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EXHIBIT 10(ff)
INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (the "AGREEMENT") is made and entered
into as of AUGUST 21, 2009 between Westbridge Research Group, a
California
corporation (the "COMPANY"), and MARK COLE ("INDEMNITEE"), in
connection with
the following:
A. It has become
increasingly difficult to recruit and retain
individuals to act as directors and officers of corporations or in
other
capacities unless they are provided with adequate protection
through insurance
or adequate indemnification against inordinate risks of claims and
actions
against them arising out of their service to and activities on
behalf of the
corporation;
B. The Board of
Directors of the Company (the "BOARD") has determined
that, in order to attract and retain qualified individuals, the
Company will
attempt to maintain on an ongoing basis, at its sole expense,
liability
insurance to protect persons serving the Company and its
subsidiaries from
certain liabilities.
C. The By-laws and
Articles of Incorporation of the Company require
indemnification of the officers and directors of the Company.
D. Indemnitee may
also be entitled to indemnification pursuant to the
Corporations Code of the State of California ("CODE"). The By-laws
and the
Articles of Incorporation and the Code expressly provide that
the
indemnification provisions set forth therein are not exclusive, and
thereby
contemplate that contracts may be entered into between the Company
and members
of the bond of directors, officers and other persons with respect
to
indemnification;
E. The Board has
determined that the increased difficulty in attracting
and retaining such persons is detrimental to the best interests of
the Company's
stockholders and that the Company should act to assure such persons
that there
will be increased certainty of such protection in the future;
F. It is
reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance
expenses on behalf
of, such persons to the fullest extent permitted by applicable law
so that they
will serve or continue to serve the Company free from undue concern
that they
will not be so indemnified;
G. This Agreement
is a supplement to and in furtherance of the By-laws
and Articles of Incorporation of the Company and any resolutions
adopted
pursuant thereto, and shall not be deemed a substitute therefor,
nor to diminish
or abrogate any rights of Indemnitee thereunder. and
H. Indemnitee does
not regard the protection available under the
Company's By-laws and Articles of Incorporation and insurance as
adequate in the
present circumstances, and may not be willing to serve as an
officer or director
without adequate protection, and the Company desires Indemnitee to
serve in such
capacity. Indemnitee is willing to serve, continue to serve and to
take on
additional service for or on behalf of the Company on the condition
that
Indemnitee be so indemnified.
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NOW, THEREFORE, in
consideration of Indemnitee's agreement to serve as
an officer and/or director from and after the date hereof, the
parties hereto
agree as follows:
1. INDEMNITY OF
INDEMNITEE. The Company hereby agrees to hold harmless
and indemnify Indemnitee to the fullest extent permitted by law, as
such may be
amended from time to time. In furtherance of the foregoing
indemnification, and
without limiting the generality thereof:
(a)
PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF
THE COMPANY. Indemnitee shall be entitled to the rights of
indemnification
provided in this SECTION 1(a) if, by reason of Indemnitee's
Corporate Status (as
hereinafter defined), the Indemnitee is, or is threatened to be
made, a party to
or participant in any Proceeding (as hereinafter defined) other
than a
Proceeding by or in the right of the Company. Pursuant to this
SECTION L(a),
Indemnitee shall be indemnified against all Expenses (as
hereinafter defined),
judgments, penalties, fines and amounts paid in settlement actually
and
reasonably incurred by him, or on his behalf, in connection with
such Proceeding
or any claim, issue or matter therein, if the Indemnitee acted in
good faith and
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
Proceeding, had
no reasonable cause to believe the Indemnitee's conduct was
unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee
shall be entitled to the rights of indemnification provided in this
SECTION 1(B)
if, by reason of Indemnitee's Corporate Status, the Indemnitee is,
or is
threatened to be made, a party to or participant in any Proceeding
brought by or
in the right of the Company. Pursuant to this SECTION 1(b),
Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by the
Indemnitee, or on the Indemnitee's behalf, in connection with such
Proceeding if
the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably
believed to be in or not opposed to the best interests of the
Company; provided,
however, if applicable law so provides, no indemnification against
such Expenses
shall be made in respect of any claim, issue or matter in such
Proceeding as to
which Indemnitee shall have been adjudged to be liable to the
Company unless and
to the extent that a court of appropriate jurisdiction shall
determine that such
indemnification may be made.
(c) INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision of this
Agreement, to the
extent that Indemnitee is, by reason of Indemnitee's Corporate
Status, a party
to and is successful, on the merits or otherwise, in any
Proceeding, Indemnitee
shall be indemnified to the maximum extent permitted by law, as
such may be
amended from time to time, against all Expenses actually and
reasonably incurred
by Indemnitee or on Indemnitee's behalf in connection therewith. If
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 Indemnitee against all
Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection
with each successfully resolved claim, issue or matter. For
purposes of this
Section and without limitation, the termination of any claim, issue
or matter in
such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be
a successful result as to such claim, issue or matter.
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2. ADDITIONAL
INDEMNITY. In addition to, and without regard to any
limitations on, the indemnification provided for in SECTION 1 of
this Agreement,
the Company shall and hereby does indemnify and hold harmless
Indemnitee against
all Expenses, judgments, penalties, fines and amounts paid in
settlement
actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf if, by
reason of Indemnitee's Corporate Status, Indemnitee is, or is
threatened to be
made, a party to or participant in any Proceeding (including a
Proceeding by or
in the right of the Company), including, without limitation, all
liability
arising out of the negligence or active or passive wrongdoing of
Indemnitee. The
only limitation that shall exist upon the Company's obligations
pursuant to this
Agreement shall be that the Company shall not be obligated to make
any payment
to Indemnitee that is finally determined (under the procedures, and
subject to
the presumptions, set forth in SECTIONS 6 and 7 hereof) to be
unlawful.
3.
CONTRIBUTION.
(a) Whether or not the indemnification provided in SECTIONS 1
and 2 hereof is available, in respect of any threatened, pending or
completed
action, suit or proceeding in which the Company is jointly liable
with
Indemnitee (or would be if joined in such action, suit or
proceeding), the
Company shall pay, in the first instance, the entire amount of any
judgment or
settlement of such action, suit or proceeding without requiring
Indemnitee to
contribute to such payment and the Company hereby waives and
relinquishes any
right of contribution it may have against Indemnitee. The Company
shall not
enter into any settlement of any action, suit or proceeding in
which the Company
is jointly liable with Indemnitee (or would be if joined in such
action, suit or
proceeding) unless such settlement provides for a full and final
release of all
claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the
Company set forth in the preceding subparagraph, if, for any
reason, Indemnitee
shall elect or be required to pay all or any portion of any
judgment or
settlement in any threatened, pending or completed action, suit or
proceeding in
which the Company is jointly liable with Indemnitee (or would be if
joined in
such action, suit or proceeding), the Company shall contribute to
the amount of
Expenses, judgments, fines and amounts paid in settlement actually
and
reasonably incurred and paid or payable by Indemnitee in proportion
to the
relative benefits received by the Company and all officers,
directors or
employees of the Company, other than Indemnitee, who are jointly
liable with
Indemnitee (or would be if joined in such action, suit or
proceeding), on the
one hand, and Indemnitee, on the other hand, from the transaction
from which
such action, suit or proceeding arose; provided, however, that the
proportion
determined on the basis of relative benefit may, to the extent
necessary to
conform to law, be further adjusted by reference to the relative
fault of the
Company and all officers, directors or employees of the Company
other than
Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand,
in connection with the events that resulted in such expenses,
judgments, fines
or settlement amounts, as well as any other equitable
considerations which the
Law may require to be considered. The relative fault of the Company
and all
officers, directors or employees of the Company, other than
Indemnitee, who are
jointly liable with Indemnitee (or would be if joined in such
action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand,
shall be
determined by reference to, among other things, the degree to which
their
actions were motivated by intent to gain personal profit or
advantage, the
degree to which their liability is primary or secondary and the
degree to which
their conduct is active or passive.
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(c) The Company hereby agrees to fully indemnify and hold
Indemnitee harmless from any claims of contribution which may be
brought by
officers, directors or employees of the Company, other than
Indemnitee, who may
be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law, if
the indemnification provided for in this Agreement is unavailable
to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying
Indemnitee,
shall contribute to the amount incurred by Indemnitee, whether for
judgments,
fines, penalties, excise taxes, amounts paid or to be paid in
settlement and/or
for Expenses, in connection with any claim relating to an
indemnifiable event
under his Agreement, in such proportion as is deemed fair and
reasonable in
light of all of the circumstances of such Proceeding in order to
reflect (i) the
relative benefits received by the Company and Indemnitee as a
result of the
event(s) and/or transaction(s) giving cause to such Proceeding;
and/or (ii) the
relative fault of the Company (and its directors, officers,
employees and
agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
4. INDEMNIFICATION
FOR EXPENSES OF A WITNESS. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by
reason of
Indemnitee's Corporate Status, a witness, or is made (or asked to)
respond to
discovery requests, in any Proceeding to which Indemnitee is not a
party,
Indemnitee shall be indemnified against all Expenses actually and
reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection
therewith.
5. ADVANCEMENT OF
EXPENSES. Notwithstanding any other provision of this
Agreement, the Company shall advance all Expenses incurred by or on
behalf of
Indemnitee in connection with any Proceeding by reason of
Indemnitee's Corporate
Status within thirty (30) days after the receipt by the Company of
a statement
or statements from Indemnitee requesting such advance or advances
from time to
time, whether prior to or after final disposition of such
Proceeding. Such
statement or statements shall reasonably evidence the Expenses
incurred by
Indemnitee and shall include or be preceded or accompanied by a
written
undertaking by or on behalf of Indemnitee to repay any Expenses
advanced if it
shall ultimately be determined that Indemnitee is not entitled to
be indemnified
against such Expenses. Any advances and undertakings to repay
pursuant to this
SECTION 5 shall be unsecured and interest free.
6. PROCEDURES AND
PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION. It is the intent of this Agreement to secure for
Indemnitee
rights of indemnity that are as favorable as may be permitted under
the Code and
public policy of the State of California. Accordingly, the parties
agree that
the following procedures and presumptions shall apply in the event
of any
question as to whether Indemnitee is entitled to indemnification
under this
Agreement:
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(a)
To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including therein or
therewith
such documentation and information as is reasonably available to
Indemnitee and
is reasonably necessary to determine whether and to what extent
Indemnitee is
entitled to indemnification. The Secretary of the Company shall,
promptly upon
receipt of such a request for indemnification, advise the Board of
Directors in
writing that Indemnitee has requested indemnification.
Notwithstanding the
foregoing, any failure of Indemnitee to provide such a request to
the Company,
or to provide such a request in a timely fashion, shall not relieve
the Company
of any liability that it may have to Indemnitee unless, and to the
extent that,
such failure actually and materially prejudices the interests of
the Company.
(b) Upon written request by Indemnitee for indemnification
pursuant to the first sentence of SECTION 6(A) hereof, a
determination with
respect to Indemnitee's entitlement thereto shall be made in the
specific case
by one of the following four methods, which shall be at the
election of the
board: (1) by a majority vote of the disinterested directors, even
though less
than a quorum, (2) by a committee of disinterested directors
designated by a
majority vote of the disinterested directors, even though less than
a quorum,
(3) if there are no disinterested directors or if the disinterested
directors so
direct, by independent legal counsel in a written opinion to the
Board of
Directors, a copy of which shall be delivered to the Indemnitee, or
(4) if so
directed by the Board of Directors, by the stockholders of the
Company. For
purposes hereof, disinterested directors are those members of the
board of
directors of the Company who are not parties to the action, suit or
proceeding
in respect of which indemnification is sought by Indemnitee.
(c) If the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to SECTION 6(b) hereof,
the
Independent Counsel shall be selected as provided in this SECTION
6(c). The
Independent Counsel shall be selected by the Board of Directors.
Indemnitee may,
within 10 days after such written notice of selection shall have
been given,
deliver to the Company a written objection to such selection;
provided, however,
that such objection may be asserted only on the ground that the
Independent
Counsel so selected does not meet the requirements of "INDEPENDENT
COUNSEL" as
defined in SECTION 13 of this Agreement, and the objection shall
set forth with
particularity the factual basis of such assertion. Absent a proper
and timely
objection, the person so selected shall act as Independent Counsel.
If a written
objection is made and substantiated, the Independent Counsel
selected may not
serve as Independent Counsel unless and until such objection is
withdrawn or a
court has determined that such objection is without merit. If,
within 20 days
after submission by Indemnitee of a written request for
indemnification pursuant
to SECTION 6(b) hereof, no Independent Counsel shall have been
selected and not
objected to, either the Company or Indemnitee may petition a court
of competent
jurisdiction for resolution of any objection which shall have been
made by the
Indemnitee to the Company's selection of Independent Counsel and/or
for the
appointment as Independent Counsel of a person selected by the
court or by such
other person as the court shall designate, and the person with
respect to whom
all objections are so resolved or the person so appointed shall act
as
Independent Counsel under SECTION 6(b) hereof. The Company shall
pay any and all
reasonable fees and expenses of Independent Counsel incurred by
such Independent
Counsel in connection with acting pursuant to SECTION 6(b) hereof,
and the
Company shall pay all reasonable fees and expenses incident to the
procedures of
this SECTION 6(c), regardless of the manner in which such
Independent Counsel
was selected or appointed.
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(d) Except if provided to the contrary by the laws of the
state of California, in making a determination with respect to
entit
