectively, after
receipt of a written request therefor of Indemnitee. If a claim under this
Agreement, under any statute, or under any provision of the Company's
Certificate or Bylaws providing for indemnification, is not paid in full by the
Company within such period, Indemnitee may, but need not, at any time thereafter
bring an action against the Company to recover the unpaid amount of the claim
and, subject to Section 6(l) of this Agreement, Indemnitee shall also be
entitled to be paid for the Expenses (including attorney's fees) of bringing
such action. It shall be a defense to any such action (other than an action
brought to enforce a claim for Expenses incurred in connection with any action
or proceeding in advance of its final disposition) that Indemnitee has not met
the standards of conduct which make it permissible under applicable law for the
Company to indemnify Indemnitee for the amount claimed, and Indemnitee shall be
entitled to receive interim payments of expenses pursuant to Section 2 unless
and until such defense is finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the parties' intention that if
the Company contests Indemnitee's right to indemnification, the Company shall be
entitled to select the forum in which Indemnitee's entitlement to
indemnification will be heard. The Company shall notify the Indemnitee in
writing as to the forum selected, which selection shall be from among the
following:
(i) The stockholders of the Company;
(ii) A quorum of the Board consisting of Disinterested Directors;
(iii) Independent Counsel selected by Indemnitee, and reasonably
approved by the Board, which counsel shall make the determination in a
written opinion; or
(iv) A panel of three arbitrators, one of whom is selected by the
Company, another of whom is selected by Indemnitee and the last of whom is
selected by the first two arbitrators so selected; or if for any reason
three arbitrators are not selected within 30 days after the appointment of
the first arbitrator, then selection of additional arbitrators to complete
the three person panel shall be made by the American Arbitration
Association under its commercial arbitration rules now in effect.
Neither the failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel, or
its shareholder) to have made a determination that indemnification of Indemnitee
is proper in the circumstances because Indemnitee has met the applicable
standard of conduct required by applicable law, nor an actual determination by
the Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its shareholders) that
Indemnitee has not met such applicable standard of conduct, shall create a
presumption that Indemnitee has or has not met the applicable standard of
conduct.
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(b) Mutual Acknowledgment. Both the Company and Indemnitee acknowledge
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that in certain instances, federal or state law or applicable public policy may
prohibit the Company from indemnifying its directors and officers under this
Agreement or otherwise. Indemnitee 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 Indemnitee.
(c) 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: (i)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, all portions of any paragraphs of this
Agreement containing any provision held to be invalid, illegal or unenforceable,
that are not themselves invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (ii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any
paragraph of this Agreement containing any provision held to be invalid, illegal
or unenforceable, that are not themselves invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
(d) Identical Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
(e) Interpretation of Agreement. It is understood that the parties hereto
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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.
(f) 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.
(g) Definitions. For purposes of this Agreement:
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(i) "Agent" shall mean any person who is or was a director, officer,
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employee, agent, fiduciary or other official of the Company or a subsidiary of
the Company; or is or was serving at the request of, for the convenience of, or
to represent the interests of the Company or a subsidiary of the Company as a
director, officer, foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise; or was a director, officer,
employee, agent, fiduciary or other official of a foreign or domestic
corporation which was a predecessor corporation of the Company or a subsidiary
of the Company, or was a director, officer, employee, agent, fiduciary or other
official of another enterprise at the request of, for the convenience of, or to
represent the interests of such predecessor corporation.
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(ii) "Expenses" shall include all direct and indirect costs
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(including, without limitation, attorneys' fees, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery
service fees, all other disbursements or out-of-pocket expenses and
reasonable compensation for time spent by Indemnitee for which he is
otherwise not compensated by the Company or any third party) actually and
reasonably incurred in connection with either the investigation, defense,
settlement or appeal of a Proceeding or establishing or enforcing a right
to indemnification under this Agreement, applicable law or otherwise;
provided,however, that expenses shall not include any judgments, fines,
ERISA excise taxes or penalties or amounts paid in settlement of a
Proceeding.
(iii) "Liabilities" shall mean liabilities of any type whatsoever,
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including, but not limited to, judgments, fines, ERISA excise taxes and
penalties and amounts paid in settlement of a Proceeding.
(iv) "Proceeding" shall mean any action, suit arbitration, alternate
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dispute resolution mechanism, investigation, administrative hearing or any
other proceeding whether civil, criminal, administrative or investigative
to which Indemnitee is or was a party or is threatened to be a party by
reason of the fact that he is or was an Agent or by reason of anything done
or not done by Indemnitee in such capacity.
(v) "Delaware Law" shall mean Title 8 of the Delaware Code as
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amended and in effect from time to time or any successor or other statutes
of Delaware having similar import and effect.
(h) Pronouns. Use of the masculine pronoun shall be deemed to include
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usage of the feminine pronoun where appropriate.
(i) Modification and Waiver. No supplement, modification or amendment of
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this Agreement shall be binding unless executed in writing by both of the
parties to this Agreement. 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.
(j) Notice by Indemnitee and Defense of Claims. Indemnitee agrees promptly
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to notify the Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
matter which may be subject to indemnification covered hereunder, either civil,
criminal or investigative; but the omission so to notify the Company will not
relieve it from any liability which it may have to Indemnitee if such omission
does not prejudice the Company's rights and if such omission does prejudice the
Company's rights, it will relieve the Company from liability only to the extent
of such prejudice; nor will such omission, in any event, relieve the Company
from any liability which it may have to Indemnitee otherwise than under this
Agreement. With respect to any Proceeding as to which Indemnitee notifies the
Company of the commencement thereof:
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(i) The Company will be entitled to participate therein at its own
expense; and
(ii) Except as otherwise provided below, to the extent that it may
wish, the Company jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election so to assume the defense thereof, the Company
will not be liable to Indemnitee under this Agreement for any legal or
other expenses subsequently incurred by Indemnitee in connection with the
defense thereof except as otherwise provided below. Indemnitee shall have
the right to employ his counsel in such action, suit or proceeding but the
fees and expenses of such counsel incurred after notice from the Company of
its assumption of the defense thereof shall be at the expense of Indemnitee
unless (A) the employment of counsel by Indemnitee has been authorized by
the Company, or (B) the Company shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and
expenses of counsel shall be at the expense of the Company, or (C)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such
defense.
(iii) The Company shall not be liable to indemnify Indemnitee under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any
action or claim in any manner which would impose any penalty or limitation
on Indemnitee without Indemnitee's written consent. Neither the Company nor
Indemnitee will unreasonably withhold their consent to any proposed
settlement.
(k) Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed 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 business day after the date on which it
is so mailed:
If to Indemnitee: _____________________
_____________________
_____________________
If to Company: BEATNIK, INC.
0000 Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: President
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.
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(l) Attorneys' Fees. In the event that any action is instituted by
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Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement or to enforce
or interpret any of the terms of this Agreement, Indemnitee shall be entitled to
be paid all court costs and expenses, including attorneys' fees, incurred by
Indemnitee in defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
(m) Consent to Jurisdiction. The Company and Indemnitee each hereby
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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 brought only in the state courts of the State of Delaware.
(n) Partial Indemnification. If Indemnitee is entitled under any provision
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of this Agreement to indemnification by the Company for some or a portion of the
expenses, judgments, fines or penalties actually or reasonably incurred by him
in the investigation, defense, appeal or settlement of any Proceeding, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such expenses, judgments, fines or penalties to
which Indemnitee is entitled.
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(o) Governing Law; Binding Effect. The parties agree that this Agreement
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shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware. This Agreement shall
be binding upon Indemnitee and upon the Company, its successors and assigns, and
shall inure to the benefit of Indemnitee, his heirs, personal representatives
and assigns and to the benefit of the Company, its successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BEATNIK, INC., a Delaware corporation
By____________________________________
Its___________________________________
______________________________________
Indemnitee
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