INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (the “ Agreement ”) is
made and entered into as of the ___ day of
, 2008, by and between clickNsettle.com, Inc., a Delaware
corporation (the “ Corporation ”), and
(“ Indemnitee ”), with reference to the
following facts:
A. Indemnitee
currently is serving or has been invited to serve as a director
and/or officer of the Corporation, and the Corporation wishes
Indemnitee to serve or to continue to serve in such
capacity.
B. The
Amended and Restated Certificate of Incorporation of the
Corporation (the “ Certificate of Incorporation
”) provides that the Corporation shall indemnify each person
who is or was a director or officer of the Corporation, and each
such person who is or was serving at the request of the Corporation
as a director or officer of another corporation, or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans maintained or
sponsored by the Corporation, against specified expenses and losses
arising as a result of their services in any such capacity, to the
fullest extent permitted from time to time by the Delaware General
Corporation Law (the “ GCL ”) or any other laws
as presently or hereafter in effect.
C. Both the
Corporation and Indemnitee recognize the increased risk of
litigation and other claims currently being asserted against
directors and officers of corporations.
D. In
recognition of Indemnitee’s need for substantial protection
against personal liability in order to enhance Indemnitee’s
continued and effective service to the Corporation, and in order to
induce Indemnitee to provide services to the Corporation as a
director and/or officer, it is the intention of this Agreement to
provide to Indemnitee certain indemnification rights that are in
addition to those rights described in the Certificate of
Incorporation and the Corporation’s Bylaws.
E. As used in
this Agreement, the terms “enterprise”,
“proceeding” and “expenses” have the
meanings set forth in Section 11.1, and the terms
“fines”, “serving at the request of the
Corporation” and “not opposed to the best interests of
the Corporation” shall be construed in accordance with the
provisions of Section 11.3.
NOW, THEREFORE, as
an inducement to Indemnitee to serve or to continue to serve as a
director and/or officer of the Corporation, the Corporation agrees
with Indemnitee as follows:
1.
Indemnification . The Corporation shall indemnify Indemnitee
if Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness
or other participant in, any proceeding (including but not limited
to a proceeding by or in the right of the Corporation) by reason of
(or arising in part out of) the fact that Indemnitee is or was a
director, officer, employee or other agent of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another enterprise, against expenses,
judgments, fines, settlement payments and other amounts actually
and reasonably incurred by Indemnitee in connection with such
proceeding, and any federal, state, local or foreign taxes imposed
as the result of the actual or deemed receipt of any payments under
this
Agreement, 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 Corporation, and, in the case of a criminal proceeding, had
no reasonable cause to believe that Indemnitee’s conduct was
unlawful. The termination of any proceeding by judgment, order,
settlement (whether with or without court approval), 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 Corporation or, in the
case of a criminal proceeding, that Indemnitee had reasonable cause
to believe that Indemnitee’s conduct was unlawful.
2.
Mandatory Payment of Expenses . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in the defense of any
proceeding referred to in Section 1, or in the defense of any
claim, issue or matter therein, including without limitation,
dismissal without prejudice, Indemnitee shall be indemnified
against expenses actually and reasonably incurred by Indemnitee in
connection therewith.
3.
Expenses; Indemnification Procedure .
3.1
Advance of Expenses . At the times specified in
Section 3.4(a) hereof, the Corporation shall advance all
expenses incurred by Indemnitee in defending any proceeding
referred to in Section 1 prior to the final disposition of
such proceeding. Expense advances shall be made without regard to
Indemnitee’s ability to repay the amount of the advances and
without regard to Indemnitee’s ultimate entitlement to
indemnification under the provisions of this Agreement. Indemnitee
hereby undertakes to repay such amounts advanced if it ultimately
shall be determined by final judicial decision from which there is
no further right to appeal that Indemnitee is not entitled to be
indemnified by the Corporation. Any obligation to reimburse the
Corporation for expense advances shall be unsecured, and no
interest shall be charged thereon.
3.2
Notice/Cooperation by Indemnitee . Indemnitee shall give the
Corporation notice in writing as soon as practicable of any
proceeding for which indemnification will or could be sought under
this Agreement; provided , however , the failure to
so notify the Corporation shall not relieve the Corporation of any
liabilities hereunder unless (and then solely to the extent that)
the Corporation is materially damaged or prejudiced thereby or the
defense of the proceeding for which indemnification is sought is
materially prejudiced thereby. Notice to the Corporation shall be
directed to the Secretary of the Corporation at the address shown
on the signature page of this Agreement (or such other address as
the Corporation shall designate in writing to Indemnitee).
Indemnitee shall give the Corporation such information and
cooperation as the Corporation may reasonably require with respect
to the proceeding in question and as shall be within
Indemnitee’s reasonable ability to provide.
3.3
Determination of Standard of Conduct . It shall be a defense
to any claim by Indemnitee for indemnification hereunder and to any
action brought by Indemnitee pursuant to Section 3.4(a) (other
than a claim or action to enforce a claim for expenses incurred in
connection with any proceeding in advance of its final disposition)
that Indemnitee has not met the standard of conduct which makes it
permissible for the Corporation to indemnify Indemnitee for the
amount claimed, but the burden of proving such defense (by clear
and convincing evidence) shall be on the Corporation, and
Indemnitee shall be entitled to receive interim payments of
expenses pursuant to Section 3.1 unless and until such defense
is finally adjudicated
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in favor of the
Corporation by court order or judgment from which no further right
of appeal exists. It is the parties’ intention that, if the
Corporation contests Indemnitee’s right to indemnification,
the question of Indemnitee’s right to indemnification shall
be decided by judicial proceedings, and neither the failure of the
Corporation (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
is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the
Corporation (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 standard of
conduct, shall create a presumption that Indemnitee has or has not
met the applicable standard of conduct.
3.4
Certain Procedural Matters .
(a)
Timing of Payments . Any indemnification and advances
provided for in this Agreement 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 Certificate of Incorporation or the
Corporation’s Bylaws providing for indemnification is not
paid in full by the Corporation within thirty (30) days after
a written request for payment thereof has first been received by
the Corporation, Indemnitee may, but need not, at any time
thereafter bring an action against the Corporation to recover the
unpaid amount of the claim, and, subject to Section 14 of this
Agreement, Indemnitee also shall be entitled to be paid for the
expenses of bringing such action.
(b)
Notice to Insurers . If, at the time of the receipt of a
notice of a claim pursuant to Section 3.2 hereof, the
Corporation has director and officer liability insurance in effect,
the Corporation shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures
set forth in the applicable policy or policies. The Corporation
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
policy or policies. If the Corporation fails to take such action on
Indemnitee’s behalf, Indemnitee may do so, whereupon the
Corporation shall indemnify Indemnitee against all expenses
incurred by Indemnitee in connection with any proceeding brought by
Indemnitee against the insurers for recovery under any such
insurance.
(c)
Selection of Counsel . The Corporation shall be entitled to
assume the defense of any proceeding with respect to which it is
obligated to advance expenses pursuant to Section 3.1, with
counsel reasonably satisfactory to Indemnitee, upon the delivery to
Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by Indemnitee and
the retention of such counsel by the Corporation, the Corporation
will not be liable to advance counsel fees to Indemnitee with
respect to the same proceeding, provided that (i) Indemnitee shall
have the right to employ his or her own counsel in any such
proceeding at Indemnitee’s expense; and (ii) if
(A) the employment of counsel by Indemnitee has been
previously authorized by the Corporation, (B) Indemnitee shall
have reasonably concluded that there may be a conflict of interest
between the Corporation and Indemnitee in the conduct of any such
defense, (C) Indemnitee shall have reasonably concluded that the
Corporation is not diligently pursuing the defense of the
proceeding, or (D) the Corporation shall not, in fact, have
employed counsel to assume the defense of the proceeding, then the
fees and expenses of Indemnitee’s counsel shall be at the
expense of the Corporation. In
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