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Exhibit 10.01
INDEMNITY AGREEMENT
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" ).
RECITALS
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.
AGREEMENT
NOW, THEREFORE, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions .
(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 the final disposition of the Proceed
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