Indemnification Agreement - Odimo Inc.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("AGREEMENT") is made as of
_______________________ , 2005 by and between Odimo Incorporated, a Delaware
corporation (the "COMPANY"), and ____________________________________________
("INDEMNITEE").
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve
corporations as directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the corporation;
WHEREAS, the Board of Directors of the Company (the "BOARD") has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given current market
conditions and trends, such insurance may be available to it in the future only
at higher premiums and with more exclusions. At the same time, directors,
officers and other persons in service to corporations or business enterprises
are being increasingly subjected to expensive and time-consuming litigation
relating to, among other things, matters that traditionally would have been
brought only against the Company or business enterprise itself. The certificate
of incorporation and bylaws of the Company require indemnification of the
officers and directors of the Company. Indemnitee may also be entitled to
indemnification pursuant to the General Corporation Law of the State of Delaware
("DGCL"). The certificate of incorporation, bylaws and the DGCL expressly
provide that the indemnification provisions set forth therein are not exclusive
and thereby contemplate that contracts may be entered into between the Company
and members of the Board, officers and other persons with respect to
indemnification;
WHEREAS, the uncertainties relating to such insurance and to
indemnification have increased the difficulty of attracting and retaining such
persons;
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining such persons is detrimental to the best interests of
the Company's stockholders and that the Company should act to assure such
persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance expenses on behalf
of, such persons to the fullest extent permitted by applicable law so that they
will serve or continue to serve the Company free from undue concern that they
will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the
certificate of incorporation and bylaws of the Company and any resolutions
adopted pursuant thereto and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee does not regard the protection available under the
Company's certificate of incorporation, bylaws and insurance as adequate in the
present circumstances and may not be willing to serve as an officer or director
without adequate protection, and the Company desires Indemnitee to serve in such
capacity. Indemnitee is willing to serve, to continue to serve and to take on
additional service for or on behalf of the Company on the condition that he or
she be so indemnified.
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NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. SERVICES TO THE COMPANY. Indemnitee will serve or continue to serve
as an officer, director or key employee of the Company for so long as Indemnitee
is duly elected or appointed or until Indemnitee tenders his or her resignation.
2. DEFINITIONS. As used in this Agreement:
(a) "BENEFICIAL OWNER" shall have the meaning given to such
term in Rule 13d-3 under the Exchange Act; PROVIDED, HOWEVER, that Beneficial
Owner shall exclude any Person otherwise becoming a Beneficial Owner by reason
of the stockholders of the Company approving a merger of the Company with
another entity.
(b) A "CHANGE IN CONTROL" shall be deemed to occur upon the
earliest to occur after the date of this Agreement of any of the following
events:
(i) ACQUISITION OF STOCK BY THIRD PARTY. Any Person
(as defined below) is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing twenty percent (20%) or more of the
combined voting power of the Company's then outstanding securities;
(ii) CHANGE IN BOARD OF DIRECTORS. During any period
of two (2) consecutive years (not including any period prior to the execution of
this Agreement), individuals, who at the beginning of such period constitute the
Board, and any new director (other than a director designated by a person who
has entered into an agreement with the Company to effect a transaction described
in Sections 2(b)(i), 2(b)(iii) or 2(b)(iv)) whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds 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 at least
a majority of the members of the Board;
(iii) CORPORATE TRANSACTIONS. The effective date of a
merger or consolidation of the Company with any other entity, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior to such merger or consolidation continuing
to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50.1% of the combined voting power
of the voting securities of the surviving entity outstanding immediately after
such merger or consolidation and with the power to elect at least a majority of
the board of directors or other governing body of such surviving entity;
(iv) LIQUIDATION. The approval by the stockholders of
the Company of a complete liquidation of the Company or an agreement or series
of agreements for the sale or disposition by the Company of all or substantially
all of the Company's assets; or
(v) OTHER EVENTS. There occurs any other event of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or a response to any similar item on any similar
schedule or form) promulgated under the Exchange Act (as defined below), whether
or not the Company is then subject to such reporting requirement.
(c) "CORPORATE STATUS" describes the status of a person who is
or was a director, officer, trustee, general partner, managing member,
fiduciary, employee or agent of the Company or of any other Enterprise (as
defined below) which such person is or was serving at the request of the
Company.
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(d) "DISINTERESTED DIRECTOR" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(e) "ENTERPRISE" shall mean the Company and any other
corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise of which Indemnitee is or was serving
at the request of the Company as a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent.
(f) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
(g) "EXPENSES" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or expenses of the
type customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, being or preparing to be a witness in, or
otherwise participating in, a Proceeding. Expenses also shall include expenses
incurred in connection with any appeal resulting from any Proceeding, including,
without limitation, the premium, security for and other costs relating to any
cost bond, supersedeas bond or other appeal bond or its equivalent. Expenses
shall not include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.
(h) "INDEPENDENT COUNSEL" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Company or Indemnitee in any matter material to either such party (other
than with respect to matters concerning Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements), 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 representing either the Company
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement. The Company agrees to pay the reasonable fees and expenses of the
Independent Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
(i) "PERSON" shall have the meaning set forth in Sections
13(d) and 14(d) of the Exchange Act; PROVIDED, HOWEVER, that Person shall
exclude (i) the Company, (ii) any trustee or other fiduciary holding securities
under an employee benefit plan of the Company and (iii) any corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(j) The term "PROCEEDING" shall include any threatened,
pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of the Company
or otherwise and whether of a civil, criminal, administrative or investigative
nature, in which Indemnitee was, is or will be involved as a party or otherwise
by reason of the fact that Indemnitee is or was a director or officer of the
Company, by reason of any action taken (or failure to act) by him or her or of
any action (or failure to act) on his or her part while acting as a director or
officer of the Company, or by reason of the fact that he or she is or was
serving at the request of the Company as a director, officer, trustee, general
partner, managing member, fiduciary, employee or agent of any other Enterprise,
in each case whether or not serving in such capacity at the time any liability
or expense is incurred for which indemnification, reimbursement or advancement
of expenses can be provided under this Agreement.
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(k) References to "OTHER ENTERPRISE" shall include employee
benefit plans; references to "FINES" shall include any excise tax assessed with
respect to any employee benefit plan; references to "SERVING AT THE REQUEST OF
THE COMPANY" shall include any service as a director, officer, employee or agent
of the Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "NOT OPPOSED TO THE BEST INTERESTS OF THE COMPANY" as
referred to in this Agreement.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is,
or is threatened to be made, a party to or a participant (as a witness or
otherwise) in any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3,
Indemnitee shall be indemnified against all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties and amounts paid in settlement) actually
and reasonably incurred by Indemnitee or on his or her behalf in connection with
such Proceeding or any claim, issue or matter therein, if Indemnitee 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, in the case of a criminal proceeding,
he or she had no reasonable cause to believe that his or her conduct was
unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is, or is threatened to be made, a party to or a
participant (as a witness or otherwise) in any Proceeding by or in the right of
the Company to procure a judgment in its favor. Pursuant to this Section 4,
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by Indemnitee or on his or her behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee 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. No indemnification for Expenses shall be made
under this Section 4 in respect of any claim, issue or matter as to which
Indemnitee shall have been finally adjudged by a court to be liable to the
Company, unless and only to the extent that any court in which the Proceeding
was brought or the Delaware Court of Chancery shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnification.
5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL. Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee is a party to (or a participant in) and is successful, on
the merits or otherwise, in any Proceeding or in defense of any claim, issue or
matter therein, in whole or in part, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him or her 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 matter. If Indemnitee is not wholly successful in such Proceeding, the
Company also shall indemnify Indemnitee against all Expenses reasonably incurred
in connection with a claim, issue or matter related to any claim, issue or
matter on which Indemnitee was successful. For purposes of this Section and
without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness in any
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Proceeding to which Indemnitee is not a party, he shall be indemnified against
all Expenses actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.
7. ADDITIONAL INDEMNIFICATION.
(a) Notwithstanding any limitation in Sections 3, 4 or 5, the
Company shall indemnify Indemnitee to the fullest extent permitted by law if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(including a Proceeding by or in the right of the Company to procure a judgment
in its favor) against all Expenses, judgments, fines, penalties and amounts paid
in settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines,
penalties and amounts paid in settlement) actually and reasonably incurred by
Indemnitee in connection with the Proceeding. No indemnity shall be made under
this Section 7(a) on account of Indemnitee's conduct which constitutes a breach
of Indemnitee's duty of loyalty to the Company or its stockholders or is an act
or omission not in good faith or which involves intentional misconduct or a
knowing violation of the law.
(b) For purposes of Section 7(a), the meaning of the phrase
"TO THE FULLEST EXTENT PERMITTED BY LAW" shall include, but not be limited to:
(i) the fullest extent permitted by the provision of
the DGCL that authorizes or contemplates additional indemnification by agreement
or the corresponding provision of any amendment to or replacement of the DGCL;
and
(ii) the fullest extent authorized or permitted by
any amendments to or replacements of the DGCL adopted after the date of this
Agreement that increase the extent to which a corporation may indemnify its
officers and directors.
8. EXCLUSIONS. Notwithstanding any other provision in this Agreement,
the Company shall not be obligated under this Agreement to indemnify Indemnitee
in connection with any claim made against Indemnitee: (a) for which payment has
actually been received by or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess beyond the
amount actually received under any insurance policy or other indemnity
provision;
(b) for an accounting of profits made from the purchase and
sale (or sale and purchase) by Indemnitee of securities of the Company within
the meaning of Section 16(b) of the Exchange Act or similar provisions of state
statutory law or common law; or
(c) except as otherwise provided in Sections 13(d)-(f) hereof,
prior to a Change in Control, in connection with any Proceeding (or any part of
any Proceeding) initiated by Indemnitee, including any Proceeding (or any part
of any Proceeding) initiated by Indemnitee against the Company or its directors,
officers, employees or other indemnitees, unless (i) the Board of Directors of
the Company authorized the Proceeding (or any part of any Proceeding) prior to
its initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable law.
9. ADVANCES OF EXPENSES; DEFENSE OF CLAIM.
(a) Notwithstanding any provision of this Agreement to the
contrary, the Company shall advance the expenses incurred by Indemnitee in
connection with any Proceeding within ten (10) days after the receipt by the
Company of a statement or statements requesting such advances from time to
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time, whether prior to or after final disposition of any Proceeding. Advances
shall be unsecured and interest free. Advances shall be made without regard to
Indemnitee's ability to repay the expenses and without regard to Indemnitee's
ultimate entitlement to indemnification under the other provisions of this
Agreement. Advances shall include any and all reasonable Expenses incurred
pursuing an action to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the
advances claimed. Indemnitee shall qualify for advances solely upon the
execution and delivery to the Company of an undertaking providing that
Indemnitee undertakes to repay the advance to the extent that it is ultimately
determined that Indemnitee is not entitled to be indemnified by the Company.
This Section 9(a) shall not apply to any claim made by Indemnitee for which
indemnity is excluded pursuant to Section 8.
(b) The Company will be entitled to participate in the
Proceeding at its own expense.
(c) The Company shall not settle any action, claim or
Proceeding (in whole or in part) which would impose any Expense, judgment, fine,
penalty or limitation on Indemnitee without Indemnitee's prior written consent.
10. PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
(a) Within sixty (60) days after the actual receipt by
Indemnitee of notice that he or she is a party to or a participant (as a witness
or otherwise) in any Proceeding, Indemnitee shall submit to the Company a
written notice identifying the Proceeding. The omission by Indemnitee to notify
the Company will not relieve the Company from any liability which it may have to
Indemnitee (i) otherwise than under this Agreement and (ii) under this Agreement
except to the extent the Company can establish that such omission to notify
resulted in actual prejudice to the Company.
(b) Indemnitee shall thereafter deliver to the Company a
written application to indemnify Indemnitee in accordance with this Agreement.
Such application(s) may be delivered from time to time and at such time(s) as
Indemnitee deems appropriate in his or her sole discretion. Following such a
written application for indemnification by Indemnitee, Indemnitee's entitlement
to indemnification shall be determined in accordance with Section 11(a) of this
Agreement.
11. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(a) Upon written request by Indemnitee for indemnification
pursuant to Section 10(b), a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall be made in the specific case:
(i) by a majority vote of the Disinterested Directors, even if constituting less
than a quorum of the Board; or (ii) if so requested by Indemnitee, in his or her
sole discretion, by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee. 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 reasonably
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 with the person, persons
or entity making such determination 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.
(b) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 11(a)
hereof, the Independent Counsel shall be selected as
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provided in this Section 11(b). If a Change in 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 of the identity of
the Independent Counsel so selected. If a Change in 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 10
days after such written notice of selection shall have been received, deliver to
the Company or to Indemnitee, as the case may be, a written objection to such
selection; PROVIDED, HOWEVER, that 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 2 of this Agreement, and the
objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so selected shall
act as Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court of competent
jurisdiction has determined that such objection is without merit. If, within 20
days after submission by Indemnitee of a written request for indemnification
pursuant to Section 10(b) hereof, no Independent Counsel shall have been
selected and not objected to, either the Company or Indemnitee may petition a
court of competent jurisdiction (the "COURT") 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 all objections are so resolved or
the person so appointed shall act as Independent Counsel under Section 11(a)
hereof. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 13(a) of this Agreement, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then prevailing).
(c) The Company agrees to pay the reasonable fees of
Independent Counsel and to fully indemnify such Independent Counsel against any
and all Expenses, claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.
12. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or 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 10(b) 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.
Neither the failure of the Company (including by the Board or Independent
Counsel) to have made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including by the Board or Independent Counsel)
that Indemnitee has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
(b) If the person, persons or entity empowered or selected
under Section 11 of this Agreement to determine whether Indemnitee is entitled
to indemnification shall not have made a 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
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connection with the request for indemnification or (ii) a prohibition of such
indemnification under applicable law; PROVIDED, HOWEVER, that such 60-day period
shall be extended for a reasonable time, not to exceed an additional thirty (30)
days, if the person, persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such additional time for
the obtaining or evaluating of documentation and/or information relating
thereto.
(c) The termination of any Proceeding or of any claim, issue
or matter therein, by judgment, order, settlement or conviction, or upon a plea
of NOLO CONTENDERE or its 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 or her
conduct was unlawful.
(d) For purposes of any determination of good faith,
Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is
based on the records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for
the Enterprise or on information or records given or reports made to the
Enterprise by an independent certified public accountant or by an appraiser or
other expert selected by the Enterprise. The provisions of this Section 12(d)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any
other director, trustee, partner, managing member, fiduciary, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
13. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to
Section 11 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made pursuant
to Section 9 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 11(a) of this Agreement
within the time period specified in Section 12(b) of this Agreement, (iv)
payment of indemnification is not made pursuant to Section 5, 6, 7 or the last
sentence of Section 11(a) of this Agreement within ten (10) days after receipt
by the Company of a written request therefor or (v) payment of indemnification
pursuant to Section 3 or Section 4 of this Agreement is not made within ten (10)
days after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication by a court of
his or her entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his or her option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the Commercial
Arbitration 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 11(a) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 13 shall be conducted in all respects as a DE NOVO trial or
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 13, the Company shall have the burden of proving
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be, and the Company may not refer to or introduce into evidence any
determination pursuant to Section 11(a) of this Agreement adverse to Indemnitee
for any purpose. If Indemnitee commences a
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judicial proceeding or arbitration pursuant to this Section 13, Indemnitee shall
not be required to reimburse the Company for any advances pursuant to Section 9
until a final determination is made with respect to Indemnitee's entitlement to
indemnification (as to which all rights of appeal have been exhausted or
lapsed).
(c) If a determination shall have been made pursuant to
Section 11(a) 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 13, 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) In the event that Indemnitee, pursuant to this Section 13,
seeks a judicial adjudication of or an award in arbitration to enforce his or
her rights under, or to recover damages for breach of, this Agreement,
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all Expenses actually and reasonably
incurred by him or her in such judicial adjudication or arbitration. If it shall
be determined in said judicial adjudication or arbitration that Indemnitee is
entitled to receive part but not all of the indemnification or advancement of
Expenses sought, Indemnitee shall be entitled to recover from the Company, and
shall be indemnified by the Company against, any and all Expenses reasonably
incurred by Indemnitee in connection with such judicial adjudication or
arbitration.
(e) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 13 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.
(f) The Company shall indemnify Indemnitee to the fullest
extent permitted by law against all Expenses and, if requested by Indemnitee,
shall (within ten (10) days after the Company's receipt of such written request)
advance such Expenses to Indemnitee, which are incurred by Indemnitee in
connection with any judicial proceeding or arbitration brought by Indemnitee for
(i) indemnification or advances of Expenses by the Company under this Agreement
or any other agreement or provision of the Company's certificate of
incorporation or bylaws now or hereafter in effect or (ii) recovery or advances
under any insurance policy maintained by any person for the benefit of
Indemnitee, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance or insurance recovery, as the case may
be.
14. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(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, the Company's bylaws, any
agreement, a vote of stockholders, a resolution of directors or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal. The parties hereto intend that, to the
extent that a change in Delaware law, whether by statute or judicial decision,
permits greater indemnification or advancement of Expenses than would be
afforded currently under the Company's bylaws and this Agreement, the Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change.
No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law, in equity or otherwise. The assertion or
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employment of any right or remedy hereunder or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
trustees, partners, managing members, fiduciaries, employees or agents of the
Company or of any other Enterprise which such person serves at the request of
the Company, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
available for any such director, trustee, partner, managing member, fiduciary,
officer, employee or agent under such policy or policies. If, at the time the
Company receives notice from any source of a Proceeding as to which Indemnitee
is a party or a participant (as a witness or otherwise), the Company has
director and officer liability insurance in effect, the Company shall give
prompt notice of such Proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all amounts payable as a result of such Proceeding in accordance
with the terms of such policies.
(c) 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.
(d) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder (or for which
advancement is provided hereunder) if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
(e) The Company's obligation to indemnify or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as a
director, officer, trustee, partner, managing member, fiduciary, employee or
agent of any other Enterprise shall be reduced by any amount Indemnitee has
actually received as indemnification or advancement of expenses from such
Enterprise.
15. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (a) ten (10) years after the date that Indemnitee
shall have ceased to serve as a director or officer of the Company or as a
director, officer, trustee, partner, managing member, fiduciary, employee or
agent of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at the request of the
Company; or (b) one (1) year after the final termination of any Proceeding
(including any rights of appeal thereto) then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any Proceeding commenced by Indemnitee pursuant to Section 13
of this Agreement relating thereto (including any rights of appeal of any
Section 13 Proceeding).
16. SEVERABILITY. If any provision or provisions of this Agreement
shall 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 shall remain enforceable to the
fullest extent permitted by law; (b) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to give
the maximum effect to the intent of the parties hereto; and (c) 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 thereby.
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17. ENFORCEMENT AND BINDING EFFECT.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director or officer of the Company, and
the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a director or officer of the Company.
(b) This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied, between the
parties hereto with respect to the subject matter hereof.
(c) The indemnification and advancement of expenses provided
by or granted pursuant to this Agreement shall apply to Indemnitee's service as
an officer, director or key employee of the Company prior to the date of this
Agreement.
(d) The indemnification and advancement of expenses provided
by or granted pursuant to this Agreement shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
18. MODIFICATION AND WAIVER. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by 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 of this Agreement nor shall
any waiver constitute a continuing waiver.
19. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the
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. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation which it may have to Indemnitee under this
Agreement or otherwise, except as provided in Section 10(a).
20. NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (a) if delivered by hand and if receipt is acknowledged in writing by the
party to whom said notice or other communication shall have been directed or (b)
if mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the
signature page of this Agreement, or such other address as Indemnitee shall
provide in writing to the Company.
(b) If to the Company to: Odimo Incorporated
14401 NW 4th Street
Sunrise, Florida 33325
Attn.: Chief Executive Officer
With a copy to: Charles J. Rennert, Esq.
Berman Rennert Vogel & Mandler, P.A.
100 SE 2nd Street, Suite 2900
Miami, Florida 33131
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or to any other address as may have been furnished to Indemnitee in writing by
the Company.
21. CONTRIBUTION. To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding in
order to reflect: (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving rise to such
Proceeding; and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s)
and/or transaction(s).
22. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Agreement
and the legal relations among the parties shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to its conflict of laws rules. Except with respect to any arbitration
commenced by Indemnitee pursuant to Section 13(a) of this Agreement, the Company
and Indemnitee hereby irrevocably and unconditionally (i) agree that any action
or proceeding arising out of or in connection with this Agreement shall be
brought only in the Chancery Court of the State of Delaware (the "DELAWARE
COURT") and not in any other state or federal court in the United States of
America or any court in any other country, (ii) consent to submit to the
exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii) appoint,
to the extent such party is not a resident of the State of Delaware, irrevocably
The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801,
as its agent in the State of Delaware as such party's agent for acceptance of
legal process in connection with any such action or proceeding against such
party with the same legal force and validity as if served upon such party
personally within the State of Delaware, (iv) waive any objection to the laying
of venue of any such action or proceeding in the Delaware Court and (v) waive
and agree not to plead or to make any claim that any such action or proceeding
brought in the Delaware Court has been brought in an improper or inconvenient
forum.
23. IDENTICAL COUNTERPARTS. This Agreement may be executed in
one or more 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.
24. MISCELLANEOUS. Use of the masculine pronoun shall be
deemed to include usage of the feminine pronoun where appropriate. The headings
of the sections and paragraphs of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect
the construction thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
as of the day and year first above written.
ODIMO INCORPORATED, INDEMNITEE
a Delaware corporation
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[NAME]
By:
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Name: Alan Lipton Address:
Title: President -------------------------------
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