EYETEL IMAGING, INC. INDEMNIFICATION AGREEMENT
EYETEL
IMAGING, INC.
This
Agreement is made as of _________, 2007, by and among EyeTel Imaging, Inc.,
a
Delaware corporation (the “Corporation”)
and
____________, an [executive officer] [director] of the Corporation (the
“Indemnitee”).
WHEREAS,
the
Indemnitee is [an executive officer] [a member of the Board of Directors] of
the
Corporation and in that capacity is performing a valuable service for the
Corporation; and
WHEREAS,
the
Corporation and the Indemnitee are aware of the increased exposure of corporate
[officers] [directors] to litigation in the course of exercising their duties;
and
WHEREAS,
the
Corporation desires to continue to benefit from the services of highly qualified
and experienced persons such as the Indemnitee; and
WHEREAS,
the
Indemnitee is willing to serve the Corporation as [an officer] [a director]
only
if the Corporation is able to provide on an acceptable basis adequate and
reliable indemnification against certain liabilities and expenses that may
be
incurred by the Indemnitee in connection with such service; and
WHEREAS,
the
Second Amended and Restated Bylaws (the “Bylaws”)
of the
Corporation provide for certain indemnification of the [officers] [directors]
of
the Corporation; and
WHEREAS,
the
Corporation and the Indemnitee recognize the potential inadequacy of the
protection available to [officers] [directors] under the Delaware General
Corporation Law (the “DGCL”)
and
the Corporation’s Third Amended and Restated Certificate of Incorporation and
the Bylaws; and
WHEREAS,
the
DGCL specifically provides that it is not exclusive and contemplates that
contracts may be entered into between the Corporation and [its officers]
[members of its Board of Directors] with respect to indemnification of the
[officers] [directors];
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein, the
parties hereby agree as follows:
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1.
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Service
by the Indemnitee.
This Agreement shall not give the Indemnitee the right to be nominated
or
elected as [an officer] [a director] of the Corporation, affect the
right
of the Indemnitee to resign or decline to stand for election as [an
officer] [a director] of the Corporation or affect the right of the
[Board
of Directors] [stockholders] to remove the Indemnitee, or affect
the right
of the Corporation [to terminate the Indemnitee’s employment (except as
provided in any employment agreement with the Corporation)] [or
stockholders to seek judicial removal of the
Indemnitee].
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2.
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Indemnity
of the Indemnitee.
The Corporation agrees to hold harmless and indemnify the Indemnitee,
his
or her heirs, successors, and estate to the fullest extent authorized
or
permitted by the provisions of the DGCL, or by any amendment of it
or
other statutory provisions authorizing or permitting such indemnification
that is adopted on or after the date of this Agreement, against any
pending, threatened, future, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (including
an
action by or in the right of the Corporation) by reason of the fact
that
he or she is or was [an officer] [a director] of the Corporation
or is or
was serving as a director, officer, employee, or agent of another
corporation, partnership, joint venture, limited liability company,
trust,
or other enterprise at the request of or by designation of the
Corporation.
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3.
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Additional
Indemnity.
Without limiting the generality of Section 2
hereof, and subject only to the exclusions set forth in Section
4
hereof, the Corporation further agrees to hold harmless and indemnify
the
Indemnitee, his or her heirs, successors and
estate:
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(a)
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Against
any and all expenses (including attorneys’ fees), judgments, fines,
penalties, and amounts paid in settlement, actually and reasonably
incurred by the Indemnitee, his or her heirs, successors, and estate
in
connection with any threatened, pending, future, or completed action,
suit
or proceeding, whether civil, criminal, administrative, or investigative
(including an action by or in the right of the Corporation) to which
the
Indemnitee is, was, or at any time becomes, or his or her heirs,
successors, and estate are, were, or at any time become, a party,
or is
threatened to be made a party, by reason of the fact that the Indemnitee
is, was, or at any time becomes a director, officer, employee, or
agent of
the Corporation, or is or was serving or at any time serves as a
director,
officer, employee, or agent of another corporation, partnership,
joint
venture, limited liability company, trust, or other enterprise at
the
request of or by designation of the Corporation 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 Corporation and, with respect
to any
criminal action or proceeding, had no reasonable cause to believe
his or
her conduct was unlawful; and
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(b)
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Otherwise
to the fullest extent as may be provided to the Indemnitee by the
Corporation under the non-exclusivity provisions of the
DGCL.
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In
the
event the Indemnitee incurs and pays such expenses (including attorneys’ fees),
judgments, fines, penalties, and amounts paid in settlement, the Corporation
shall promptly reimburse such amounts within a reasonable period of time not
to
exceed sixty (60) days, subject to the exclusions set forth in Section
4.
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4.
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Limitations
on Indemnity.
No
indemnity pursuant to Section 2
hereof shall be paid by the
Corporation:
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(a)
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On
account of any suit in which judgment is rendered against the Indemnitee
for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Corporation pursuant to the provisions
of
Section 16(b) of the Securities Exchange Act of 1934 and its amendments
or
similar provisions of any federal, state, or local statutory law
to the
extent, and only to the extent, the suit relates to such
judgment;
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(b)
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For
any breach of the Indemnitee’s duty of loyalty to the Corporation or its
stockholders determined finally by a court of competent jurisdiction
and
not subject to further appeal;
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(c)
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For
acts or omissions of the Indemnitee not in good faith or that involve
intentional misconduct or a knowing violation of law determined finally
by
a court of competent jurisdiction and not subject to further appeal;
or
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(d)
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If
a final decision not subject to further appeal by a court having
jurisdiction in the matter shall determine that such indemnification
is
not lawful.
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5.
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Continuation
of Indemnity.
All agreements and obligations of the Corporation contained herein
shall
continue during the period the Indemnitee is a director, officer,
employee, or agent of the Corporation (or is or was serving as a
director,
officer, employee, or agent of another corporation, partnership,
joint
venture, limited liability company, trust or other enterprise at
the
request of or by designation by the Corporation) and shall continue
thereafter so long as the Indemnitee shall be subject to any possible
claim or threatened, pending or completed action, suit or proceeding,
whether, civil, criminal or investigative, by reason of the fact
that the
Indemnitee was [an officer] [a director] of the Corporation or serving
in
any other capacity referred to
herein.
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6.
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Notification
and Defense of Claim.
As
a condition precedent to the Indemnitee’s right to be indemnified
hereunder, promptly after receipt by the Indemnitee of notice of
any
claim, or of the commencement of any action, suit, or proceeding,
the
Indemnitee must, if a claim in respect thereof is to be made against
the
Corporation under this Agreement, notify the Corporation of such
commencement; but the omission so to notify the Corporation will
not
relieve the Corporation from any liability which it may have to the
Indemnitee. With respect to any such action, suit, or proceeding
(a
“Case”):
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(a)
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The
Corporation will be entitled to participate in the Case at its own
expense;
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(b)
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Except
as otherwise provided below, to the extent that it may wish, the
Corporation jointly with any other indemnifying party will be entitled
to
assume the defense of the Case, with counsel satisfactory to the
Indemnitee. After notice from the Corporation to the Indemnitee of
the
election so to assume the defense of the Case, the Corporation will
not be
liable to the Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by the Indemnitee in connection with
the
defense thereof other than reasonable costs of investigation or as
otherwise provided below. The Indemnitee shall have the right to
employ
its own counsel in such Case, but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of the Indemnitee unless
(i) the employment of counsel by the Indemnitee has been authorized
by the Corporation, (ii) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Corporation
and the
Indemnitee in the conduct of the defense of such action, or (iii)
the
Corporation 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
for the Indemnitee shall be at the expense of the Corporation. The
Corporation shall not be entitled to assume the defense of any action,
suit, or proceeding brought by or on behalf of the Corporation or
as to
which the Indemnitee shall have made the conclusion provided for
in
Section 6(b)(ii);
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(c)
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The
Corporation shall not be liable to indemnify the Indemnitee under
this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Corporation shall not settle
any
action or claim in any manner that would impose any penalty or limitation
on the Indemnitee without the Indemnitee’s written consent. Neither the
Corporation nor the Indemnitee will unreasonably withhold their consent
to
any proposed settlement.
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7.
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Repayment
of Expenses.
The Indemnitee agrees that the Indemnitee will reimburse the Corporation
for all amounts advanced paid by the Corporation to the Indemnitee
pursuant to the last sentence of Section 3 in the event and only
to the
extent that it shall be ultimately determined by final judicial decision
from which there is no further right of appeal that the Indemnitee
is not
entitled to be indemnified by the Corporation for such expenses under
the
provisions of the DGCL, the Bylaws, this Agreement, or
otherwise.
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8.
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Enforcement.
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(a)
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The
Corporation expressly confirms and agrees that it has entered into
this
Agreement and assumed the obligations imposed on it hereby in order
to
induce the Indemnitee to continue as [an officer] [a director] of
the
Corporation and acknowledges that the Indemnitee is relying on this
Agreement in continuing in such
capacity.
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(b)
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In
the event the Indemnitee is required to bring any action to enforce
rights
or to collect moneys due under this Agreement and is successful in
such
action, the Corporation shall reimburse the Indemnitee for all of
the
Indemnitee’s reasonable fees and expenses in bringing and pursuing such
action.
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9.
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Severability.
Each of the provisions of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision
shall be
held to be invalid or unenforceable for any reason, such invalidity
or
unenforceability shall not affect the validity or enforceability
of the
other provisions.
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10.
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Governing
Law; Binding Effect; Amendment and Termination.
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(a)
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This
Agreement shall be interpreted and enforced in accordance with the
laws of
the State of Delaware.
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(b)
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This
Agreement shall be binding on the Indemnitee and shall inure to the
benefit of the Indemnitee, his or her heirs, personal representatives,
and
assigns. This Agreement shall also be binding on the Corporation
and shall
inure to the benefit of the Corporation together with its successors
and
assigns.
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(c)
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No
amendment, modification, termination, or cancellation of this Agreement
shall be effective unless in writing signed by both parties
hereto.
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11.
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Rights
Not Exclusive. The
indemnification provided by this Agreement shall not be deemed exclusive
of any other rights to which the Indemnitee may be entitled under
the
Corporation’s certificate of incorporation, by-laws, any other agreement,
any vote of stockholders or directors, the DGCL, any other common
or
statutory law or otherwise.
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[Signature
Page to Follow]
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IN
WITNESS WHEREOF, the parties have executed this Agreement on and as of the
date
first above written.
EYETEL
IMAGING, INC.
By:
____________________________
Name:
__________________________
Title:
___________________________
____________________________
[Name
of
Indemnitee]
SIGNATURE
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