DIRECTOR
INDEMNIFICATION AGREEMENT
This
DIRECTOR INDEMNIFICATION AGREEMENT (this ''Agreement") is made
and entered into this July
1,
2007 (the "Effective Date") by and between T3
Motion, Inc . , a Delaware
corporation (the "Company "),
and Steven
J. Healy (the " Indemnitee
").
WHEREAS, the Company believes it is essential to retain
and attract qualified directors;
WHEREAS,
the Indemnitee has been duly elected to serve as a director of
the Company in accordance with the Bylaws of the Company (the
" Bylaws
"") and the DGCL (as hereinafter defined);
WHEREAS,
the parties hereto acknowledge that Indemnity's service to the
Company may expose the Indemnities to claims, lawsuits and
risk of liability;
WHEREAS,
the Company's Certificate of Incorporation ( t he " Certificate
, of Incorporation
) and Bylaws require the
Company to indemnify and advance expenses to its
directors and officers to the extent permitted by the DGCL (as
hereinafter defined);
WHEREAS,
the parties hereto acknowledge the need for (i) substantial
protection of the Indemnitee against personal liability based
on the Indemnitee's reliance on the Certificate of
Incorporation and Bylaws, and (ii) specific contractual
assurance that the protection promised by the Certificate of
Incorporation and Bylaws will be available to the Indemnitee,
regardless of, among other things, any amendment to or
revocation of the Bylaws or any change in the composition of
the Company's Board of Directors (the " Board ")
or acquisition transactions relating to the Company;
and
WHEREAS,
as an inducement to continue to provide effective services to
the Company as a director thereof, the Company wishes to
provide indemnification, of the Indemnitee and to advance
expenses to the Indemnitee to the fullest extent permitted by
law and as set forth in this Agreement, and, to the extent
insurance is maintained by the Company, to provide for the
continued coverage of the Indemnitee under the Company's
directors' and officers liability insurance
policies;
NOW,
THEREFORE in consideration of the premises contained herein
and of the Indemnitee continuing to serve the Company directly
or, at its request with another enterprise, and intending to
be legally bound hereby, the parties hereto agree as
follows:
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(a) A “
Change in
Control " shall be deemed to have occurred
if:
(i) any
"person" as such term is used in Sections 13(d) and 14(d)
of the
Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (the “ Exchange Act ”),
other then (a) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company; (b)
a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company; or
(c) any current beneficial stockholder or group, as
defined by Rule 13d-5 of the Exchange Act, including the
heirs, assigns and successors' thereof, of beneficial
ownership, within the meaning of Rule 13d-3 of the Exchange
Act, of securities possessing more than 50% of the total
combined voting power of the Company's outstanding
securities; hereafter becomes the "beneficial owner," as
defined in Rule 13d-3 of the Exchange Act, directly or
indirectly, of securities of the Company representing 20% or
more of the total combined voting power represented by the
Company's then outstanding Voting Securities;
(ii) during
any period of two consecutive years, individuals who at
the beginning
of such period constitute the Board and any new director
whose election by the Board or nomination for election by the
Company's stock holders was approved by a vote of at least
two thirds of the directors then 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 a majority thereof; or
(iii) the
stockholders of the Company approve a merger or
consolidation
of the Company with any other corporation, other than a merger
or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of
the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company, in
one transaction or a series of transactions, of all or
substantially all of the Company's assets.
(b) " DGCL "
shall mean the General Corporation Law of the State of
Delaware, as the same
exists or may hereafter be amended or interpreted; provided,
however, that in the case of any such amendment or
interpretation, only to the extent that such amendment
or interpretation permits the Company to provide broader
indemnification rights than were permitted prior
thereto.
(c) "Expense"
shall mean attorneys' fees and all other costs, expenses and
obligations paid or incurred in connection with,
investigating, defending, being a witness in or participating
in (including on appeal), or preparing for any of the
foregoing, any Proceeding relating to any Indemnifiable
Event,
(d) "Indemnifiable
Event" shall mean any event or occurrence that takes place
either prior to or after the execution of this Agreement,
related to the fact that the Indemnitee is or
was a director or officer of the Company, or is or was
serving at the request of the Company as a director, officer,
employee, or agent of another corporation or of
a partnership, joint venture, trust or other
enterprise including service with respect to employee benefit
plans, or by reason of anything done or not done by the
Indemnitee in any such capacity.
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(e) “
Proceedin
g" shall mean any threatened, pending or completed action,
suit, investigation or proceeding, and any appeal thereof,
whether civil, criminal, administrative or investigative
and/or any inquiry or investigation, whether conducted by the
Company or any other party, that the Indemnitee in good faith
believes might lead to the institution of any such
action.
(f) " Voting
Securities " shall mean any securities of the Company
which vote generally in the election of directors.
2.
Indemnification
. In the event the Indemnitee becomes a party to or
becomes involved (as a party, witness, or otherwise) in any
Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, whether the basis of the Proceeding is the
Indemnitee's alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director,
the Company shall indemnify the Indemnitee to the fullest extent
permitted by the DGCL against any and all Expenses,
liability, and loss (including judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement,
and any interest, assessments, or other charges imposed thereon,
and any federal, state, local, or foreign taxes imposed on
any
director or officer as a result, of the actual or deemed receipt of
any payments under this Agreement (collectively, "Liabilities'')
reasonably incurred or suffered by such person in connection with
such Proceeding. The Company shall provide indemnification pursuant
to this Section 2 as soon as practicable, but in no event later
than thirty (30) days after it receives written demand from the
Indemnitee. Notwithstanding anything in this Agreement to the
contrary and except as provided in Section 5 below, the Indcmnitee
shall not be entitled to indemnification pursuant to
this Agreement (i) in connection
with any Proceeding initiated by the Indemnitee against the Company
or any director or officer of the Company unless the Company has
joined in or consented to the initiation of such Proceeding or
(ii) on account of any suit in which judgment is rendered
against the Indemnitee pursuant to Section 16(b) of the Exchange
Act for an accounting of profits made from the purchase or sale by
the Indemnity of securities of the Company.
3.
Advancement
of Expenses . The Company shall advance Expenses to the
Indemnitee within thirty (30) days of such request (an "Expense
Advance"); provided, however, that if required applicable corporate
laws such Expenses shall be advanced only upon delivery
to the Company of an undertaking by or on behalf of the Indemnity
to repay such amount if it is ultimately determined that the
Indemnitee is not entitled to be indemnified by the Company; and
provided further, that the Company shall make such advances only to
the extent permitted by law.
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