DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
This
Agreement is made and entered into this 8th day of December 2005
(the
"Agreement"), by and between US Global
Nanospace, Inc., a Delaware corporation
(the "Company", which term shall include,
where appropriate, any Entity (as
hereinafter defined) controlled directly or
indirectly by the Company) and Julie
Seaman (the "Indemnitee").
WHEREAS,
the Indemnitee has served as an officer and director of the
Company since May 2002;
WHEREAS,
the Company has incurred substantial liability to the
Indemnitee
resulting from loans made to the Company
and accrued but unpaid salary owed by
the Company to the Indemnitee;
WHEREAS,
as an officer and director of the Company, the Indemnitee has
been exposed to significant litigation
risks and expenses, and the Company does
not currently carry directors and officers
liability insurance;
WHEREAS,
in light of the foregoing, the Company desires to provide the
Indemnitee with specific contractual
assurance of the Indemnitee's rights to
full indemnification against litigation
risks and expenses (regardless, among
other things, of any amendment to or
revocation of any the Company's Certificate
of Incorporation or by-laws or any change
in the ownership of the Company or the
composition of its Board of Directors);
and
NOW,
THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and the
Indemnitee do hereby covenant and agree as
follows:
1.
Definitions.
(a) "Corporate Status" describes the status of a person who is
serving or has served (i) as a director of
the Company, including as a member of
any committee thereof, (ii) as an officer
of the Company, (iii) in any capacity
with respect to any employee benefit plan
of the Company, or (iv) as a director,
partner, trustee, officer, employee, or
agent of any other Entity at the request
of the Company. For purposes of subsection
(iv) of this Section 1(a), an officer
or director of the Company who is serving
or has served as a director, partner,
trustee, officer, employee or agent of a
Subsidiary (as defined below) shall be
deemed to be serving at the request of the
Company.
(b) "Entity" shall mean any corporation, partnership, limited
liability company, joint venture, trust,
foundation, association, organization
or other legal entity.
(c) "Expenses" shall mean all direct and indirect fees, costs
and
expenses of any nature whatsoever actually
and reasonably incurred in connection
with the investigation, preparation of a
defense, appeal of or settlement of any
Proceeding (as defined below), including,
without limitation, reasonable
attorneys fees, disbursements and retainers
(including, without limitation, any
such fees, disbursements and retainers
incurred by the Indemnitee pursuant to
Sections 8 and 11(c) of this Agreement),
fees and disbursements of expert
witnesses, private investigators and
professional advisors (including, without
limitation, accountants and investment
bankers), court costs, transcript costs,
fees of experts, travel expenses,
duplicating, printing and binding costs,
telephone and fax transmission charges,
postage, delivery services, secretarial
services and other disbursements and
expenses; provided, however, that Expenses
shall not include judgments, fines,
penalties or amounts paid in settlement of a
Proceeding.
<PAGE>
(d) "Indemnifiable Expenses", "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the
meanings ascribed to those terms in
Section 3(a) below.
(e) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and
amounts paid in settlement.
(f) "Proceeding" shall mean any threatened, pending or
completed
claim, action, suit, arbitration, alternate
dispute resolution process,
investigation, administrative hearing,
appeal, or any other proceeding, whether
civil, criminal, administrative,
arbitrative or investigative, whether formal or
informal, whether or not he is serving in
such capacity at the time any Expense
or Liability is incurred for which
indemnification or reimbursement can be
provided under this Agreement, including a
proceeding initiated by the
Indemnitee pursuant to Section 11 of this
Agreement to enforce the Indemnitee's
rights hereunder or an action brought by or
in the right of the Company.
(g) "Subsidiary" shall mean any corporation, partnership,
limited
liability company, joint venture, trust or
other Entity of which the Company
owns (either directly or through or
together with another Subsidiary of the
Company) either (i) a general partner,
managing member or other similar interest
or (ii) (A) 50% or more of the voting power
of the voting capital stock or other
voting equity interests of any corporation,
partnership, limited liability
company, joint venture or other Entity, or
(B) 50% or more of the outstanding
voting capital stock or other voting equity
interests of any corporation,
partnership, limited liability company,
joint venture or other Entity.
2.
Services of the Indemnitee. This Agreement shall not impose any
obligation on the Indemnitee or the Company
to continue the Indemnitee's service
to the Company beyond any period otherwise
required by law or by other
agreements or commitments of the parties,
if any.
3.
Agreement to Indemnify. The Company agrees to indemnify the
Indemnitee
as follows:
(a) Subject to the exceptions contained in Section 4(a) below,
if
the Indemnitee 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) by reason of
the Indemnitee's Corporate Status, or by
reason of any personal guarantee
provided by the Indemnitee with respect to
any obligation of the Company, the
Indemnitee shall be indemnified by the
Company against all Expenses and
Liabilities incurred or paid by the
Indemnitee in connection with such
Proceeding (referred to herein as
"Indemnifiable Expenses" and "Indemnifiable
Liabilities", respectively, and
collectively as "Indemnifiable Amounts").
<PAGE>
(b) To the fullest extent permitted by applicable law and subject
to
the exceptions contained in Section 4(b)
below, if the Indemnitee was or is a
party or is threatened to be made a party
to any Proceeding by or in the right
of the Company to procure a judgment in its
favor by reason of the Indemnitee's
Corporate Status, the Indemnitee shall be
indemnified by the Company against all
Indemnifiable Expenses as well as against
any amount paid by Indemnitee in
settlement of the Proceeding.
4.
Exceptions to Indemnification. Upon receipt of a written claim
addressed to the Board of Directors for
indemnification pursuant to Section 3,
the Company shall determine by any of the
methods set forth in Section 145(d) of
the Delaware General Corporation Law
whether the Indemnitee has met the
applicable standards of conduct which makes
is permissible under applicable law
to indemnify the Indemnitee. If it is
determined that the Indemnitee is entitled
to indemnification, the Indemnitee shall be
entitled to such indemnification
under Sections 3(a) and 3(b) above in all
circumstances other than the
following:
(a) If indemnification is requested under Section 3(a) and it
has
been determined that, in connection with
the subject of the Proceeding out of
which the claim for indemnification has
arisen, the Indemnitee failed to act (i)
in good faith and (ii) in a manner the
Indemnitee reasonably believed to be in
or not opposed to the best interests of the
Company and, with respect to any
criminal action or proceeding, the
Indemnitee had reasonable cause to believe
that the Indemnitee's conduct was unlawful,
the Indemnitee shall not be entitled
to payment of Indemnifiable Amounts
hereunder.
(b) If indemnification is requested under Section 3(b) and
(i) it has been determined that, in connection with the
subject of the Proceeding out of which the claim for
indemnification
has arisen, the Indemnitee failed to act (A) in good faith and
(B)
in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, the Indemnitee
shall
not be entitled to payment of Indemnifiable Expenses hereunder;
or
(ii) it has determined that the Indemnitee is liable to the
Company with respect to any claim, issue or matter involved in
the
Proceeding out of which the claim for indemnification has arisen,
no
Indemnifiable Expenses shall be paid with respect to such
claim,
issue or matter unless the Court of Chancery or another court
in
which such Proceeding was brought 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 indemnity for such Indemnifiable Expenses which
such
court shall deem proper.
5.
Procedure for Payment of Indemnifiable Amounts. The Indemnitee
shall
submit to the Company a written request
specifying the Indemnifiable Amounts for
which the Indemnitee seeks payment under
Section 3 of this Agreement and the
basis for the claim. The Company shall pay
such Indemnifiable Amounts to the
Indemnitee within ten (10) calendar days of
receipt of the request. At the
request of the Company, the Indemnitee
shall furnish such documentation and
information as is reasonably available to
the Indemnitee and necessary to
establish that the Indemnitee is entitled
to indemnification hereunder.
<PAGE>
6.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other
provision of this Agreement, and without
limiting any such provision, to the extent
that the Indemnitee is, by reason of
the Indemnitee's Corporate Status, a party
to and is successful, on the merits
or otherwise, in any Proceeding, the
Indemnitee shall be indemnified against all
Expenses reasonably incurred by the
Indemnitee or on the Indemnitee's behalf in
connection therewith. If the 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 the Indemnitee against all
Expenses reasonably incurred by the
Indemnitee or on the Indemnitee's behalf in
connect
