Exhibit 10.3
INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “ Agreement
”) is made as of July 5, 2007, by and between PASW, Inc, a
Delaware corporation (the “ Company ”), and
________________________ (the “ Indemnitee
”).
RECITALS
The Company and
Indemnitee recognize the increasing difficulty in obtaining
liability insurance for directors, officers and key employees,
the significant increases in the cost of such insurance and the
general reductions in the coverage of such insurance. The
Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting
directors, officers and key employees to expensive litigation
risks at the same time as the availability and coverage of
liability insurance has been severely limited. Indemnitee
does not regard the current protection available as adequate
under the present circumstances, and Indemnitee and agents of
the Company may not be willing to continue to serve as agents of
the Company without additional protection. The Company
desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, and to indemnify its directors,
officers and key employees so as to provide them with the
maximum protection permitted by law.
AGREEMENT
In consideration of
the mutual promises made in this Agreement, and for other good
and valuable consideration, receipt of which is hereby
acknowledged, the Company and Indemnitee hereby agree as
follows:
1.
Indemnification .
(a)
Third Party Proceedings .
The Company shall indemnify Indemnitee if Indemnitee is or
was a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of
the fact that Indemnitee is or was a director, officer, employee
or agent of the Company, or any subsidiary of the Company, by
reason of any action or inaction on the part of Indemnitee while
an officer or director or by reason of the fact that Indemnitee
is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement (if such settlement is approved in advance by
the Company, which approval shall not be unreasonably withheld)
actually and reasonably incurred by Indemnitee in connection
with such action, suit or proceeding if Indemnitee acted in good
faith and in a manner 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, had no reasonable
cause to believe Indemnitee’s conduct was unlawful.
The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, or, with respect
to any criminal action or proceeding, that Indemnitee had
reasonable cause to believe that Indemnitee’s conduct was
unlawful.
(b)
Proceedings By or in the Right of the
Company . The Company shall indemnify Indemnitee
if Indemnitee was or is a party or is threatened to be made a
party to any threatened, pending or completed action or
proceeding by or in the right of the Company or any subsidiary
of the Company to procure a judgment in its favor by reason of
the fact that Indemnitee is or was a director, officer, employee
or agent of the Company, or any subsidiary of the Company, by
reason of any action or inaction on the part of Indemnitee while
an officer or director or by reason of the fact that Indemnitee
is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees) and, to the fullest extent
permitted by law, amounts paid in settlement (if such settlement
is approved in advance by the Company, which approval shall not
be unreasonably withheld), in each case to the extent actually
and reasonably incurred by Indemnitee in connection with the
defense or settlement of such action or suit if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company and
its stockholders, except that no indemnification shall be made
in respect of any claim, issue or matter as to which Indemnitee
shall have been finally adjudicated by court order or judgment
to be liable to the Company in the performance of
Indemnitee’s duty to the Company and its stockholders
unless and only to the extent that the court in which such
action or proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for
such expenses which such court shall deem proper.
(c)
Mandatory Payment of Expenses .
To the extent that Indemnitee has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to in Section 1(a) or Section 1(b) or the
defense of any claim, issue or matter therein, Indemnitee shall
be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by Indemnitee in
connection therewith.
2.
No Employment Rights .
Nothing contained in this Agreement is intended to create
in Indemnitee any right to continued employment.
3.
Expenses; Indemnification Procedure .
(a)
Advancement of Expenses .
The Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action, suit or
proceeding referred to in Section l(a) or Section 1(b)
of this Agreement (including amounts actually paid in settlement
of any such action, suit or proceeding). Indemnitee
hereby undertakes to repay such amounts advanced only if, and to
the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Company as
authorized hereby.
(b)
Notice/Cooperation by Indemnitee .
Indemnitee shall, as a condition precedent to his or her
right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any claim made
against Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall
be directed to the Chief Executive Officer of the Company and
shall be given in accordance with the provisions of Section
12(d) below. In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee’s power.
(c)
Procedure . Any
indemnification and advances provided for in Section 1 and
this Section 3 shall be made no later than thirty (30) days
after receipt of the written request of Indemnitee. If a
claim under this Agreement, under any statute, or under any
provision of the Company’s Certificate of Incorporation or
Bylaws providing for indemnification, is not paid in full by the
Company within thirty (30) days after a written request for
payment thereof has first been received by the Company,
Indemnitee may, but need not, at any time thereafter bring an
action against the Company to recover the unpaid amount of the
claim and, subject to Section 11 of this Agreement,
Indemnitee shall also be entitled to be paid for the expenses
(including attorneys’ fees) of bringing such action.
It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in
connection with any action, suit or proceeding in advance of its
final disposition) that Indemnitee has not met the standards of
conduct which make it permissible under applicable law for the
Company to indemnify Indemnitee for the amount claimed, but the
burden of proving such defense shall be on the Company and
Indemnitee shall be entitled to receive interim payments of
expenses pursuant to Section 3(a) unless and until such
defense may be finally adjudicated by court order or judgment
from which no further right of appeal exists. It is the
parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of
Indemnitee’s right to indemnification shall be for the
court to decide, and neither the failure of the Company
(including its Board of Directors, any committee or subgroup of
the Board of Directors, independent legal counsel, or its
stockholders) to have made a determination that indemnification
of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup of
the Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee
has or has not met the applicable standard of conduct.
(d)
Notice to Insurers . If, at
the time of the receipt of a notice of a claim pursuant to
Section 3(b) hereof, the Company has director and officer
liability insurance in effect, the Company shall give prompt
notice of the commencement 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 desirab
