EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
This Agreement (the "Agreement"), made and entered into as of this 28th
day of January, 2004, by and among CAPITAL GROWTH SYSTEMS, INC. ("CGSI"), NEXVU
TECHNOLOGIES, LLC., a Delaware limited liability company ("Nexvu" and together
with CGSI, collectively the "Company,") and each of RORY HERRIMAN, SCOTT ALLEN,
LASALLE NEXVU MANAGER, LLC, ROBERT T. GERAS, DOUGLAS STUKEL and LEE WISKOWSKI
(individually and collectively, an "Indemnitee"):
WHEREAS, it is essential to the Company that it be able to retain and
attract and maintain as officers, directors and managers of the Company the most
capable persons available;
WHEREAS, increased litigation has subjected officers, directors and
managers to litigation risks and expenses, and the limitations on the
availability of liability insurance have made it increasingly difficult for the
Company to attract and retain such persons;
WHEREAS, the CGSI's charter and bylaws (the "CGSI Documents") and
Nexvu's Second Amended and Restated Limited Liability Company Agreement, as
amended from time to time (the "Operating Agreement"), authorize them to
indemnify its offices, directors, managers, professionals and affiliates to the
fullest extent permitted by law and permit it to make other indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide each Indemnitee with specific
contractual assurance of Indemnitee's rights to full indemnification against
litigation risks and expenses (regardless, among other things, of any amendment
to the CGSI Documents or the Operating Agreement or any change in the ownership
of the Company or the composition of its officers, directors, or managers);
WHEREAS, the Company intends that this Agreement provide each
Indemnitee with greater protection than that which is provided by the CGSI
Documents or the Operating Agreement; and
WHEREAS, each Indemnitee is relying upon the rights afforded under this
Agreement in continuing to act as a director, manager or officer of the Company.
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "CORPORATE STATUS" DESCRIBES THE STATUS OF A PERSON WHO IS
SERVING OR HAS SERVED:
(i) as a Manager of Nexvu or a director of CGSI;
(ii) in any capacity with respect to any employee
benefit plan of the Company; or
(iii) as a director, partner, trustee, officer,
employee, or agent of the Company or any other Entity at the
request of the Company.
For purposes of subsection (iii) of this Section 1(a), if Indemnitee is
serving or has served as a director, manager, partner, trustee,
officer, employee or agent of a Subsidiary, Indemnitee shall be deemed
to be serving at the request of the Company.
(b) "ENTITY" SHALL MEAN ANY CORPORATION, PARTNERSHIP, LIMITED
LIABILITY COMPANY, JOINT VENTURE, TRUST, FOUNDATION, ASSOCIATION,
ORGANIZATION OR OTHER LEGAL ENTITY.
(c) "EXPENSES" SHALL MEAN ALL FEES, COSTS AND EXPENSES
INCURRED BY INDEMNITEE IN CONNECTION WITH ANY PROCEEDING (AS DEFINED
BELOW), INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, DISBURSEMENTS
AND RETAINERS (INCLUDING, WITHOUT LIMITATION, ANY SUCH FEES,
DISBURSEMENTS AND RETAINERS INCURRED BY INDEMNITEE PURSUANT TO SECTIONS
10 AND 11(C) OF THIS AGREEMENT), FEES AND DISBURSEMENTS OF EXPERT
WITNESSES, PRIVATE INVESTIGATORS AND PROFESSIONAL ADVISORS (INCLUDING,
WITHOUT LIMITATION, ACCOUNTANTS AND INVESTMENT BANKERS), COURT COSTS,
TRANSCRIPT COSTS, FEES OF EXPERTS, TRAVEL EXPENSES, DUPLICATING,
PRINTING AND BINDING COSTS, TELEPHONE AND FAX TRANSMISSION CHARGES,
POSTAGE, DELIVERY SERVICES, SECRETARIAL SERVICES, AND OTHER
DISBURSEMENTS AND EXPENSES.
(d) "INDEMNIFIABLE EXPENSES," "INDEMNIFIABLE LIABILITIES" AND
"INDEMNIFIABLE AMOUNTS" SHALL HAVE THE MEANINGS ASCRIBED TO THOSE TERMS
IN SECTION 3(A) BELOW.
(e) "INVESTOR STATUS" DESCRIBES THE STATUS OF A PERSON WHO HAS
PURCHASED OR ACQUIRED SECURITIES OF THE COMPANY.
(f) "LIABILITIES" SHALL MEAN JUDGMENTS, DAMAGES, LIABILITIES,
LOSSES, PENALTIES, EXCISE TAXES, FINES AND AMOUNTS PAID IN SETTLEMENT.
(g) "PROCEEDING" SHALL MEAN ANY THREATENED, PENDING OR
COMPLETED CLAIM, ACTION, SUIT, ARBITRATION, ALTERNATE DISPUTE
RESOLUTION PROCESS, INVESTIGATION, ADMINISTRATIVE HEARING, APPEAL, OR
ANY OTHER PROCEEDING, WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE,
ARBITRATIVE OR INVESTIGATIVE, WHETHER FORMAL OR INFORMAL, INCLUDING A
PROCEEDING INITIATED BY INDEMNITEE PURSUANT TO SECTION 10 OF THIS
AGREEMENT TO ENFORCE INDEMNITEE'S RIGHTS HEREUNDER.
(h) "SUBSIDIARY" SHALL MEAN ANY CORPORATION, PARTNERSHIP,
LIMITED LIABILITY COMPANY, JOINT VENTURE, TRUST OR OTHER ENTITY OF
WHICH THE COMPANY OWNS (EITHER DIRECTLY OR THROUGH OR TOGETHER WITH
ANOTHER SUBSIDIARY OF THE COMPANY) EITHER (I) A GENERAL PARTNER,
MANAGING MEMBER OR OTHER SIMILAR INTEREST OR (II) (A) 50% OR MORE OF
THE VOTING POWER OF THE VOTING CAPITAL EQUITY INTERESTS OF SUCH
CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY, JOINT VENTURE OR
OTHER ENTITY, OR (B) 50% OR MORE OF THE OUTSTANDING VOTING CAPITAL
STOCK OR OTHER VOTING EQUITY INTERESTS OF SUCH CORPORATION,
PARTNERSHIP, LIMITED LIABILITY COMPANY, JOINT VENTURE OR OTHER ENTITY.
(i) "MANAGER OF THE COMPANY" SHALL REFER TO BOTH OF LASALLE
NEXVU MANAGER LLC AND ROBERT T. GERAS INDIVIDUALLY AND COLLECTIVELY.
2. Services of Indemnitee. In consideration of the Company's
covenants and commitments hereunder, Indemnitee agrees to continue to serve as a
director, Manager, and/or the Company. However, this Agreement shall not impose
any obligation on Indemnitee or the Company to continue Indemnitee's service to
the Company beyond any period otherwise required by law or by other agreements
or commitments of the parties, if any.
3. Agreement to Indemnify. The Company and CGSI each agrees to
indemnify Indemnitee as follows:
(a) PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE COMPANY.
SUBJECT TO THE EXCEPTIONS CONTAINED IN SECTION 4(A) BELOW, IF
INDEMNITEE WAS OR IS A PARTY OR IS THREATENED TO BE MADE A PARTY TO ANY
PROCEEDING (OTHER THAN AN ACTION BY OR IN THE RIGHT OF THE COMPANY) BY
REASON OF INDEMNITEE'S CORPORATE STATUS OR INVESTOR STATUS, INDEMNITEE
SHALL BE INDEMNIFIED BY THE COMPANY AGAINST ALL EXPENSES AND
LIABILITIES INCURRED OR PAID BY INDEMNITEE IN CONNECTION WITH SUCH
PROCEEDING (REFERRED TO HEREIN AS "INDEMNIFIABLE EXPENSES" AND
"INDEMNIFIABLE LIABILITIES," RESPECTIVELY, AND COLLECTIVELY AS
"INDEMNIFIABLE AMOUNTS").
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. SUBJECT TO
THE EXCEPTIONS CONTAINED IN SECTION 4(B) BELOW, IF INDEMNITEE WAS OR IS
A PARTY OR IS THREATENED TO BE MADE A PARTY TO ANY PROCEEDING BY OR IN
THE RIGHT OF THE COMPANY BY REASON OF INDEMNITEE'S CORPORATE STATUS OR
INVESTOR STATUS, INDEMNITEE SHALL BE INDEMNIFIED BY THE COMPANY AGAINST
ALL INDEMNIFIABLE EXPENSES.
(c) CONCLUSIVE PRESUMPTION REGARDING STANDARD OF CARE. IN
MAKING ANY DETERMINATION REQUIRED TO BE MADE UNDER DELAWARE LAW WITH
RESPECT TO ENTITLEMENT TO INDEMNIFICATION HEREUNDER, THE PERSON,
PERSONS OR ENTITY MAKING SUCH DETERMINATION SHALL PRESUME THAT
INDEMNITEE IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT IF
INDEMNITEE SUBMITTED A REQUEST THEREFOR IN ACCORDANCE WITH SECTION 5 OF
THIS AGREEMENT, AND THE COMPANY SHALL HAVE THE BURDEN OF PROOF TO
OVERCOME THAT PRESUMPTION IN CONNECTION WITH THE MAKING BY ANY PERSON,
PERSONS OR ENTITY OF ANY DETERMINATION CONTRARY TO THAT PRESUMPTION.
4. Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all circumstances other
than with respect to any specific claim, issue or matter involved in the
Proceeding out of which Indemnitee's claim for indemnification has arisen, as
follows:
(a) PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE COMPANY.
IF INDEMNIFICATION IS REQUESTED UNDER SECTION 3(A) AND IT HAS BEEN
FINALLY ADJUDICATED BY A COURT OF COMPETENT JURISDICTION THAT, IN
CONNECTION WITH SUCH SPECIFIC CLAIM, ISSUE OR MATTER, INDEMNITEE FAILED
TO ACT (I) IN GOOD FAITH AND (II) IN A MANNER INDEMNITEE REASONABLY
BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE COMPANY,
OR, WITH RESPECT TO ANY CRIMINAL PROCEEDING, INDEMNITEE HAD REASONABLE
CAUSE TO BELIEVE THAT INDEMNITEE'S CONDUCT WAS UNLAWFUL, INDEMNITEE
SHALL NOT BE ENTITLED TO PAYMENT OF INDEMNIFIABLE AMOUNTS HEREUNDER.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. IF
INDEMNIFICATION IS REQUESTED UNDER SECTION 3(b) AND:
(i) it has been finally adjudicated by a court of
competent jurisdiction that, in connection with such specific
claim, issue or matter, Indemnitee failed to act: (A) in good
faith; and (B) in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company,
Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder; or
(ii) it has been finally adjudicated by a court of
competent jurisdiction that Indemnitee is liable to the
Company with respect to such specific claim, Indemnitee shall
not be entitled to payment of Indemnifiable Expenses hereunder
with respect to such claim, issue or matter unless the Court
of Chancery or another court in which such Proceeding was
brought shall determine upon application that, despite the
adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Indemnifiable Expenses
which such court shall deem proper; or
(iii) it has been finally adjudicated by a court of
competent jurisdiction that Indemnitee is liable to the
Company for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company pursuant
to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, the rules and regulations promulgated thereunder
and amendments thereto or similar provisions of any federal,
state or local statutory law, Indemnitee shall not be entitled
to payment of Indemnifiable Expenses hereunder.
(c) INSURANCE PROCEEDS. TO THE EXTENT PAYMENT IS ACTUALLY MADE
TO THE INDEMNITEE UNDER A VALID AND COLLECTIBLE INSURANCE POLICY IN
RESPECT OF INDEMNIFIABLE AMOUNTS IN CONNECTION WITH SUCH SPECIFIC
CLAIM, ISSUE OR MATTER, INDEMNITEE SHALL NOT BE ENTITLED TO PAYMENT OF
INDEMNIFIABLE AMOUNTS HEREUNDER EXCEPT IN RESPECT OF ANY EXCESS BEYOND
THE AMOUNT OF PAYMENT UNDER SUCH INSURANCE.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Amounts for
which Indemnitee seeks payment under Section 3 of this Agreement and the basis
for the claim. The Company shall pay such Indemnifiable Amounts to Indemnitee
within ten (10) calendar days of receipt of the request. At the request of the
Company, Indemnitee shall furnish such documentation and information as are
reasonably available to Indemnitee and necessary to establish that Indemnitee is
entitled to indemnification hereunder.
6. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status or Investor Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified
against all Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf
in connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall
indemnify Indemnitee against all Expenses reasonably incurred by Indemnitee or
on Indemnitee's behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Agreement, the termination of any claim,
issue or matter in such a Proceeding by dismissal, with or without prejudice, by
reason of settlement, judgment, order or otherwise, shall be deemed to be a
successful result as to such claim, issue or matter.
7. Effect of Certain Resolutions. Neither the settlement or termination
of any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create a presumption that
Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not 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, had reasonable cause to believe
that Indemnitee's action was unlawful.
8. Agreement to Advance Expenses; Undertaking. The Company shall
advance all Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding, including a Proceeding by or in the right of the Company, in
which Indemnitee is involved by reason of such Indemnitee's Corporate Status or
Investor Status within ten (10) calendar days after the receipt by the Company
of a written statement from Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such Proceeding. To
the extent required by Delaware law, Indemnitee hereby undertakes to repay any
and all of the amount of Indemnifiable Expenses paid to Indemnitee if it is
finally determined by a court of competent jurisdiction that Indemnitee is not
entitled under this Agreement to indemnification with respect to such Expenses.
This undertaking is an unlimited general obligation of Indemnitee.
9. Procedure for Advance Payment of Expenses. Indemnitee shall submit
to the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 8 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 8 shall be made no
later than ten (10) calendar days after the Company's receipt of such request.
10. Remedies of Indemnitee.
(a) RIGHT TO PETITION COURT. IN THE EVENT THAT INDEMNITEE
MAKES A REQUEST FOR PAYMENT OF INDEMNIFIABLE AMOUNTS UNDER SECTIONS 3
AND 5 ABOVE OR A REQUEST FOR AN ADVANCEMENT OF INDEMNIFIABLE EXPENSES
UNDER SECTIONS 8 AND 9 ABOVE AND THE COMPANY FAILS TO MAKE SUCH PAYMENT
OR ADVANCEMENT IN A TIMELY MANNER PURSUANT TO THE TERMS OF THIS
AGREEMENT, INDEMNITEE MAY PETITION THE COURT OF CHANCERY TO ENFORCE THE
COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT.
(b) BURDEN OF PROOF. IN ANY JUDICIAL PROCEEDING BROUGHT UNDER
SECTION 10(a) ABOVE, THE COMPANY SHALL HAVE THE BURDEN OF PROVING THAT
INDEMNITEE IS NOT ENTITLED TO PAYMENT OF INDEMNIFIABLE AMOUNTS
HEREUNDER.
(c) EXPENSES. THE COMPANY AGREES TO REIMBURSE INDEMNITEE IN
FULL FOR ANY EXPENSES INCURRED BY INDEMNITEE IN CONNECTION WITH
INVESTIGATING, PREPARING FOR, LITIGATING, DEFENDING OR SETTLING ANY
ACTION BROUGHT BY INDEMNITEE UNDER SECTION 10(A) ABOVE, OR IN
CONNECTION WITH ANY CLAIM OR COUNTERCLAIM BROUGHT BY THE COMPANY IN
CONNECTION THEREWITH, WHETHER OR NOT INDEMNITEE IS SUCCESSFUL IN WHOLE
OR IN PART IN CONNECTION WITH ANY SUCH ACTION.
(d) FAILURE TO ACT NOT A DEFENSE. THE FAILURE OF THE COMPANY
(INCLUDING ITS BOARD OF DIRECTORS OR ANY COMMITTEE THEREOF, INDEPENDENT
LEGAL COUNSEL, OR STOCKHOLDERS) TO MAKE A DETERMINATION
CONCERNING THE PERMISSIBILITY OF THE PAYMENT OF INDEMNIFIABLE AMOUNTS
OR THE ADVANCEMENT OF INDEMNIFIABLE EXPENSES UNDER THIS AGREEMENT SHALL
NOT BE A DEFENSE IN ANY ACTION BROUGHT UNDER SECTION 10(a) ABOVE, AND
SHALL NOT CREATE A PRESUMPTION THAT SUCH PAYMENT OR ADVANCEMENT IS NOT
PERMISSIBLE.
11. Defense of the Underlying Proceeding.
(a) NOTICE BY INDEMNITEE. INDEMNITEE AGREES TO NOTIFY THE
COMPANY PROMPTLY UPON BEING SERVED WITH ANY SUMMONS, CITATION,
SUBPOENA, COMPLAINT, INDICTMENT, INFORMATION, OR OTHER DOCUMENT
RELATING TO ANY PROCEEDING WHICH MAY RESULT IN THE PAYMENT OF
INDEMNIFIABLE AMOUNTS OR THE ADVANCEMENT OF INDEMNIFIABLE EXPENSES
HEREUNDER; PROVIDED, HOWEVER, THAT THE FAILURE TO GIVE ANY SUCH NOTICE
SHALL NOT DISQUALIFY INDEMNITEE FROM THE RIGHT, OR OTHERWISE AFFECT IN
ANY MANNER ANY RIGHT OF INDEMNITEE, TO RECEIVE PAYMENTS OF
INDEMNIFIABLE AMOUNTS OR ADVANCEMENTS OF INDEMNIFIABLE EXPENSES UNLESS
THE COMPANY'S ABILITY TO DEFEND IN SUCH PROCEEDING IS MATERIALLY AND
ADVERSELY PREJUDICED THEREBY.
(b) DEFENSE BY COMPANY. SUBJECT TO THE PROVISIONS OF THE LAST
SENTENCE OF THIS SECTION 11(B) AND OF SECTION 11(C) BELOW, THE COMPANY
SHALL HAVE THE RIGHT TO DEFEND INDEMNITEE IN ANY PROCEEDING WHICH MAY
GIVE RISE TO THE PAYMENT OF INDEMNIFIABLE AMOUNTS HEREUNDER; PROVIDED,
HOWEVER THAT THE COMPANY SHALL NOTIFY INDEMNITEE OF ANY SUCH DECISION
TO DEFEND WITHIN TEN (10) CALENDAR DAYS OF RECEIPT OF NOTICE OF ANY
SUCH PROCEEDING UNDER SECTION 11(A) ABOVE. THE COMPANY SHALL NOT,
WITHOUT THE PRIOR WRITTEN CONSENT OF INDEMNITEE, CONSENT TO THE ENTRY
OF ANY JUDGMENT AGAINST INDEMNITEE OR ENTER INTO ANY SETTLEMENT OR
COMPROMISE WHICH (I) INCLUDES AN ADMISSION OF FAULT OF INDEMNITEE OR
(II) DOES NOT INCLUDE, AS AN UNCONDITIONAL TERM THEREOF, THE FULL
RELEASE OF INDEMNITEE FROM ALL LIABILITY IN RESPECT OF SUCH PROCEEDING,
WHICH RELEASE SHALL BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
INDEMNITEE. THIS SECTION 11(B) SHALL NOT APPLY TO A PROCEEDING BROUGHT
BY INDEMNITEE UNDER SECTION 10(A) ABOVE.
(c) INDEMNITEE'S RIGHT TO COUNSEL. NOTWITHSTANDING THE
PROVISIONS OF SECTION 11(B) ABOVE, IF IN A PROCEEDING TO WHICH
INDEMNITEE IS A PARTY BY REASON OF INDEMNITEE'S CORPORATE STATUS OR
INVESTOR STATUS, (I) INDEMNITEE REASONABLY CONCLUDES THAT HE OR SHE MAY
HAVE SEPARATE DEFENSES OR COUNTERCLAIMS TO ASSERT WITH RESPECT TO ANY
ISSUE WHICH MAY NOT BE CONSISTENT WITH THE POSITION OF OTHER DEFENDANTS
IN SUCH PROCEEDING, (II) A CONFLICT OF INTEREST OR POTENTIAL CONFLICT
OF INTEREST EXISTS BETWEEN INDEMNITEE AND THE COMPANY, OR (III) IF THE
COMPANY FAILS TO ASSUME THE DEFENSE OF SUCH PROCEEDING IN A TIMELY
MANNER, INDEMNITEE SHALL BE ENTITLED TO BE REPRESENTED BY SEPARATE
LEGAL COUNSEL OF INDEMNITEE'S CHOICE AT THE EXPENSE OF THE COMPANY. IN
ADDITION, IF THE COMPANY FAILS TO COMPLY WITH ANY OF ITS OBLIGATIONS
UNDER THIS AGREEMENT OR IN THE EVENT THAT THE COMPANY OR ANY OTHER
PERSON TAKES ANY ACTION TO DECLARE THIS AGREEMENT VOID OR
UNENFORCEABLE, OR INSTITUTES ANY ACTION, SUIT OR PROCEEDING TO DENY OR
TO RECOVER FROM INDEMNITEE THE BENEFITS INTENDED TO BE PROVIDED TO
INDEMNITEE HEREUNDER, INDEMNITEE SHALL HAVE THE RIGHT TO RETAIN COUNSEL
OF INDEMNITEE'S CHOICE, AT THE EXPENSE OF THE COMPANY, TO REPRESENT
INDEMNITEE IN CONNECTION WITH ANY SUCH MATTER.
12. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:
(a) AUTHORITY. THE COMPANY HAS ALL NECESSARY POWER AND
AUTHORITY TO ENTER INTO, AND BE BOUND BY THE TERMS OF, THIS AGREEMENT,
AND THE EXECUTION, DELIVERY AND PERFORMANCE OF THE UNDERTAKINGS
CONTEMPLATED BY THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY THE
COMPANY.
(b) ENFORCEABILITY. THIS AGREEMENT, WHEN EXECUTED AND
DELIVERED BY THE COMPANY IN ACCORDANCE WITH THE PROVISIONS HEREOF,
SHALL BE A LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY,
ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, MORATORIUM, REORGANIZATION OR SIMILAR LAWS AFFECTING THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY.
13. Contract Rights Not Exclusive. The rights to payment of
Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, the CGSI Documents, the
Operating Agreement, or any other agreement, vote of stockholders, members, or
directors (or a committee of directors), or
otherwise, both as to action in Indemnitee's official capacity and as to action
in any other capacity as a result of Indemnitee's serving as a director of the
Company.
14. Successors. This Agreement shall be:
(a) BINDING UPON ALL SUCCESSORS AND ASSIGNS OF THE COMPANY
(INCLUDING ANY TRANSFEREE OF ALL OR A SUBSTANTIAL PORTION OF THE
BUSINESS, STOCK AND/OR ASSETS OF THE COMPANY AND ANY DIRECT OR INDIRECT
SUCCESSOR BY MERGER OR CONSOLIDATION OR OTHERWISE BY OPERATION OF LAW);
AND
(b) BINDING ON AND SHALL INURE TO THE BENEFIT OF THE HEIRS,
PERSONAL REPRESENTATIVES, COUNSEL, EXECUTORS AND ADMINISTRATORS OF
INDEMNITEE.
This Agreement shall continue for the benefit of Indemnitee and such heirs,
personal representatives, executors and administrators after Indemnitee has
ceased to have Corporate Status or Investor Status.
15. Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request and expense of the
Company, all reasonable action necessary to secure such rights, including the
execution of such documents as are necessary to enable the Company to bring suit
to enforce such rights.
16. Change in Law. To the extent that a change in Delaware law (whether
by statute or judicial decision) shall permit broader indemnification or
advancement of expenses than is provided under the terms of the CGSI Documents,
Operating Agreement and this Agreement, Indemnitee shall be entitled to such
broader indemnification and advancements, and this Agreement shall be deemed to
be amended to such extent.
17. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
18. Modifications and Waiver. Except as provided in Section 17 above
with respect to changes in Delaware law which broaden the right of Indemnitee to
be indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
19. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given:
(a) WHEN DELIVERED BY HAND;
(b) WHEN TRANSMITTED BY FACSIMILE AND RECEIPT IS ACKNOWLEDGED;
OR
(c) IF MAILED BY CERTIFIED OR REGISTERED MAIL WITH POSTAGE
PREPAID, ON THE THIRD BUSINESS DAY AFTER THE DATE ON WHICH IT IS SO
MAILED:
IF TO CGSI OR NEXVU, TO: WITH A COPY TO:
Nexvu Technologies, LLC Shefsky & Froelich Ltd.
1100 East Woodfield Road-Suite 100 444 North Michigan Avenue
Schaumburg, IL 60173 Chicago, Illinois 60611
Attention: Manager Attention: Mitchell D. Goldsmith, Esq.
Facsimile: (630) 872-5872 Facsimile: (312) 527-3194
E-Mail: __________________ E-Mail: mgoldsmith@shefskylaw.com
IF TO INDEMNITEE, TO:
The address on the books and records of the
Company
or to such other address as may have been furnished in the same manner
by any party to the others.
20. Governing Law; Consent to Jurisdiction; Service of Process. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to its rules of conflict of laws. Each of the
Company and the Indemnitee hereby irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the state and federal courts located in
the county of Cook, Illinois for any litigation arising out of or relating to
this Agreement and the transactions contemplated hereby (and agrees not to
commence any litigation relating thereto except in such courts), waives any
objection to the laying of venue of any such litigation and agrees not to plead
or claim that such litigation brought therein has been brought in an
inconvenient forum. Each of the parties hereto agrees:
(a) TO THE EXTENT SUCH PARTY IS NOT OTHERWISE SUBJECT TO
SERVICE OF PROCESS IN THE STATE OF ILLINOIS, TO APPOINT AND MAINTAIN AN
AGENT IN THE STATE OF ILLINOIS AS SUCH PARTY'S AGENT FOR ACCEPTANCE OF
LEGAL PROCESS; AND
(b) THAT SERVICE OF PROCESS MAY ALSO BE MADE ON SUCH PARTY BY
PREPAID CERTIFIED MAIL WITH A PROOF OF MAILING RECEIPT VALIDATED BY THE
UNITED STATES POSTAL SERVICE CONSTITUTING EVIDENCE OF VALID SERVICE.
Service made pursuant to (a) or (b) above shall have the same legal force and
effect as if served upon such party personally within the State of Illinois.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
CAPITAL GROWTH SYSTEMS, INC. LASALLE NEXVU TECHNOLOGIES MANAGER
LLC
By:
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Lee Wiskowski, President By:
-------------------------------------
Robert T. Geras, Manager
NEXVU TECHNOLOGIES, LLC
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ROBERT T. GERAS
By:
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Robert T. Geras, Manager of its ---------------------------------------------
Manager, LaSalle Nexvu SCOTT ALLEN
Technologies Manager, LLC
---------------------------------------------
RORY HERRIMAN
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DOUGLAS STUKEL
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LEE WISKOWSKI