This Indemnity
Agreement, dated as of _____________, 20___is made by and between
Glu Mobile Inc., a Delaware corporation (the
“Company” ), and _____________, a
director, officer or key employee of the Company or one of the
Company’s subsidiaries or other service provider who
satisfies the definition of Indemnifiable Person set forth below (
“Indemnitee” ).
A. The
Company is aware that competent and experienced persons are
increasingly reluctant to serve as representatives of corporations
unless they are protected by comprehensive liability insurance and
indemnification, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to
the fact that the exposure frequently bears no relationship to the
compensation of such representatives;
B. The
members of the Board of Directors of the Company (the
“Board” ) have concluded that to retain
and attract talented and experienced individuals to serve as
representatives of the Company and its Subsidiaries and Affiliates
and to encourage such individuals to take the business risks
necessary for the success of the Company and its Subsidiaries and
Affiliates, it is necessary for the Company to contractually
indemnify certain of its representatives and the representatives of
its Subsidiaries and Affiliates, and to assume for itself maximum
liability for Expenses and Other Liabilities in connection with
claims against such representatives in connection with their
service to the Company and its Subsidiaries and
Affiliates;
C. Section 145
of the Delaware General Corporation Law (
“Section 145” ), empowers the
Company to indemnify by agreement its officers, directors,
employees and agents, and persons who serve, at the request of the
Company, as directors, officers, employees or agents of other
corporations, partnerships, joint ventures, trusts or other
enterprises, and expressly provides that the indemnification
provided thereby is not exclusive; and
D. The
Company desires and has requested Indemnitee to serve or continue
to serve as a representative of the Company and/or the Subsidiaries
or Affiliates of the Company free from undue concern about
inappropriate claims for damages arising out of or related to such
services to the Company and/or the Subsidiaries or Affiliates of
the Company.
NOW,
THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
(a)
Affiliate . For purposes of this Agreement,
“Affiliate” of the Company means any
corporation, partnership, limited liability company, joint venture,
trust or other enterprise in respect of which Indemnitee is or was
or will be serving as a director, officer, trustee, manager,
member, partner, employee, agent, attorney, consultant, member of
the entity’s governing body (whether constituted as a board
of directors, board of managers, general partner
or otherwise),
fiduciary, or in any other similar capacity at the request,
election or direction of the Company, and including, but not
limited to, any employee benefit plan of the Company or a
Subsidiary or Affiliate of the Company.
(b)
Expenses . For purposes of this Agreement,
“Expenses” means all direct and indirect
costs of any type or nature whatsoever (including, without
limitation, all attorneys’ fees and related disbursements,
and other out-of-pocket costs), paid or incurred by Indemnitee in
connection with either the investigation, defense or appeal of, or
being a witness in a Proceeding (as defined below), or establishing
or enforcing a right to indemnification under this Agreement,
Section 145 or otherwise; provided, however, that Expenses
shall not include any judgments, fines, ERISA excise taxes or
penalties or amounts paid in settlement of a Proceeding.
(c)
Indemnifiable Event . For purposes of this Agreement,
“Indemnifiable Event” means any event or
occurrence related to Indemnitee’s service for the Company or
any Subsidiary or Affiliate as an Indemnifiable Person (as defined
below), or by reason of anything done or not done, or any act or
omission, by Indemnitee in any such capacity.
(d)
Indemnifiable Person . For the purposes of this Agreement,
“Indemnifiable Person” means any person
who is or was a director, officer, employee, attorney, trustee,
manager, member, partner, consultant, member of an entity’s
governing body (whether constituted as a board of directors, board
of managers, general partner or otherwise) or other agent or
fiduciary of the Company or a Subsidiary or Affiliate of the
Company.
(e)
Independent Counsel . For purposes of this Agreement,
“Independent Counsel” means legal counsel
that has not performed services for the Company or Indemnitee in
the five years preceding the time in question and that would not,
under applicable standards of professional conduct, have a conflict
of interest in representing either the Company or
Indemnitee.
(f)
Other Liabilities . For purposes of this Agreement,
“Other Liabilities” means any and all
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, penalties, ERISA (or other benefit plan related)
excise taxes or penalties, and amounts paid in settlement and all
interest, taxes, assessments and other charges paid or payable in
connection with or in respect of any such judgments, fines,
penalties, ERISA (or other benefit plan related) excise taxes or
penalties, or amounts paid in settlement).
(g)
Proceeding . For the purposes of this Agreement,
“Proceeding” means any threatened,
pending, or completed action, suit or other proceeding, whether
civil, criminal, administrative, investigative, legislative or any
other type whatsoever, preliminary, informal or formal, including
any arbitration or other alternative dispute resolution and
including any appeal of any of the foregoing.
(h)
Subsidiary . For purposes of this Agreement,
“Subsidiary” means any corporation of
which more than 50% of the outstanding voting securities is owned
directly by the Company.
(i)
Change in Control . For purposes of this Agreement,
“Change in Control” means (i) any
“person” (as such term is used in Sections 13(d) and
14(d) of the
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Securities
Exchange Act of 1934, as amended), other than a Subsidiary or a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or Subsidiary, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by
the Company’s then outstanding capital stock, or
(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 stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then still 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 that would result in the outstanding
capital stock of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into capital stock of the surviving entity) at
least 80% of the total voting power represented by the capital
stock 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.
2.
Agreement to Serve . The Indemnitee agrees to serve and/or
continue to serve as an Indemnifiable Person in the capacity or
capacities in which Indemnitee currently serves the Company as an
Indemnifiable Person, and any additional capacity in which
Indemnitee may agree to serve, until such time as
Indemnitee’s service in a particular capacity shall end
according to the terms of an agreement, the Company’s
Certificate of Incorporation or Bylaws, governing law, or
otherwise. Nothing contained in this Agreement is intended to
create any right to continued employment or other form of service
for the Company or a Subsidiary or Affiliate of the Company by
Indemnitee.
3.
Mandatory Indemnification .
(a)
Agreement to Indemnity . In the event Indemnitee is a person
who was or is a party to or witness in or is threatened to be made
a party to or witness or otherwise involved in any Proceeding by
reason of an Indemnifiable Event, the Company shall indemnify
Indemnity from and against any and all Expenses and Other
Liabilities incurred by Indemnitee in connection with (including in
preparation for) such Proceeding to the fullest extent not
prohibited by the provisions of the Delaware General Corporation
Law ( “DGCL” ), as the same may be
amended from time to time (but only to the extent that such
amendment permits the Company to provide broader indemnification
rights than the DGCL permitted prior to the adoption of such
amendment).
(b)
Exception for Amounts Covered by Insurance and Other Sources
. Notwithstanding the foregoing, the Company shall not be obligated
to indemnify Indemnitee for Expenses or Other Liabilities of any
type whatsoever (including, but not limited to judgments, fines,
penalties, ERISA excise taxes or penalties and amounts paid in
settlement) to the extent such have been paid directly to
Indemnitee (or paid directly to a third party on
Indemnitee’s
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behalf) by any
directors and officers insurance, fiduciary liability insurance or
any other type of insurance maintained by the Company or by other
indemnity arrangements with third parties.
4.
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for some or a portion of any Expenses or Other Liabilities but not
entitled, however, to indemnification for the total amount of such
Expenses or Other Liabilities, the Company shall nevertheless
indemnify Indemnitee for such total amount except as to the portion
thereof to which indemnification is prohibited by the provisions of
the DGCL. In any review or Proceeding to determine the extent of
indemnification, the Company shall bear the burden to establish, by
clear and convincing evidence, the lack of a successful resolution
of a particular claim, issue or matter and which amounts sought in
indemnity are allocable to claims, issues or matters which were not
successfully resolved.
5.
Liability Insurance . So long as Indemnitee shall continue
to serve the Company or a Subsidiary or Affiliate of the Company as
an Indemnifiable Person and thereafter so long as Indemnitee shall
be subject to any possible claim or threatened, pending or
completed Proceeding as a result of an Indemnifiable Event, the
Company shall use reasonable efforts to maintain in full force and
effect for the benefit of Indemnitee as an insured
(i) liability insurance issued by one or more reputable
insurers and having the policy amount and deductible deemed
appropriate by the Board and providing in all respects coverage at
least comparable to and in the same amount as that being provided
to the Chairman of the Board, the Chief Executive Officer or Chief
Financial Officer of the Company when such insurance is purchased,
and (ii) any replacement or substitute policies issued by one
or more reputable insurers providing in all respects coverage at
least comparable to and in the same amount as that being provided
to the Chairman of the Board, the Chief Executive Officer or Chief
Financial Officer of the Company when such replacement or
substitute policies are purchasd. The purchase, establishment and
maintenance of any such insurance or other arrangements shall not
in any way limit or affect the rights and obligations of the
Company or of Indemnitee under this Agreement except as expressly
provided herein, and the execution and delivery of this Agreement
by the Company and Indemnitee shall not in any way limit or affect
the rights and obligations of the Company or the other party or
parties thereto under any such insurance or other
arrangement.
6. Mandatory
Advancement of Expenses . If requested by Indemnitee, the
Company shall advance prior to
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