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EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement"), made as of
December 19,
2003, among Promos, Inc., a Colorado corporation (the
"Company"), and each of
Judith F. Harayda and Stephan R. Levy. Ms. Harayda and Mr. Levy
are each
referred to as an "Indemnitee" and, together, as the
"Indemnitees") (Ms. Harayda
and Mr.
Levy are sometimes, together, referred to herein as the
"Directors").
RECITALS:
WHEREAS, Ms. Harayda is willing to continue to serve as a
director of the
Company on the condition that in her capacity as a director of
the Company after
the Effective Time, she be indemnified to the fullest extent
permitted by law;
WHEREAS, Mr. Levy is willing to continue to serve as a director
of the
Company on the condition that in his capacity as a director of
the Company after
the Effective Time, he be indemnified to the fullest extent
permitted by law;
and
WHEREAS, concurrently with the execution of this Agreement, the
Directors
are each agreeing to continue to serve as a director of the
Company after the
Effective Time until his/her resignation as a director of the
Company is
effective upon compliance by the Company with the provisions of
Section 14(f) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and Rule
14f-1 promulgated thereunder.
NOW, THEREFORE, in consideration of the premises and the
covenants herein
contained, the Company and the Indemnitees hereby agree as
follows:
1. AGREEMENT TO SERVE. Each of the Directors agrees to continue
to serve as
a director of the Company after the Effective Time hereof until
his/her
resignation as a director of the Company is effective upon
compliance by the
Company to Section 14(f) of the Exchange Act and Rule 14f-1
promulgated
thereunder.
2. DEFINITIONS. As used in this Agreement:
(a) "Code" means the Internal Revenue Code of 1986, as
amended.
(b) "Effective Time" shall have the same meaning as in the
Agreement of
Purchase and Sale, dated as of the date hereof, among the
Company and OmniCorder
Technologies, Inc.
(c) "Expenses" includes, without limitation, all costs, expenses
and
obligations (including attorneys' fees and disbursements, court
costs, travel
expenses and fees of experts) incurred or paid in connection
with investigating,
defending, being a witness in or participating in, or preparing
to defend, any
Proceeding, whether conducted by the Company or otherwise,
including, without
limitation, any Proceeding, action or process for the purpose of
establishing
Indemnitees' right to indemnification under this Agreement and
any amounts paid
in settlement by or on behalf of Indemnitee.
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(d) "Independent Legal Counsel" means legal counsel who or which
has not
provided or performed services for the Company, any of its
directors, officers
or the Indemnitees for the last three years and is not otherwise
representing
any party to any Proceeding, other than legal services rendered
as an
independent legal counsel in any prior determination regarding
indemnification
under this Agreement or any similar agreement with any other
director or
officer.
(e) "Official Capacity" means the elective or appointive office
in the
Company held by the director and/or officer.
(f) "Person" shall mean any individual, corporation,
partnership, joint
venture, limited liability company or other entity.
(g) "Proceeding" includes any threatened, pending or completed
action, suit
or proceeding, whether of a civil, criminal, administrative,
arbitrative or
investigative nature (including all appeals therefrom), or any
inquiry or
investigation that could lead to such an action, suit or
proceeding.
(h) 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 that 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 is determined to have acted in
good faith and in
a manner he/she reasonably believed to be in the interest of the
participants
and beneficiaries of an employee benefit plan shall be deemed to
have acted in a
manner "he reasonably believed to be in or not opposed to the
best interests of
the Company," as referred to in this Agreement.
3. INDEMNITY. The Company shall indemnify the Indemnitees to the
fullest
extent permitted by law if any Indemnitee was, is or becomes a
party to or is
threatened to be made a party to or otherwise involved (as a
witness or
otherwise) in any Proceeding because any Director is or was,
after the Effective
Time, a director, officer, employee, trustee, agent or fiduciary
of the Company
or is or was serving, after the Effective Time, at the request
of the Company as
a director, officer, partner, venturer, proprietor, trustee,
employee, agent or
similar functionary of another foreign or domestic corporation,
partnership,
joint venture, sole proprietorship, trust or other enterprise,
against all
Expenses, judgments, amounts paid in settlement, fines and
penalties (including
excise and similar taxes) (each, a "Claim" and collectively,
"Claims") incurred
by the Indemnitees in connection with the defense or settlement
of such
Proceeding, but only if it is determined pursuant to Section 4
that the
applicable Director acted in good faith and (a) in the case of
conduct in
his/her Official Capacity, in a manner he/she reasonably
believed to be in the
best interests of the Company; (b) in all other cases, in a
manner he/she
reasonably believed to be in or not opposed to the best
interests of the Company
and (c) in the case of a criminal proceeding, had no reasonable
cause to believe
that his/her conduct was unlawful. No indemnification will be
made to any
Indemnitee with respect to any Proceeding relating to any
actions and/or
omissions occurring prior to, and including, the Effective Time
or in which the
applicable Director shall have been found liable for willful or
intentional
misconduct in the performance of his/her duty to the Company or
for any grossly
negligent act or
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omission. The termination of any such Proceeding by judgment,
order of
court, settlement, conviction, or upon a plea of nolo contendere
or its
equivalent, shall not, of itself, determine that Indemnitee did
not act in good
faith and in a manner he/she reasonably believed to be in or not
opposed to the
best interests of the Company or, with respect to any criminal
proceeding, that
such person had reasonable cause to believe that his/her conduct
was unlawful.
The Indemnitees shall be deemed to have been found liable in
respect of any
claim, issue or matter only
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