Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) HTML 2.93M
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 433K
Liquidation or Succession
3: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, HTML 75K
Liquidation or Succession
4: EX-2.3 Plan of Acquisition, Reorganization, Arrangement, HTML 301K
Liquidation or Succession
5: EX-2.4 Plan of Acquisition, Reorganization, Arrangement, HTML 62K
Liquidation or Succession
6: EX-3.1 Articles of Incorporation/Organization or Bylaws HTML 58K
7: EX-3.2 Articles of Incorporation/Organization or Bylaws HTML 44K
8: EX-3.3 Articles of Incorporation/Organization or Bylaws HTML 49K
9: EX-3.4 Articles of Incorporation/Organization or Bylaws HTML 210K
10: EX-3.5 Articles of Incorporation/Organization or Bylaws HTML 136K
11: EX-10.1 Material Contract HTML 88K
20: EX-10.10 Material Contract HTML 217K
21: EX-10.11 Material Contract HTML 221K
22: EX-10.12 Material Contract HTML 138K
23: EX-10.13 Material Contract HTML 158K
24: EX-10.14 Material Contract HTML 78K
25: EX-10.15 Material Contract HTML 53K
26: EX-10.16 Material Contract HTML 92K
27: EX-10.17 Material Contract HTML 97K
12: EX-10.2 Material Contract HTML 109K
13: EX-10.3 Material Contract HTML 51K
14: EX-10.4 Material Contract HTML 107K
15: EX-10.5 Material Contract HTML 107K
16: EX-10.6 Material Contract HTML 176K
17: EX-10.7 Material Contract HTML 96K
18: EX-10.8 Material Contract HTML 131K
19: EX-10.9 Material Contract HTML 222K
28: EX-21.1 Subsidiaries List HTML 40K
29: EX-23.1 Consent of Experts or Counsel HTML 41K
30: EX-23.2 Consent of Experts or Counsel HTML 44K
31: EX-23.3 Consent of Experts or Counsel HTML 41K
51: R1 Document and Entity Information HTML 56K
109: R2 Consolidated Balance Sheets (Fy) HTML 129K
150: R3 Consolidated Balance Sheets (Parentheticals) (Fy) HTML 76K
76: R4 Consolidated Statements of Operations (Fy) HTML 121K
53: R5 Consolidated Statement of Changes in Stockholders' HTML 172K
Equity (Deficit) (Fy)
110: R6 Consolidated Statements of Cash Flows (Fy) HTML 169K
151: R7 Condensed Consolidated Balance Sheets (Q2) HTML 152K
74: R8 Condensed Consolidated Balance Sheets (Q2) HTML 77K
(Parenthetical)
56: R9 Condensed Consolidated Statements of Operations HTML 90K
(Q2)
73: R10 Condensed Statements of Changes in Stockholders' HTML 174K
Deficit (Q2)
55: R11 Condensed Consolidated Statements of Cash Flows HTML 178K
(Q2)
108: R12 Nature of Business and Significant Accounting HTML 179K
Policies (Fy)
153: R13 Going Concern (Fy) HTML 62K
72: R14 Discontinued Operations (Fy) HTML 60K
54: R15 Investment in TruPet (Fy) HTML 47K
107: R16 Dividends Payable (Fy) HTML 45K
152: R17 Accounts Payable and Accrued Liabilities (Fy) HTML 53K
75: R18 Related Party Transactions (Fy) HTML 67K
52: R19 Derivative Liability (Fy) HTML 87K
134: R20 Convertible Notes Payable (Fy) HTML 116K
145: R21 Stockholders' Deficit (Fy) HTML 203K
103: R22 Fair Value of Financial Instruments (Fy) HTML 73K
50: R23 Income Taxes (Fy) HTML 70K
133: R24 Subsequent Events (Fy) HTML 100K
144: R25 Nature of Business and Summary of Significant HTML 180K
Accounting Policies (Q2)
102: R26 Acquisition of TruPet LLC and Bona Vida, Inc. (Q2) HTML 80K
49: R27 Inventories (Q2) HTML 51K
132: R28 Property and Equipment (Q2) HTML 52K
146: R29 Operating Leases (Q2) HTML 64K
148: R30 License Intangibles and Royalties (Q2) HTML 53K
104: R31 Line of Credit and Debt (Q2) HTML 116K
57: R32 Warrant Derivative Liability (Q2) HTML 88K
77: R33 Loyalty Program Provision (Q2) HTML 45K
149: R34 Other Liabilities (Q2) HTML 67K
105: R35 Redeemable Preferred Stock (Q2) HTML 58K
58: R36 Stockholders' Deficit (Q2) HTML 203K
78: R37 Related Party Transactions and Material Service HTML 52K
Agreements (Q2)
147: R38 Major Suppliers (Q2) HTML 44K
106: R39 Concentration of Credit Risk (Q2) HTML 45K
141: R40 Net Loss per Share (Q2) HTML 62K
127: R41 Going Concern (Q2) HTML 62K
39: R42 Subsequent Events (Q2) HTML 100K
91: R43 Accounting Policies, by Policy (Policies) HTML 188K
143: R44 Nature of Business and Summary of Significant HTML 227K
Accounting Policies (Q2) (Policies)
129: R45 Nature of Business and Significant Accounting HTML 63K
Policies (Fy) (Tables)
41: R46 Discontinued Operations (Fy) (Tables) HTML 67K
93: R47 Accounts Payable and Accrued Liabilities (Fy) HTML 52K
(Tables)
139: R48 Derivative Liability (Fy) (Tables) HTML 78K
131: R49 Convertible Notes Payable (Fy) (Tables) HTML 108K
120: R50 Stockholders' Deficit (Fy) (Tables) HTML 146K
162: R51 Fair Value of Financial Instruments (Fy) (Tables) HTML 70K
83: R52 Income Taxes (Fy) (Tables) HTML 70K
62: R53 Nature of Business and Summary of Significant HTML 51K
Accounting Policies (Q2) (Tables)
118: R54 Acquisition of TruPet LLC and Bona Vida, Inc. (Q2) HTML 76K
(Tables)
160: R55 Inventories (Q2) (Tables) HTML 53K
81: R56 Property and Equipment (Q2) (Tables) HTML 52K
60: R57 Operating Leases (Q2) (Tables) HTML 60K
117: R58 License Intangibles and Royalties (Q2) (Tables) HTML 49K
164: R59 Warrant Derivative Liability (Q2) (Tables) HTML 65K
99: R60 Other Liabilities (Q2) (Tables) HTML 61K
48: R61 Redeemable Preferred Stock (Q2) (Tables) HTML 55K
125: R62 Stockholders' Deficit (Q2) (Tables) HTML 152K
138: R63 Net Loss per Share (Q2) (Tables) HTML 62K
96: R64 Nature of Business and Significant Accounting HTML 71K
Policies (Fy) (Details)
45: R65 Nature of Business and Significant Accounting HTML 59K
Policies - Antidilutive Securities Excluded from
Computation of Earnings Per Share (Fy) (Details)
122: R66 Going Concern (Fy) (Details) HTML 121K
135: R67 Discontinued Operations (Fy) (Details) HTML 54K
101: R68 Discontinued Operations - After-Tax Loss from HTML 78K
Discontinued Operations (Fy) (Details)
44: R69 Discontinued Operations - Gain on Sale of HTML 59K
Discontinued Operations (Fy) (Details)
65: R70 Investment in TruPet (Fy) (Details) HTML 56K
87: R71 Dividends Payable (Fy) (Details) HTML 71K
154: R72 Accounts Payable and Accrued Liabilities - HTML 54K
Accounts Payable and Accrued Liabilities (Fy)
(Details)
111: R73 Related Party Transactions (Fy) (Details) HTML 76K
68: R74 Derivative Liability (Fy) (Details) HTML 78K
90: R75 Derivative Liability - Fair Value, Derivative HTML 58K
Liability Measured on Recurring Basis,
Unobservable Input Reconciliation (Fy) (Details)
158: R76 Derivative Liability - Fair Value Measurements, HTML 62K
Recurring, Valuation Techniques (Fy) (Details)
115: R77 Convertible Notes Payable (Fy) (Details) HTML 51K
69: R78 Convertible Notes Payable - Convertible Debt (Fy) HTML 77K
(Details)
84: R79 Convertible Notes Payable - Convertible Debt HTML 239K
(Parentheticals) (Fy) (Details)
66: R80 Stockholders' Deficit (Fy) (Details) HTML 367K
88: R81 Stockholders' Deficit - Warrants or Rights Shares HTML 62K
Authorized, by Exercise Price Range (Fy) (Details)
156: R82 Stockholders' Deficit - Stockholders' Equity Note, HTML 59K
Warrants or Rights (Fy) (Details)
113: R83 Stockholders' Deficit - Share-based Compensation, HTML 58K
Shares Authorized under Stock Option Plans (Fy)
(Details)
67: R84 Stockholders' Deficit - Share-based Compensation, HTML 66K
Stock Options, Activity (Fy) (Details)
89: R85 Fair Value of Financial Instruments - Fair Value, HTML 56K
Liabilities Measured on Recurring Basis (Fy)
(Details)
157: R86 Income Taxes (Fy) (Details) HTML 49K
114: R87 Income Taxes - Effective Income Tax Rate HTML 61K
Reconciliation (Fy) (Details)
70: R88 Income Taxes - Deferred Tax Assets and Liabilities HTML 54K
(Fy) (Details)
85: R89 Subsequent Events (Fy) (Details) HTML 254K
98: R90 Nature of Business and Summary of Significant HTML 55K
Accounting Policies, Restricted Cash (Q2)
(Details)
47: R91 Nature of Business and Summary of Significant HTML 50K
Accounting Policies, Property and Equipment (Q2)
(Details)
124: R92 Nature of Business and Summary of Significant HTML 50K
Accounting Policies, Income Taxes (Q2) (Details)
137: R93 Nature of Business and Summary of Significant HTML 53K
Accounting Policies, Revenue (Q2) (Details)
97: R94 Nature of Business and Summary of Significant HTML 49K
Accounting Policies, Advertising, Research and
Development (Q2) (Details)
46: R95 Nature of Business and Summary of Significant HTML 49K
Accounting Policies, Shipping and Handling/Freight
Out (Q2) (Details)
123: R96 Nature of Business and Summary of Significant HTML 44K
Accounting Policies, Segment Information (Q2)
(Details)
136: R97 Nature of Business and Summary of Significant HTML 49K
Accounting Policies, Recently Issued Accounting
Pronouncements (Q2) (Details)
100: R98 Acquisition of TruPet LLC and Bona Vida, Inc. (Q2) HTML 144K
(Details)
43: R99 Inventories (Q2) (Details) HTML 57K
61: R100 Property and Equipment (Q2) (Details) HTML 58K
82: R101 Operating Leases (Q2) (Details) HTML 111K
163: R102 License Intangibles and Royalties, Elvis Presley HTML 76K
Enterprises, LLC (Q2) (Details)
121: R103 License Intangibles and Royalties, Orapup (Q2) HTML 55K
(Details)
59: R104 Line of Credit and Debt (Q2) (Details) HTML 90K
80: R105 Warrant Derivative Liability, Private Placement HTML 77K
(Q2) (Details)
161: R106 Warrant Derivative Liability, Fair Value of HTML 48K
Derivative Liabilities (Q2) (Details)
119: R107 Warrant Derivative Liability, Fair Value HTML 62K
Measurements and Valuation Techniques (Q2)
(Details)
63: R108 Loyalty Program Provision (Q2) (Details) HTML 53K
79: R109 Other Liabilities (Q2) (Details) HTML 76K
92: R110 Redeemable Preferred Stock (Q2) (Details) HTML 124K
40: R111 Stockholders' Deficit (Q2) (Details) HTML 53K
126: R112 Stockholders' Deficit, Preferred Units/Stock (Q2) HTML 81K
(Details)
140: R113 Stockholders' Deficit, Common Stock (Q2) (Details) HTML 170K
94: R114 Stockholders' Deficit, Stock Options (Q2) HTML 92K
(Details)
42: R115 Stockholders' Deficit, Option Grants (Q2) HTML 97K
(Details)
128: R116 Stockholders' Deficit, Significant Terms of HTML 66K
Options Outstanding (Q2) (Details)
142: R117 Stockholders' Deficit, Transactions Involving HTML 62K
Options (Q2) (Details)
95: R118 Stockholders' Deficit, Warrants (Q2) (Details) HTML 67K
38: R119 Related Party Transactions and Material Service HTML 73K
Agreements, Related Party Transactions (Q2)
(Details)
112: R120 Related Party Transactions and Material Service HTML 80K
Agreements, Material Service Agreements (Q2)
(Details)
155: R121 Major Suppliers (Q2) (Details) HTML 52K
86: R122 Concentration of Credit Risk (Q2) (Details) HTML 46K
64: R123 Net Loss per Share (Q2) (Details) HTML 62K
116: R124 Going Concern (Q2) (Details) HTML 50K
159: R125 Subsequent Events (Q2) (Details) HTML 164K
130: XML IDEA XML File -- Filing Summary XML 275K
71: EXCEL IDEA Workbook of Financial Reports XLSX 195K
32: EX-101.INS XBRL Instance -- senz-20191025 XML 3.56M
34: EX-101.CAL XBRL Calculations -- senz-20191025_cal XML 315K
35: EX-101.DEF XBRL Definitions -- senz-20191025_def XML 1.75M
36: EX-101.LAB XBRL Labels -- senz-20191025_lab XML 3.34M
37: EX-101.PRE XBRL Presentations -- senz-20191025_pre XML 2.35M
33: EX-101.SCH XBRL Schema -- senz-20191025 XSD 402K
165: ZIP XBRL Zipped Folder -- 0001140361-19-019098-xbrl Zip 429K
‘EX-10.8’ — Material Contract
This Exhibit is an HTML Document rendered as filed. [ Alternative Formats ]
Exhibit 10.8
INDEMNIFICATION AND ADVANCEMENT AGREEMENT
This Indemnification and Advancement Agreement (“
Agreement”) is made as of [●], 2019, by and between Better Choice Company Inc., a Delaware
corporation (the “
Company”), and [
name of indemnitee],[ a member of the Board of Directors/an officer] of
the Company (“
Indemnitee”). This Agreement supersedes and replaces any and all previous
agreements between
the Company and Indemnitee covering indemnification and advancement.
RECITALS
WHEREAS, the Board of Directors of
the Company (the “
Board”) believes that highly competent persons have become more reluctant to serve as
directors, officers, or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification and advancement of expenses against inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation;
WHEREAS, 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. Although the furnishing of such insurance has been a customary and widespread practice among United States-based
corporations and other business enterprises,
the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors,
officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only
against
the Company or business enterprise itself.
The Company’s
bylaws (as currently in effect and as may be amended from time to time, the “
Bylaws”) require indemnification of the officers and directors of
the Company. Indemnitee may also be
entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “
DGCL”). The
Bylaws and the DGCL 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 board of directors, officers and other persons with respect to indemnification and advancement of expenses;
WHEREAS, the uncertainties relating to such insurance, to indemnification, and to advancement of expenses may increase the difficulty of attracting
and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the
Company and its stockholders and that
the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, 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;
WHEREAS, this Agreement is a supplement to and in furtherance of the
Bylaws and any resolutions adopted pursuant thereto, and is not a substitute
therefor, nor diminishes or abrogates any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee does not regard the protection available under the
Bylaws, DGCL and insurance as adequate in the present circumstances, and may
not be willing to serve or continue to serve as an officer or director without adequate additional protection, and
the Company desires Indemnitee to serve or continue 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 and be advanced expenses.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Services to the
Company. Indemnitee agrees to serve as a [director]/[officer] of the Company. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law).
This Agreement does not create any obligation on the Company to continue Indemnitee in such position and is not an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.
Section 2. Definitions.
As used in this Agreement:
(a) “Agent” means any
person who is authorized by the Company or an Enterprise to act for or represent the interests of the Company or an Enterprise, respectively.
(b) A “Change in Control”
occurs upon the earliest to occur after the date of this Agreement of any of the following events:
i. Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing thirty-five percent (35%) or more
of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of
securities entitled to vote generally in the election of directors;
ii. Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any
new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 2(b)(i), 2(b)(iii) or 2(b)(iv)) whose election by the Board or nomination for election by
the Company’s stockholders was approved by a vote of at least two- thirds 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 at least a majority of the members of the Board;
iii. Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 51% of the combined voting power of the voting securities of
the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
iv. Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
v. Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form)
promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.
vi. For purposes of this Section
2(b), the following terms have the following meanings:
|
1 |
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
|
|
2 |
“ Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii)
any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
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|
3 |
“ Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any
Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity.
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(c) “Corporate Status”
describes the status of a person who is or was acting as a director, officer, employee, fiduciary, or Agent of the Company or an Enterprise.
(d) “Disinterested Director”
means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) “Enterprise” means any
other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity for which Indemnitee is or was serving at the request of the Company as a director, officer, employee, or Agent.
(f) “Expenses” includes all
reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any
federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with
any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond or other appeal bond or its equivalent and, (ii) for purposes of Section 14(d) only,
Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. The parties hereto agree that, for the purposes of any advancement of Expenses
for which Indemnitee has made written demand to the Company in accordance with this Agreement, all Expenses included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable in the good faith judgment of such
counsel will be presumed conclusively to be reasonable. Expenses, however, do not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(g) “Independent Counsel”
means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five (5) years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent Counsel” does not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(h) “Potential Change in
Control” means the occurrence of any of the following events: (i) the Company enters into any written or oral agreement, undertaking or arrangement, the consummation of which would result in the occurrence of a Change in Control; (ii) any
Person or the Company publicly announces an intention to take or consider taking actions which if consummated would constitute a Change in Control; (iii) any Person who becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing 5% or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors increases his beneficial ownership of such securities by 5% or more over the
percentage so owned by such Person on the date hereof; or (iv) the Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control has occurred.
(i) The term
“Proceeding” includes any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which
Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of Indemnitee’s Corporate Status or by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any
action (or failure to act) on Indemnitee’s part while acting pursuant to Indemnitee’s Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement,
or advancement of Expenses can be provided under this Agreement. A Proceeding also includes a situation the Indemnitee believes in good faith may lead to or culminate in the institution of a Proceeding.
Section 3. Indemnity in
Third-Party Proceedings. The Company will indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in
the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection with such Proceeding or any claim, issue or matter therein, 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, in the case of a criminal
Proceeding had no reasonable cause to believe that Indemnitee’s conduct was unlawful.
Section 4. Indemnity in
Proceedings by or in the Right of the Company. The Company will indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, 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. The Company
will not indemnify Indemnitee for Expenses under this Section 4 related to any claim, issue or matter in a Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the
Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification.
Section 5. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by applicable law, the Company will indemnify Indemnitee against all Expenses actually and
reasonably incurred by Indemnitee in connection with any Proceeding the extent that Indemnitee is successful, on the merits or otherwise. 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 will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with or related to each
successfully resolved claim, issue or matter to the fullest extent permitted by law. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice,
will be deemed to be a successful result as to such claim, issue or matter.
Section 6. Indemnification
For Expenses of a Witness. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by applicable law, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with any Proceeding to which Indemnitee is not a party but to which Indemnitee is a witness, deponent, interviewee, or otherwise asked to participate.
Section 7. Partial
Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses but not, however, for the total amount thereof, the Company will indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.
Section 8. Additional
Indemnification. Notwithstanding any limitation in Sections 3, 4, or 5, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law (including but not limited to, the DGCL and any amendments to or replacements of
the DGCL adopted after the date of this Agreement that expand the Company’s ability to indemnify its officers and directors) if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right
of the Company to procure a judgment in its favor).
Section 9. Exclusions.
Notwithstanding any provision in this Agreement, the Company is not obligated under this Agreement to make any indemnification payment to Indemnitee in connection with any Proceeding:
(a) for which payment has actually
been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except to the extent provided in Section 16(b) and except with respect to any excess beyond the amount paid under any insurance policy or other
indemnity provision; or
(b) for (i) an accounting of
profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or
common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case
under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits
arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback
policy adopted by the Board or a committee thereof, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or
(c) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights
to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its
initiation or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.
Section 10. Advances of
Expenses.
(a) The Company will advance, to
the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding (or any part of any Proceeding) not initiated by Indemnitee or any Proceeding (or any part of any Proceeding) initiated by Indemnitee if (i) the
Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to obtain indemnification or advancement of Expenses from the Company or Enterprise, including a proceeding initiated pursuant to Section 14 or (ii) the Board authorized the
Proceeding (or any part of any Proceeding) prior to its initiation. The Company will advance the Expenses within thirty (30) calendar days after the receipt by the Company of a statement or statements requesting such advances from time to time,
whether prior to or after final disposition of any Proceeding.
(b) Advances will be unsecured and
interest free. Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company, thus Indemnitee qualifies for advances upon the
execution of this Agreement and delivery to the Company. No other form of undertaking is required other than the execution of this Agreement. The Company will make advances without regard to Indemnitee’s ability to repay the Expenses and without
regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.
Section 11. Procedure for
Notification of Claim for Indemnification or Advancement.
(a) Indemnitee will notify the
Company in writing of any Proceeding with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. Indemnitee
will include in the written notification to the Company a description of the nature of the Proceeding and the facts underlying the Proceeding and provide 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 following the final disposition of such Proceeding. Indemnitee’s failure to notify the Company will not relieve the Company from any obligation it may have
to Indemnitee under this Agreement, and any delay in so notifying the Company will not constitute a waiver by Indemnitee of any rights under this Agreement. The secretary of the Company will, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested indemnification or advancement.
(b) The Company will be entitled
to participate in the Proceeding at its own expense.
Section 12. Procedure Upon
Application for Indemnification.
(a) Unless a Change of Control has
occurred, the determination of Indemnitee’s entitlement to indemnification will be made:
i. by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board;
ii. by a committee of
Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
iii. if there are no such
Disinterested Directors or, if such Disinterested Directors so direct, by written opinion provided by Independent Counsel selected by the Board; or
iv. if so directed by the Board,
by the stockholders of the Company.
(b) If a Change in Control has
occurred, the determination of Indemnitee’s entitlement to indemnification will be made by written opinion provided by Independent Counsel selected by Indemnitee (unless Indemnitee requests such selection be made by the Board)
(c) The party selecting
Independent Counsel pursuant to subsection (a)(iii) or (b) of this Section 12 will provide written notice of the selection to the other party. The notified party may, within ten (10) calendar days after receiving written notice of the selection of
Independent Counsel, deliver to the selecting party 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 2 of this Agreement, and the objection will set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected will act
as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such
objection is without merit. If, within thirty (30) calendar days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) hereof and the final disposition of the Proceeding, Independent Counsel
has not been selected or, if selected, any objection to has not been resolved, either the Company or Indemnitee may petition the Delaware Court for the appointment as Independent Counsel of a person selected by such court or by such other person as
such court designates. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel will be discharged and relieved of any further responsibility in such capacity (subject to
the applicable standards of professional conduct then prevailing).
(d) Indemnitee will cooperate with
the person, persons or entity making the determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company will advance and pay any Expenses incurred by Indemnitee in so cooperating with the
person, persons or entity making the indemnification determination irrespective of the determination as to Indemnitee’s entitlement to indemnification and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company
promptly will advise Indemnitee in writing of the determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied and providing a copy of any written
opinion provided to the Board by Independent Counsel.
(e) If it is determined that
Indemnitee is entitled to indemnification, the Company will make payment to Indemnitee within ten (10) calendar days after such determination.
Section 13. Presumptions and
Effect of Certain Proceedings.
(a) In making a determination with
respect to entitlement to indemnification hereunder, the person or persons or entity making such determination will, to the fullest extent not prohibited by law, presume Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company will, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption. Neither the failure of the
Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, will be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct.
(b) If the determination of the
Indemnitee’s entitlement to indemnification has not made pursuant to Section 12 within sixty (60) calendar days after the latter of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 11(a) and (ii) the final
disposition of the Proceeding for which Indemnitee requested Indemnification (the “Determination Period”), the requisite determination of entitlement to indemnification will, to the fullest extent not prohibited by law, be deemed to have been made
and Indemnitee will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under applicable law. The Determination Period may be extended for a reasonable time, not to exceed an additional thirty (30) calendar days, if the person, persons or entity
making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, the Determination
Period may be extended an additional fifteen (15) calendar days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a)(iv) of this Agreement.
(c) The termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, will not (except as otherwise expressly provided in this Agreement) of itself adversely affect
the right of Indemnitee to indemnification or 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 Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
(d) For purposes of any
determination of good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information
supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or on information or records
given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an
Enterprise. Further, Indemnitee will be deemed to have acted in a manner “not opposed to the best interests of the Company,” as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in
the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 13(d) is not exclusive and does not limit in any way the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions,
or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise may not be imputed to Indemnitee for purposes of determining Indemnitee’s right to indemnification under this Agreement.
Section 14. Remedies of
Indemnitee.
(a) Indemnitee may commence
litigation against the Company in the Delaware Court of Chancery to obtain indemnification or advancement of Expenses provided by this Agreement in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement, (ii) the Company does not advance Expenses pursuant to Section 10 of this Agreement, (iii) the determination of entitlement to indemnification is not made pursuant to Section 12 of this
Agreement within the Determination Period, (iv) the Company does not indemnify Indemnitee pursuant to Section 5 or 6 or the second to last sentence of Section 12(d) of this Agreement within ten (10) calendar days after receipt by the Company of a
written request therefor, (v) the Company does not indemnify Indemnitee pursuant to Section 3, 4, 7, or 8 of this Agreement within ten (10) calendar days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in
the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee
the benefits provided or intended to be provided to the Indemnitee hereunder. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. Indemnitee must commence such Proceeding seeking an adjudication or an award in arbitration within 180 calendar days following the date on which Indemnitee first has the right to commence such Proceeding
pursuant to this Section 14(a); provided, however, that the foregoing clause does not apply in respect of a Proceeding brought by Indemnitee to enforce Indemnitee’s rights under Section 5 of this Agreement. The Company will not
oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) If a determination is made
pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 will be conducted in all respects as a de
novo trial, or arbitration, on the merits and Indemnitee may not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14 the Company will have the burden of
proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be and will not introduce evidence of the determination made pursuant to Section 12 of this Agreement.
(c) If a determination is made
pursuant to Section 12 of this Agreement that Indemnitee is entitled to indemnification, the Company will be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable
law.
(d) The Company is, to the fullest
extent not prohibited by law, precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and will stipulate
in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.
(e) It is the intent of the
Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or
otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company, to the fullest extent permitted by law, will (within ten (10) calendar days after receipt
by the Company of a written request therefor) advance to Indemnitee such Expenses which are incurred by Indemnitee in connection with any action concerning this Agreement, Indemnitee’s right to indemnification or advancement of Expenses from the
Company, or concerning any directors’ and officers’ liability insurance policies maintained by the Company. and will indemnify Indemnitee against any and all such Expenses unless the court determines that each of the Indemnitee’s claims in such
Proceeding were made in bad faith or were frivolous or are prohibited by law.
Section 15. Establishment of
Trust.
(a) In the event of a Potential
Change in Control or a Change in Control, the Company will, upon written request by Indemnitee, create a trust for the benefit of Indemnitee (the “Trust”) and from time to time upon written request of Indemnitee will fund such Trust in an
amount sufficient to satisfy the reasonably anticipated indemnification and advancement obligations of the Company to the Indemnitee in connection with any Proceeding for which Indemnitee has demanded indemnification and/or advancement prior to the
Potential Change in Control or Change in Control (the “Funding Obligation”). The trustee of the Trust (the “Trustee”) will be a bank or trust company or other individual or entity chosen by the Indemnitee and reasonably acceptable to
the Company. Nothing in this Section 15 relieves the Company of any of its obligations under this Agreement.
(b) The amount or amounts to be
deposited in the Trust pursuant to the Funding Obligation will be determined by mutual agreement of the Indemnitee and the Company or, if the Company and the Indemnitee are unable to reach such an agreement, by Independent Counsel selected in
accordance with Section 12(b) of this Agreement. The terms of the Trust will provide that, except upon the consent of both the Indemnitee and the Company, upon a Change in Control: (i) the Trust may not be revoked, or the principal thereof invaded,
without the written consent of the Indemnitee; (ii) the Trustee will advance, to the fullest extent permitted by applicable law, within two (2) business days of a request by the Indemnitee; (iii) the Company will continue to fund the Trust in
accordance with the Funding Obligation; (iv) the Trustee will promptly pay to the Indemnitee all amounts for which the Indemnitee is entitled to indemnification pursuant to this Agreement or otherwise; and (v) all unexpended funds in such Trust
revert to the Company upon mutual agreement by the Indemnitee and the Company or, if the Indemnitee and the Company are unable to reach such an agreement, by Independent Counsel selected in accordance with Section 12(b) of this Agreement, that the
Indemnitee has been fully indemnified under the terms of this Agreement. New York law (without regard to its conflicts of laws rules) governs the Trust and the Trustee will consent to the exclusive jurisdiction of Delaware Court of Chancery, in
accordance with Section 25 of this Agreement.
Section 16. Non-exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The indemnification and
advancement of Expenses provided by this Agreement are not exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. The indemnification and advancement of Expenses provided by this Agreement may not be limited or restricted by any amendment, alteration or repeal of this Agreement in any way with respect to any action taken
or omitted by Indemnitee in Indemnitee’s Corporate Status occurring prior to any amendment, alteration or repeal of this Agreement. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently under the Bylaws or this Agreement, it is the intent of the parties hereto that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy is cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other right or remedy.
(b) The Company hereby
acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses and/or insurance provided by one or more Persons with whom or which Indemnitee may be associated.
1) the
Company is the indemnitor of first resort with respect to any request for indemnification or advancement of Expenses made pursuant to this Agreement concerning any Proceeding arising from or related to Indemnitee’s Corporate Status with the
Company;
2) the
Company is primarily liable for all indemnification and indemnification or advancement of Expenses obligations for any Proceeding arising from or related to Indemnitee’s Corporate Status, whether created by law, organizational or constituent
documents, contract (including this Agreement) or otherwise;
3) any
obligation of any other Persons with whom or which Indemnitee may be associated to indemnify Indemnitee and/or advance Expenses to Indemnitee in respect of any proceeding are secondary to the obligations of the Company’s obligations;
4) the
Company will indemnify Indemnitee and advance Expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other Person with whom or which Indemnitee may be associated or
insurer of any such Person; and
ii. the Company irrevocably
waives, relinquishes and releases any other Person with whom or which Indemnitee may be associated from any claim of contribution, subrogation, reimbursement, exoneration or indemnification, or any other recovery of any kind in respect of amounts
paid by the Company to Indemnitee pursuant to this Agreement.
iii. In the event any other
Person with whom or which Indemnitee may be associated or their insurers advances or extinguishes any liability or loss for Indemnitee, the payor has a right of subrogation against the Company or its insurers for all amounts so paid which would
otherwise be payable by the Company or its insurers under this Agreement. In no event will payment by any other Person with whom or which Indemnitee may be associated (or their insurers affect the obligations of the Company hereunder or shift
primary liability for the Company’s obligation to indemnify or advance of Expenses to any other Person with whom or which Indemnitee may be associated.
iv. Any indemnification or
advancement of Expenses provided by any other Person with whom or which Indemnitee may be associated is specifically in excess over the Company’s obligation to indemnify and advance Expenses or any valid and collectible insurance (including but not
limited to any malpractice insurance or professional errors and omissions insurance) provided by the Company.
(c) To the extent that the Company
maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents of the Enterprise, the Company will obtain a policy or policies covering Indemnitee to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy or policies, including coverage in the event the Company does not or cannot, for any reason, indemnify or advance Expenses to Indemnitee as required by this Agreement.
If, at the time of the receipt of a notice of a claim pursuant to this Agreement, the Company has director and officer liability insurance in effect, the Company will give prompt notice of such claim or of the commencement of a Proceeding, as the
case may be, to the insurers in accordance with the procedures set forth in the respective policies. The Company will thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable
as a result of such Proceeding in accordance with the terms of such policies. Indemnitee agrees to assist the Company efforts to cause the insurers to pay such amounts and will comply with the terms of such policies, including selection of approved
panel counsel, if required.
(d) The Company’s obligation to
indemnify or advance Expenses hereunder to Indemnitee for any Proceeding concerning Indemnitee’s Corporate Status with an Enterprise will be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from
such Enterprise. The Company and Indemnitee intend that any such Enterprise (and its insurers) be the indemnitor of first resort with respect to indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s
Corporate Status with such Enterprise. The Company’s obligation to indemnify and advance Expenses to Indemnitee is secondary to the obligations the Enterprise or its insurers owe to Indemnitee. Indemnitee agrees to take all reasonably necessary and
desirable action to obtain from an Enterprise indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise.
(e) In the event of any payment
made by the Company under this Agreement, the Company will be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee from any Enterprise or insurance carrier. Indemnitee will execute all papers required and take all
action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
Section 17. Duration of
Agreement. This Agreement continues until and terminates upon the later of: (a) ten (10) years after the date that Indemnitee ceases to serve as a [director]/[officer] of the Company or (b) one (1) year after the final termination of any
Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto. The
indemnification and advancement of Expenses rights provided by or granted pursuant to this Agreement are binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other
Enterprise, and inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
Section 18. Severability.
If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation,
each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will not in any way be affected or impaired thereby and remain
enforceable to the fullest extent permitted by law; (b) such provision or provisions will be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal
or unenforceable) will be construed so as to give effect to the intent manifested thereby.
Section 19. Interpretation.
Any ambiguity in the terms of this Agreement will be resolved in favor of Indemnitee and in a manner to provide the maximum indemnification and advancement of Expenses permitted by law. The Company and Indemnitee intend that this Agreement provide
to the fullest extent permitted by law for indemnification in excess of that expressly provided, without limitation, by the Certificate of Incorporation, the Bylaws, vote of the Company stockholders or disinterested directors, or applicable law.
Section 20. Enforcement.
(a) The Company expressly confirms
and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving or continuing to serve as a director or officer of the Company.
(b) This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided,
however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the Bylaws and applicable law, and is not a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 21. Modification and
Waiver. No supplement, modification or amendment of this Agreement is binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement will be deemed or constitutes a waiver of any other
provisions of this Agreement nor will any waiver constitute a continuing waiver.
Section 22. Notice by
Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to
indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company does not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.
Section 23. Notices. All
notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been duly given if (a) delivered by hand to the other party, (b) sent by reputable overnight courier to the other party or (c)
sent by facsimile transmission or electronic mail, with receipt of oral confirmation that such communication has been received:
(a) If to Indemnitee, at the
address indicated on the signature page of this Agreement, or such other address as Indemnitee provides to the Company.
[●]
or to any other address as may have been furnished to Indemnitee by
the Company.
Section 24. Contribution.
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, will 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 this 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).
Section 25. Applicable Law
and Consent to Jurisdiction. This Agreement and the legal relations among the parties are governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or Proceeding arising out of or in connection with this
Agreement may be brought only in the Delaware Court of Chancery and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware
Court for purposes of any action or Proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or Proceeding in the Delaware Court, and (iv) waive, and agree not to plead or
to make, any claim that any such action or Proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
Section 26. Identical
Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed to be an original but all of which together constitutes one and the same Agreement. Only one such counterpart signed by
the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
Section 27. Headings. The
headings of this Agreement are inserted for convenience only and do not constitute part of this Agreement or affect the construction thereof.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.
BETTER CHOICE COMPANY INC.
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INDEMNITEE
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By:_______________________________
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By:_______________________________
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Name:_____________________________
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Name:_____________________________
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Title:______________________________
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Address:______________________________
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