{"id":40797,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-com21-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-com21-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-com21-inc.html","title":{"rendered":"Indemnification Agreement &#8211; Com21 Inc."},"content":{"rendered":"<pre>\n                                  COM21, INC.\n\n                           INDEMNIFICATION AGREEMENT\n\n\n\n         THIS AGREEMENT is made and entered into this 3 day of 2, 4 by and\nbetween Com21, Inc., a Delaware corporation (the 'Company'), and 1 \n('Indemnitee').\n\n                                   RECITALS:\n\n         A.      The Company and Indemnitee recognize the continued difficulty\nin obtaining liability insurance for corporate directors, officers, employees,\ncontrolling persons, agents and fiduciaries, the significant increases in the\ncost of such insurance and the general reductions in the coverage of such\ninsurance.\n\n         B.      The Company and Indemnitee further recognize the substantial\nincrease in corporate litigation in general, subjecting directors, officers,\nemployees, controlling persons, agents and fiduciaries to expensive litigation\nrisks at the same time as the availability and coverage of liability insurance\nhas been severely limited.\n\n         C.      The stockholders of the Company have adopted Bylaws (the\n'Bylaws') providing for the indemnification of the officers, directors, agents\nand employees of the Company to the maximum extent authorized by Section 145 of\nthe Delaware Corporations Code, as amended ('Code').\n\n         D.      Indemnitee does not regard the current protection available\nfor the Company's directors, officers, employees, controlling persons, agents\nand fiduciaries as adequate under the present circumstances, and Indemnitee and\nother directors, officers, employees, controlling persons, agents and\nfiduciaries of the Company may not be willing to serve or continue to serve in\nsuch capacities without additional protection.\n\n         E.      The Bylaws and the Code, by their non-exclusive nature, permit\ncontracts between the Company and the members of its Board of Directors with\nrespect to indemnification of such directors.\n\n         F.      The Company (i) desires to attract and retain the involvement\nof highly qualified individuals, such as Indemnitee, to serve the Company and,\nin part, in order to induce Indemnitee to be involved with the Company and (ii)\nwishes to provide for the indemnification and advancing of expenses to\nIndemnitee to the maximum extent permitted by law.\n\n         G.      In view of the considerations set forth above, the Company\ndesires that Indemnitee be indemnified by the Company as set forth herein.\n\n\n\n\n\n\n                 NOW, THEREFORE, the Company and Indemnitee hereby agree as\nfollows:\n\n                 1.       Indemnification of Indemnitee.\n\n                          The Company hereby agrees to indemnify Indemnitee to\nthe fullest extent permitted by law, even if such indemnification is not\nspecifically authorized by the other provisions of this Agreement, the\nCompany's Certificate of Incorporation (the 'Certificate'), the Company's\nBylaws or by statute. In the event of any change after the date of this\nAgreement in any applicable law, statute or rule which expands the right of a\nDelaware corporation to indemnify a member of its Board of Directors or an\nofficer, employee, controlling person, agent or fiduciary, it is the intent of\nthe parties hereto that Indemnitee shall enjoy by this Agreement the greater\nbenefits afforded by such change. In the event of any change in any applicable\nlaw, statute or rule which narrows the right of a Delaware corporation to\nindemnify a member of its Board of Directors or an officer, employee, agent or\nfiduciary, such change, to the extent not otherwise required by such law,\nstatute or rule to be applied to this Agreement, shall have no effect on this\nAgreement or the parties' rights and obligations hereunder except as set forth\nin Section 10(a) hereof.\n\n                 2.       Additional Indemnity.  The Company hereby agrees to\nhold harmless and indemnify the Indemnitee:\n\n                          a. against any and all expenses incurred by\n        Indemnitee, as set forth in Section 3(a) below; and\n\n                          b. otherwise to the fullest extent not prohibited by\n        the Certificate, the Bylaws or the Code.\n\n                 3.       Indemnification Rights.\n\n                          a.      Indemnification of Expenses.  The Company\nshall indemnify and hold harmless Indemnitee, together with Indemnitee's\npartners, affiliates, employees, agents and spouse and each person who controls\nany of them or who may be liable within the meaning of Section 15 of the\nSecurities Act of 1933, as amended (the 'Securities Act'), or Section 20 of the\nSecurities Exchange Act of 1934, as amended (the 'Exchange Act'), to the\nfullest extent permitted by law if Indemnitee was or is or becomes a party to\nor witness or other participant in, or is threatened to be made a party to or\nwitness or other participant in, any threatened, pending or completed action,\nsuit, proceeding or alternative dispute resolution mechanism, or any hearing,\ninquiry or investigation that Indemnitee and the Company believe might lead to\nthe institution of any such action, suit, proceeding or alternative dispute\nresolution mechanism, whether civil, criminal, administrative, investigative or\nother (hereinafter a 'Claim') against any and all expenses (including\nattorneys' fees and all other costs, expenses and obligations incurred in\nconnection with investigating, defending, being a witness in or participating\nin (including on appeal), or preparing to defend, be a witness in or\nparticipate in, any such action, suit, proceeding, alternative dispute\nresolution mechanism,\n\n\n\n\n\n                                       2.\n\n\nhearing, inquiry or investigation, judgments, fines, penalties and amounts paid\nin settlement (if such settlement is approved in advance by the Company, which\napproval shall not be unreasonably withheld) of such Claim and any federal,\nstate, local or foreign taxes imposed on Indemnitee as a result of the actual\nor deemed receipt of any payments under this Agreement (collectively,\nhereinafter 'Expenses'), including all interest, assessments and other charges\npaid or payable in connection with or in respect of such Expenses, incurred by\nIndemnitee by reason of (or arising in part out of) any event or occurrence\nrelated to the fact that Indemnitee is or was a director, officer, employee,\ncontrolling person, agent or fiduciary of the Company, or any subsidiary of the\nCompany, or is or was serving at the request of the Company as a director,\nofficer, employee, controlling person, agent or fiduciary of another\ncorporation, partnership, joint venture, trust or other enterprise, or by\nreason of any action or inaction on the part of Indemnitee while serving in\nsuch capacity including, without limitation, any and all losses, claims,\ndamages, expenses and liabilities, joint or several (including any\ninvestigation, legal and other expenses incurred in connection with, and any\namount paid in settlement of, any action, suit, proceeding or any claim\nasserted) under the Securities Act, the Exchange Act or other federal or state\nstatutory law or regulation, at common law or otherwise, which relate directly\nor indirectly to the registration, purchase, sale or ownership of any\nsecurities of the Company or to any fiduciary obligation owed with respect\nthereto (hereinafter an 'Indemnification Event').  Such payment of Expenses\nshall be made by the Company as soon as practicable but in any event no later\nthan twenty-five (25) days after written demand by Indemnitee therefor is\npresented to the Company.\n\n                          b.      Reviewing Party.  Notwithstanding the\nforegoing, (i) the obligations of the Company under Section 2 shall be subject\nto the condition that the Reviewing Party (as described in Section 12(e)\nhereof) shall not have determined (in a written opinion, in any case in which\nthe Independent Legal Counsel referred to in Section 3(c) hereof is involved)\nthat Indemnitee would not be permitted to be indemnified under applicable law,\nand (ii) and Indemnitee acknowledges and agrees that the obligation of the\nCompany to make an advance payment of Expenses to Indemnitee pursuant to\nSection 4(a) (an 'Expense Advance') shall be subject to the condition that, if,\nwhen and to the extent that the Reviewing Party determines that Indemnitee\nwould not be permitted to be so indemnified under applicable law, the Company\nshall be entitled to be reimbursed by Indemnitee (who hereby agrees to\nreimburse the Company) for all such amounts theretofore paid; provided,\nhowever, that if Indemnitee has commenced or thereafter commences legal\nproceedings in a court of competent jurisdiction to secure a determination that\nIndemnitee should be indemnified under applicable law, any determination made\nby the Reviewing Party that Indemnitee would not be permitted to be indemnified\nunder applicable law shall not be binding and Indemnitee shall not be required\nto reimburse the Company for any Expense Advance until a final judicial\ndetermination is made with respect thereto (as to which all rights of appeal\ntherefrom have been exhausted or lapsed).  Indemnitee's obligation to reimburse\nthe Company for any Expense Advance shall be unsecured and no interest shall be\ncharged thereon.  If there has not been a Change in Control (as defined in\nSection 12(c) hereof), the Reviewing Party shall be selected by the Board of\nDirectors, and if there has been such a Change in Control (other than a Change\nin Control which has been approved by a majority of the Company's Board of\n\n\n\n\n\n                                       3.\n\n\nDirectors who were directors immediately prior to such Change in Control), the\nReviewing Party shall be the Independent Legal Counsel referred to in Section\n3(e) hereof.  If there has been no determination by the Reviewing Party or if\nthe Reviewing Party determines that Indemnitee substantively would not be\npermitted to be indemnified in whole or in part under applicable law,\nIndemnitee shall have the right to commence litigation seeking an initial\ndetermination by the court or challenging any such determination by the\nReviewing Party or any aspect thereof, including the legal or factual bases\ntherefor, and the Company hereby consents to service of process and to appear\nin any such proceeding.  Any determination by the Reviewing Party otherwise\nshall be conclusive and binding on the Company and Indemnitee.\n\n                          c.      Contribution.  If the indemnification\nprovided for in Section 3(a) above for any reason is held by a court of\ncompetent jurisdiction to be unavailable to an Indemnitee in respect of any\nlosses, claims, damages, expenses or liabilities referred to therein, then the\nCompany, in lieu of indemnifying Indemnitee thereunder, shall contribute to the\namount paid or payable by Indemnitee as a result of such losses, claims,\ndamages, expenses or liabilities (i) in such proportion as is appropriate to\nreflect the relative benefits received by the Company and Indemnitee, or (ii)\nif the allocation provided by clause (i) above is not permitted by applicable\nlaw, in such proportion as is appropriate to reflect not only the relative\nbenefits referred to in clause (i) above but also the relative fault of the\nCompany and Indemnitee in connection with the action or inaction which resulted\nin such losses, claims, damages, expenses or liabilities, as well as any other\nrelevant equitable considerations.  In connection with the registration of the\nCompany's securities, the relative benefits received by the Company and\nIndemnitee shall be deemed to be in the same respective proportions that the\nnet proceeds from the offering (before deducting expenses) received by the\nCompany and the Indemnitee, in each case as set forth in the table on the cover\npage of the applicable prospectus, bear to the aggregate public offering price\nof the securities so offered.  The relative fault of the Company and Indemnitee\nshall be determined by reference to, among other things, whether the untrue or\nalleged untrue statement of a material fact or the omission or alleged omission\nto state a material fact relates to information supplied by the Company or\nIndemnitee and the parties' relative intent, knowledge, access to information\nand opportunity to correct or prevent such statement or omission.\n\n                 The Company and Indemnitee agree that it would not be just and\nequitable if contribution pursuant to this Section 3(c) were determined by pro\nrata or per capita allocation or by any other method of allocation which does\nnot take account of the equitable considerations referred to in the immediately\npreceding paragraph.  In connection with the registration of the Company's\nsecurities, in no event shall an Indemnitee be required to contribute any\namount under this Section 3(c) in excess of the lesser of (i) that proportion\nof the total of such losses, claims, damages or liabilities indemnified against\nequal to the proportion of the total securities sold under such registration\nstatement which is being sold by Indemnitee or (ii) the proceeds received by\nIndemnitee from its sale of securities under such registration statement.  No\nperson found guilty of fraudulent misrepresentation (within the meaning of\nSection 11(f) of the Securities Act) shall be entitled to contribution from any\n\n\n\n\n\n                                       4.\n\n\nperson who was not found guilty of such fraudulent misrepresentation.\n\n                          d.      Survival Regardless of Investigation.  The\nindemnification and contribution provided for herein will remain in full force\nand effect regardless of any investigation made by or on behalf of Indemnitee\nor any officer, director, employee, agent or controlling person of Indemnitee.\n\n                          e.      Change in Control.  After the date hereof,\nthe Company agrees that if there is a Change in Control of the Company (other\nthan a Change in Control which has been approved by a majority of the Company's\nBoard of Directors who were directors immediately prior to such Change in\nControl) then, with respect to all matters thereafter arising concerning the\nrights of Indemnitee to payments of Expenses under this Agreement or any other\nagreement or under the Company's Certificate or Bylaws as now or hereafter in\neffect, Independent Legal Counsel (as defined in Section 12(d) hereof) shall be\nselected by Indemnitee and approved by the Company (which approval shall not be\nunreasonably withheld).  Such counsel, among other things, shall render its\nwritten opinion to the Company and Indemnitee as to whether and to what extent\nIndemnitee would be permitted to be indemnified under applicable law.  The\nCompany agrees to abide by such opinion and to pay the reasonable fees of the\nIndependent Legal Counsel referred to above and to fully indemnify such counsel\nagainst any and all reasonable expenses (including attorneys' fees), claims,\nliabilities and damages arising out of or relating to this Agreement or its\nengagement pursuant hereto.\n\n                          f.      Mandatory Payment of Expenses.\nNotwithstanding any other provision of this Agreement, to the extent that\nIndemnitee has been successful on the merits or otherwise, including, without\nlimitation, the dismissal of an action without prejudice, in the defense of any\naction, suit, proceeding, inquiry or investigation referred to in Section 3(a)\nhereof or in the defense of any claim, issue or matter therein, Indemnitee\nshall be indemnified against all Expenses incurred by Indemnitee in connection\nherewith.\n\n                 4.       Expenses; Indemnification Procedure.\n\n                          a.      Advancement of Expenses.  The Company shall\nadvance all Expenses incurred by Indemnitee.  The advances to be made hereunder\nshall be paid by the Company to Indemnitee as soon as practicable but in any\nevent no later than ten (10) days after written demand by Indemnitee therefor\nto the Company.\n\n                          b.      Notice\/Cooperation by Indemnitee.  Indemnitee\nshall give the Company notice in writing as soon as practicable of any Claim\nmade against Indemnitee for which indemnification will or could be sought under\nthis Agreement. Notice to the Company shall be directed to the Chief Executive\nOfficer of the Company at the address shown on the signature page of this\nAgreement (or such other address as the Company shall designate in writing to\nIndemnitee).\n\n\n\n\n\n                                       5.\n\n\n                          c.      No Presumptions; Burden of Proof.  For\npurposes of this Agreement, the termination of any Claim by judgment, order,\nsettlement (whether with or without court approval) or conviction, or upon a\nplea of nolo contendere, or its equivalent, shall not create a presumption that\nIndemnitee did not meet any particular standard of conduct or have any\nparticular belief or that a court has determined that indemnification is not\npermitted by applicable law.  In addition, neither the failure of the Reviewing\nParty to have made a determination as to whether Indemnitee has met any\nparticular standard of conduct or had any particular belief, nor an actual\ndetermination by the Reviewing Party that Indemnitee has not met such standard\nof conduct or did not have such belief, prior to the commencement of legal\nproceedings by Indemnitee to secure a judicial determination that Indemnitee\nshould be indemnified under applicable law, shall be a defense to Indemnitee's\nclaim or create a presumption that Indemnitee has not met any particular\nstandard of conduct or did not have any particular belief. In connection with\nany determination by the Reviewing Party or otherwise as to whether Indemnitee\nis entitled to be indemnified hereunder, the burden of proof shall be on the\nCompany to establish that Indemnitee is not so entitled.\n\n                          d.      Notice to Insurers.  If, at the time of the\nreceipt by the Company of a notice of a Claim pursuant to Section 4(b) hereof,\nthe Company has liability insurance in effect which may cover such Claim, the\nCompany shall give prompt notice of the commencement of such Claim to the\ninsurers in accordance with the procedures set forth in each of the policies.\nThe Company shall thereafter take all necessary or desirable action to cause\nsuch insurers to pay, on behalf of Indemnitee, all amounts payable as a result\nof such action, suit, proceeding, inquiry or investigation in accordance with\nthe terms of such policies.\n\n                          e.      Selection of Counsel.  In the event the\nCompany shall be obligated hereunder to pay the Expenses of any Claim, the\nCompany shall be entitled to assume the defense of such Claim, with counsel\napproved by the Indemnitee, which approval shall not be unreasonably withheld,\nupon the delivery to Indemnitee of written notice of its election to do so.\nAfter delivery of such notice, approval of such counsel by Indemnitee and the\nretention of such counsel by the Company, the Company will not be liable to\nIndemnitee under this Agreement for any fees of counsel subsequently incurred\nby Indemnitee with respect to the same Claim; provided that, (i) Indemnitee\nshall have the right to employ Indemnitee's counsel in any such Claim at\nIndemnitee's expense and (ii) if (A) the employment of counsel by Indemnitee\nhas been previously authorized by the Company, (B) Indemnitee shall have\nreasonably concluded that there is a conflict of interest between the Company\nand Indemnitee in the conduct of any such defense, or (C) the Company shall not\ncontinue to retain such counsel to defend such Claim, then the fees and\nexpenses of Indemnitee's counsel shall be at the expense of the Company.\n\n                 5.       Nonexclusivity.\n\n                          The indemnification provided by this Agreement shall\nbe in addition to any rights to which Indemnitee may be entitled under the\nCompany's Certificate, its Bylaws, any agreement, any vote of stockholders or\ndisinterested directors, the General Corporation\n\n\n\n\n\n                                       6.\n\n\nLaw of the State of Delaware, or otherwise. The indemnification provided under\nthis Agreement shall continue as to Indemnitee for any action Indemnitee took\nor did not take while serving in an indemnified capacity even though Indemnitee\nmay have ceased to serve in such capacity.\n\n                 6.       No Duplication of Payments.\n\n                          The Company shall not be liable under this Agreement\nto make any payment in connection with any Claim made against any Indemnitee to\nthe extent Indemnitee has otherwise actually received payment (under any\ninsurance policy, Certificate of Incorporation, Bylaw or otherwise) of the\namounts otherwise indemnifiable hereunder.\n\n                 7.       Partial Indemnification.\n\n                          If any Indemnitee is entitled under any provision of\nthis Agreement to indemnification by the Company for any portion of Expenses\nincurred in connection with any Claim, but not, however, for all of the total\namount thereof, the Company shall nevertheless indemnify Indemnitee for the\nportion of such Expenses to which Indemnitee is entitled.\n\n                 8.       Mutual Acknowledgement.\n\n                          The Company and Indemnitee acknowledge that in\ncertain instances, Federal law or applicable public policy may prohibit the\nCompany from indemnifying its directors, officers, employees, controlling\npersons, agents or fiduciaries under this Agreement or otherwise.  Each\nIndemnitee understands and acknowledges that the Company has undertaken or may\nbe required in the future to undertake with the Securities and Exchange\nCommission to submit the question of indemnification to a court in certain\ncircumstances for a determination of the Company's rights under public policy\nto indemnify Indemnitee.\n\n                 9.       Liability Insurance.\n\n                          To the extent the Company maintains liability\ninsurance applicable to directors, officers, employees, control persons, agents\nor fiduciaries, each such Indemnitee shall be covered by such policies in such\na manner as to provide Indemnitee the same rights and benefits as are accorded\nto the most favorably insured of the Company's directors, if Indemnitee is a\ndirector, or of the Company's officers, if Indemnitee is not a director of the\nCompany but is an officer; or of the Company's key employees, controlling\npersons, agents or fiduciaries, if Indemnitee is not an officer or director but\nis a key employee, agent, control person, or fiduciary.\n\n                 10.      Exceptions.\n\n                          Any other provision herein to the contrary\nnotwithstanding, the Company shall not be obligated pursuant to the terms of\nthis Agreement:\n\n\n\n\n\n                                       7.\n\n\n                          a.      Claims Initiated by Indemnitee.  To indemnify\nor advance expenses to any Indemnitee with respect to Claims initiated or\nbrought voluntarily by Indemnitee and not by way of defense, except (i) with\nrespect to actions or proceedings to establish or enforce a right to indemnify\nunder this Agreement or any other agreement or insurance policy or under the\nCompany's Certificate of Incorporation or Bylaws now or hereafter in effect\nrelating to Claims for Indemnifiable Events, (ii) in specific cases if the\nBoard of Directors has approved the initiation or bringing of such Claim, or\n(iii) as otherwise required under Section 145 of the Delaware General\nCorporation Law, regardless of whether Indemnitee ultimately is determined to\nbe entitled to such indemnification, advance expense payment or insurance\nrecovery, as the case may be; or\n\n                          b.      Claims Under Section 16(b).  To indemnify any\nIndemnitee for expenses and the payment of profits arising from the purchase\nand sale by Indemnitee of securities in violation of Section 16(b) of the\nExchange Act or any similar successor statute; or\n\n                          c.      Claims Excluded Under Section 145 of the\nDelaware General Corporation Law.  To indemnify any Indemnitee if (i) he did\nnot act in good faith or in a manner reasonably believed by such Indemnitee to\nbe in or not opposed to the best interests of the Company, or (ii) with respect\nto any criminal action or proceeding, Indemnitee had reasonable cause to\nbelieve his conduct was unlawful, or (iii) Indemnitee shall have been adjudged\nto be liable to the Company unless and only to the extent the court in which\nsuch action was brought shall permit indemnification as provided in Section\n145(b) of the Delaware General Corporation Law.\n\n                 11.      Period of Limitations.\n\n                          No legal action shall be brought and no cause of\naction shall be asserted by or in the right of the Company against any\nIndemnitee, any Indemnitee's estate, spouse, heirs, executors or personal or\nlegal representatives after the expiration of five years from the date of\naccrual of such cause of action, and any claim or cause of action of the\nCompany shall be extinguished and deemed released unless asserted by the timely\nfiling of a legal action within such five-year period; provided, however, that\nif any shorter period of limitations is otherwise applicable to any such cause\nof action, such shorter period shall govern.\n\n                 12.      Construction of Certain Phrases.\n\n                          a.      For purposes of this Agreement, references to\nthe 'Company' shall include, in addition to the resulting corporation, any\nconstituent corporation (including any constituent of a constituent) absorbed\nin a consolidation or merger which, if its separate existence had continued,\nwould have had power and authority to indemnify its directors, officers,\nemployees, agents or fiduciaries, so that if Indemnitee is or was a director,\nofficer, employee, agent, control person, or fiduciary of such constituent\ncorporation, or is or was\n\n\n\n\n\n                                       8.\n\n\nserving at the request of such constituent corporation as a director, officer,\nemployee, control person, agent or fiduciary of another corporation,\npartnership, joint venture, employee benefit plan, trust or other enterprise,\nIndemnitee shall stand in the same position under the provisions of this\nAgreement with respect to the resulting or surviving corporation as Indemnitee\nwould have with respect to such constituent corporation if its separate\nexistence had continued.\n\n                          b.      For purposes of this Agreement, references to\n'other enterprises' shall include employee benefit plans; references to 'fines'\nshall include any excise taxes assessed on any Indemnitee with respect to an\nemployee benefit plan; and references to 'serving at the request of the\nCompany' shall include any service as a director, officer, employee, agent or\nfiduciary of the Company which imposes duties on, or involves services by, such\ndirector, officer, employee, agent or fiduciary with respect to an employee\nbenefit plan, its participants or its beneficiaries; and if any Indemnitee\nacted in good faith and in a manner Indemnitee reasonably believed to be in the\ninterests of the participants and beneficiaries of an employee benefit plan,\nIndemnitee shall be deemed to have acted in a manner 'not opposed to the best\ninterests of the Company' as referred to in this Agreement.\n\n                          c.      For purposes of this Agreement a 'Change in\nControl' shall be deemed to have occurred if (i) any 'person' (as such term is\nused in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a\ntrustee or other fiduciary holding securities under an employee benefit plan of\nthe Company or a corporation owned directly or indirectly by the stockholders\nof the Company in substantially the same proportions as their ownership of\nstock of the Company, (A) who is or becomes the beneficial owner, directly or\nindirectly, of securities of the Company representing 10% or more of the\ncombined voting power of the Company's then outstanding Voting Securities,\nincreases his beneficial ownership of such securities by 5% or more over the\npercentage so owned by such person, or (B) becomes the 'beneficial owner' (as\ndefined in Rule 13d-3 under said Exchange Act), directly or indirectly, of\nsecurities of the Company representing more than 20% of the total voting power\nrepresented by the Company's then outstanding Voting Securities, (ii) during\nany period of two consecutive years, individuals who at the beginning of such\nperiod constitute the Board of Directors of the Company and any new director\nwhose election by the Board of Directors or nomination for election by the\nCompany's stockholders was approved by a vote of at least two-thirds of the\ndirectors then still in office who either were directors at the beginning of\nthe period or whose election or nomination for election was previously so\napproved, cease for any reason to constitute a majority thereof, or (iii) the\nstockholders of the Company approve a merger or consolidation of the Company\nwith any other corporation other than a merger or consolidation which would\nresult in the Voting Securities of the Company outstanding immediately prior\nthereto continuing to represent (either by remaining outstanding or by being\nconverted into Voting Securities of the surviving entity) at least 80% of the\ntotal voting power represented by the Voting Securities of the Company or such\nsurviving entity outstanding immediately after such merger or consolidation, or\nthe stockholders of the Company approve a plan of complete liquidation of the\nCompany or an agreement for the sale or disposition by the Company of (in one\ntransaction or a series of transactions) all or substantially all of the\nCompany's assets.\n\n\n\n\n\n                                       9.\n\n\n                          d.      For purposes of this Agreement, 'Independent\nLegal Counsel' shall mean an attorney or firm of attorneys, selected in\naccordance with the provisions of Section 3(d) hereof, who shall not have\notherwise performed services for the Company or any Indemnitee within the last\nthree years (other than with respect to matters concerning the right of any\nIndemnitee under this Agreement, or of other indemnitees under similar\nindemnity agreements).\n\n                          e.      For purposes of this Agreement, a 'Reviewing\nParty' shall mean any appropriate person or body consisting of a member or\nmembers of the Company's Board of Directors or any other person or body\nappointed by the Board of Directors who is not a party to the particular Claim\nfor which Indemnitee are seeking indemnification, or Independent Legal Counsel.\n\n                          f.      For purposes of this Agreement, 'Voting\nSecurities' shall mean any securities of the Company that vote generally in the\nelection of directors.\n\n                 13.      Counterparts.\n\n                          This Agreement may be executed in one or more\ncounterparts, each of which shall constitute an original.\n\n                 14.      Binding Effect; Successors and Assigns.\n\n                          This Agreement shall be binding upon and inure to the\nbenefit of and be enforceable by the parties hereto and their respective\nsuccessors, assigns, including any direct or indirect successor by purchase,\nmerger, consolidation or otherwise to all or substantially all of the business\nand\/or assets of the Company, spouses, heirs, and personal and legal\nrepresentatives. The Company shall require and cause any successor (whether\ndirect or indirect by purchase, merger, consolidation or otherwise) to all,\nsubstantially all, or a substantial part, of the business and\/or assets of the\nCompany, by written agreement in form and substance satisfactory to Indemnitee,\nexpressly to assume and agree to perform this Agreement in the same manner and\nto the same extent that the Company would be required to perform if no such\nsuccession had taken place. This Agreement shall continue in effect with\nrespect to Claims relating to Indemnifiable Events regardless of whether any\nIndemnitee continues to serve as a director, officer, employee, agent,\ncontrolling person, or fiduciary of the Company or of any other enterprise,\nincluding subsidiaries of the Company, at the Company's request.\n\n                 15.      Attorneys' Fees. In the event that any action is\ninstituted by an Indemnitee under this Agreement or under any liability\ninsurance policies maintained by the Company to enforce or interpret any of the\nterms hereof or thereof, any Indemnitee shall be entitled to be paid all\nExpenses incurred by Indemnitee with respect to such action if Indemnitee is\nultimately successful in such action, and shall be entitled to the advancement\nof Expenses with respect to such action, unless, as a part of such action, a\ncourt of competent\n\n\n\n\n\n                                      10.\n\n\njurisdiction over such action determines that the material assertions made by\nIndemnitee as a basis for such action were not made in good faith or were\nfrivolous. In the event of an action instituted by or in the name of the\nCompany under this Agreement to enforce or interpret any of the terms of this\nAgreement, Indemnitee shall be entitled to be paid all Expenses incurred by\nIndemnitee in defense of such action (including costs and expenses incurred\nwith respect to Indemnitee counterclaims and cross-claims made in such action),\nand shall be entitled to the advancement of Expenses with respect to such\naction, unless, as a part of such action, a court having jurisdiction over such\naction determines that the Indemnitee's material defenses to such action were\nmade in bad faith or were frivolous.\n\n                 16.      Notice. All notices and other communications required\nor permitted hereunder shall be in writing, shall be effective when given, and\nshall in any event be deemed to be given (a) five (5) days after deposit with\nthe U.S. Postal Service or other applicable postal service, if delivered by\nfirst class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c)\none business day after the business day of deposit with Federal Express or\nsimilar overnight courier, freight prepaid, or (d) one day after the business\nday of delivery by facsimile transmission, if deliverable by facsimile\ntransmission, with copy by first class mail, postage prepaid, and shall be\naddressed if to Indemnitee, at Indemnitee's address as set forth beneath\nIndemnitee's signature to this Agreement and if to the Company at the address\nof its principal corporate offices (attention: President) or at such other\naddress as such party may designate by ten (10) days' advance written notice to\nthe other party hereto.\n\n                 17.      Consent to Jurisdiction.  The Company and Indemnitee\neach hereby irrevocably consent to the jurisdiction of the courts of the State\nof Delaware for all purposes in connection with any action or proceeding which\narises out of or relates to this Agreement and agree that any action instituted\nunder this Agreement shall be commenced, prosecuted and continued only in the\nCourt of Chancery of the State of Delaware in and for New Castle County, which\nshall be the exclusive and only proper forum for adjudicating such a claim.\n\n                 18.      Severability.  The provisions of this Agreement shall\nbe severable in the event that any of the provisions hereof (including any\nprovision within a single section, paragraph or sentence) are held by a court\nof competent jurisdiction to be invalid, void or otherwise unenforceable, and\nthe remaining provisions shall remain enforceable to the fullest extent\npermitted by law. Furthermore, to the fullest extent possible, the provisions\nof this Agreement (including, without limitations, each portion of this\nAgreement containing any provision held to be invalid, void or otherwise\nunenforceable, that is not itself invalid, void or unenforceable) shall be\nconstrued so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\n\n                 19.      Choice of Law.  This Agreement shall be governed by\nand its provisions construed and enforced in accordance with the laws of the\nState of Delaware, as applied to contracts between Delaware residents, entered\ninto and to be performed entirely within the State of Delaware, without regard\nto the conflict of laws principles thereof.\n\n\n\n\n\n                                      11.\n\n\n                 20.      Subrogation.  In the event of payment under this\nAgreement, the Company shall be subrogated to the extent of such payment to all\nof the rights of recovery of Indemnitee who shall execute all documents\nrequired and shall do all acts that may be necessary to secure such rights and\nto enable the Company effectively to bring suit to enforce such rights.\n\n                 21.      Amendment and Termination.  No amendment,\nmodification, termination or cancellation of this Agreement shall be effective\nunless it is in writing signed by all parties hereto. No waiver of any of the\nprovisions of this Agreement shall be deemed or shall constitute a waiver of\nany other provisions hereof (whether or not similar) nor shall such waiver\nconstitute a continuing waiver.\n\n                 22.      Integration and Entire Agreement.  This Agreement\nsets forth the entire understanding between the parties hereto and supersedes\nand merges all previous written and oral negotiations, commitments,\nunderstandings and agreements relating to the subject matter hereof between the\nparties hereto.\n\n                 23.      No Construction as Employment Agreement.  Nothing\ncontained in this Agreement shall be construed as giving the Indemnitee any\nright to be retained in the employ of the Company or any of its subsidiaries.\n\n                 24.      Corporate Authority.  The Board of Directors of the\nCompany has approved the terms of this Agreement.\n\n\n\n\n\n                                      12.\n\n\n                 IN WITNESS WHEREOF, the parties hereto have executed this\nAgreement on and as of the day and year first above written.\n\n\n                                           COMPANY:\n\n\n                                           COM21, INC.,\n                                           a Delaware corporation\n\n\n\n                                           By:__________________________________\n                                              Peter Fenner\n                                              President\n\n\n                                           INDEMNITEE\n\n\n                                           By:__________________________________\n                                              1\n\n\n                                           Address:_____________________________\n\n                                                   _____________________________\n\n                                                   _____________________________\n\n\n\n\n\n            [SIGNATURE PAGE TO COM21, INC. INDEMNIFICATION AGREEMENT]\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7151],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9553,9557],"class_list":["post-40797","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-com21-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40797","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40797"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40797"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40797"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40797"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}