Exhibit 10.26




 




CONSONUS TECHNOLOGIES, INC.






INDEMNIFICATION AGREEMENT




 




THIS INDEMNIFICATION AGREEMENT (“Agreement”) is
entered into as of
                ,
2007, by and between Consonus Technologies, Inc. a Delaware corporation
(the “Corporation”),
and                               
(“Indemnitee”).




 




RECITALS




 




A.            The Corporation and Indemnitee
recognize the continued difficulty in obtaining liability insurance for its
directors, officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance.




 




B.            The Corporation and Indemnitee
further recognize the substantial increase in corporate litigation in general,
subjecting directors, officers, employees, agents and fiduciaries to expensive
litigation risks at the same time as the availability and coverage of liability
insurance has been severely limited.




 




C.            The Corporation desires to attract
and retain the services of highly qualified individuals, such as Indemnitee, to
serve the Corporation and, in part, in order to induce Indemnitee to continue
to provide services to the Corporation, wishes to provide for the
indemnification and advancing of expenses to Indemnitee to the maximum extent
permitted by Delaware law.




 




D.            This Agreement is a supplement to
and in furtherance of the By-laws of the Corporation and any resolutions
adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder.




 




E.             In view of the considerations set
forth above, the Corporation desires that Indemnitee be indemnified by the
Corporation as set forth herein.




 




NOW, THEREFORE, the Corporation and
Indemnitee hereby agree as follows:




 




1.             Indemnification.




 




(a)           Indemnification of Expenses.  The Corporation shall hold harmless and
indemnify Indemnitee to the fullest extent permitted by law if Indemnitee was
or is or becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant in, any
threatened, pending or completed action, suit, proceeding or alternative
dispute resolution mechanism, or any hearing, inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or other (hereinafter a “Claim”) by reason of
(or arising in part out of) any event or occurrence related to the fact that
Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Corporation, or any subsidiary of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee, agent or fiduciary
of another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action or inaction on the part of Indemnitee while serving
in such capacity (hereinafter an “Indemnifiable Event”) against any and all
expenses (including attorneys’ fees and all other costs, expenses and obligations
incurred in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, be a witness in
or participate in,




 

















 




any
such action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, fines, penalties and amounts
paid in settlement (if such settlement is approved in advance by the
Corporation, which approval shall not be unreasonably withheld) of such Claim
and 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
(collectively, hereinafter “Expenses”), including all interest, assessments and
other charges paid or payable in connection with or in respect of such
Expenses.  Such payment of Expenses shall
be made by the Corporation as soon as practicable but in any event no later
than 10 days after written demand by Indemnitee therefor is presented to the
Corporation.




 




(b)           Reviewing Party. 
Notwithstanding the foregoing, (i) the obligations of the
Corporation under Section 1(a) shall be subject to the
condition that the Reviewing Party (as defined in Section 8(e) hereof)
shall not have determined (in a written opinion, in any case in which the Independent
Legal Counsel referred to in Section 1(c) hereof is involved)
that Indemnitee would not be permitted to be indemnified under Delaware law,
and (ii) the obligation of the Corporation to make an advance payment of
Expenses to Indemnitee pursuant to Section 2(a) (an “Expense Advance”)
shall be subject to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under Delaware law, the Corporation shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the Corporation) for
all such amounts theretofore paid; provided,
however, that if Indemnitee has commenced or thereafter commences
legal proceedings in the Court of Chancery of the State of Delaware to secure a
determination that Indemnitee should be indemnified under Delaware law, any
determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under Delaware law shall not be binding and
Indemnitee shall not be required to reimburse the Corporation for any Expense
Advance until a final judicial determination is made with respect thereto (as
to which all rights of appeal therefrom have been exhausted or lapsed).  Indemnitee’s obligation to reimburse the Corporation
for any Expense Advance shall be unsecured and no interest shall be charged
thereon.  If there has not been a Change
in Control (as defined in Section 8(c) hereof), the Reviewing
Party shall be selected by the Board of Directors, unless the Indemnitee elects
to have the Reviewing Party be Independent Legal Counsel (as defined in Section 8(d) hereof)
selected by Indemnitee and approved by the Corporation (which approval shall
not be unreasonably withheld).  If there
has been such a Change in Control (other than a Change in Control which has
been approved by a majority of the Corporation’s Board of Directors who were
directors immediately prior to such Change in Control), the Reviewing Party
shall be the Independent Legal Counsel referred to in Section 1(c) hereof.  If there has been no determination by the
Reviewing Party within 60 days after the receipt by the Corporation of the
request for indemnification the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall 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; provided, however, that such 60-day period may be
extended for a reasonable time, not to exceed an additional 30 days, if the
person, persons or entity making such determination with respect to entitlement
to indemnification in good faith requires such additional time to obtain or
evaluate documentation and/or information relating thereto.  If the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or
in part under Delaware law, Indemnitee shall have the right to commence
litigation seeking an initial determination by the court or challenging any
such determination by the Reviewing Party or any aspect thereof, including the
legal or factual bases therefor, and the




 

















 




Corporation
hereby consents to service of process and to appear in any such
proceeding.  Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the Corporation
and Indemnitee.




 




(c)           Change in Control.  The Corporation agrees that if there is a
Change in Control of the Corporation (other than a Change in Control which has
been approved by a majority of the Corporation’s Board of Directors who were
directors immediately prior to such Change in Control) then, with respect to
all matters thereafter arising concerning the rights of Indemnitees to payments
of Expenses and Expense Advances under this Agreement or any other agreement or
under the Corporation’s Certificate of Incorporation or Bylaws as now or
hereafter in effect, Independent Legal Counsel shall be selected by Indemnitee
and approved by the Corporation (which approval shall not be unreasonably
withheld).  If, within 20 days after
submission by Indemnitee of a written request for indemnification and the
election by the Indemnitee to have the Reviewing Party be Independent Legal
Counsel, no Independent Legal Counsel shall have been selected and not objected
to, either the Corporation or Indemnitee may petition the Court of Chancery of
the State of Delaware or other court of competent jurisdiction for resolution
of any objection which shall have been made by the Corporation to the
Indemnitee’s selection of Independent Legal Counsel and/or for the appointment
as Independent Legal Counsel of a person selected by the court or by such other
person as the court shall designate, and the person with respect to whom all
objections are so resolved or the person so appointed shall act as Independent
Legal Counsel.  Such counsel, among other
things, shall render its written opinion to the Corporation and Indemnitee as
to whether and to what extent Indemnitee would be permitted to be indemnified
under Delaware law and the Corporation agrees to abide by such opinion.  The Corporation agrees to pay the reasonable
fees of the Independent Legal Counsel referred to above and to fully indemnify
such counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.




 




(d)           Mandatory Payment of Expenses.  Notwithstanding any other provision of this
Agreement other than Section 7 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
action, suit, proceeding, inquiry or investigation referred to in Section (1)(a) hereof
or in the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred by Indemnitee in connection
therewith.




 




2.             Expenses;
Indemnification Procedure.




 




(a)           Advancement of Expenses.  The Corporation shall advance all Expenses
incurred by Indemnitee.  The advances to
be made hereunder shall be paid by the Corporation to Indemnitee as soon as
practicable but in any event no later than ten (10) days after written
demand by Indemnitee therefor to the Corporation.  To the extent requested by Indemnitee and
approved by the Board of Directors of the Corporation, the Corporation may at
any time and from time to time provide security to Indemnitee for the
Corporation’s obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral.  Any
such security, once provided to Indemnitee, may not be revoked or released
without the prior written consent of the Indemnitee.




 




(b)           Notice/Cooperation by Indemnitee.  Indemnitee shall, as a condition precedent to
Indemnitees’ right to be indemnified under this Agreement, give the Corporation
notice in writing as soon as practicable of any Claim made against Indemnitee
for which indemnification




 

















 




will
or could be sought under this Agreement. 
Notice to the Corporation shall be directed to the Chief Executive
Officer of the Corporation at the address shown on the signature page of
this Agreement (or such other address as the Corporation shall designate in
writing to Indemnitee).  In addition,
Indemnitee shall give the Corporation such information and cooperation as it
may reasonably require and as shall be within Indemnitees’ power.




 




(c)           No Presumptions; Burden of Proof.  For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of guilty or nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief
or that a court has determined that indemnification is not permitted by
Delaware law.  In addition, neither the failure
of the Reviewing Party to have made a determination as to whether Indemnitee
has met any particular standard of conduct or had any particular belief, nor an
actual determination by the Reviewing Party that Indemnitee has not met such
standard of conduct or did not have such belief, prior to the commencement of
legal proceedings by Indemnitee to secure a judicial determination that
Indemnitee should be indemnified under Delaware law, shall be a defense to
Indemnitee’s claim or create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any particular belief.  In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Corporation to
establish that Indemnitee is not so entitled. 
Indemnitee shall be deemed to have acted in good faith, without
limitation, where Indemnitee’s action is based on the records or books of
account of the Corporation, including financial statements, or on information
supplied to Indemnitee by the officers of the Corporation in the course of
their duties, or on the advice of legal counsel for the Corporation or on
information or records given or reports made to the Corporation by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation.  In addition, the knowledge and/or actions, or
failure to act, of any other director, officer, agent or employee of the Corporation
shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.




 




(d)           Notice to Insurers.  If, at the time of the receipt by the
Corporation of a notice of a Claim pursuant to Section 2(b) hereof,
the Corporation has liability insurance in effect which may cover such Claim,
the Corporation shall give prompt notice of the commencement of such Claim to
the insurers in accordance with the procedures set forth in the respective
policies.  The Corporation shall
thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of Indemnitee, all amounts payable as a result of such action,
suit, proceeding, inquiry or investigation in accordance with the terms of such
policies.




 




(e)           Selection of Counsel.  In the event the Corporation shall be
obligated hereunder to pay the Expenses of any Claim, the Corporation shall be
entitled to assume the defense of such Claim with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of the Corporation’s election so to
do.  After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by the
Corporation, the Corporation will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same Claim; provided that, (i) Indemnitee shall have the
right to employ Indemnitees’ counsel in any such Claim at Indemnitee expense
and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Corporation, (B) Indemnitee shall have
reasonably concluded that there is a




 

















 




conflict
of interest between the Corporation and Indemnitee in the conduct of any such
defense, or (C) the Corporation shall not continue to retain such counsel
to defend such Claim, then the fees and expenses of Indemnitee counsel shall be
at the expense of the Corporation.  The
Corporation shall have the right to conduct such defense as it sees fit in its
sole discretion, including the right to settle any claim against Indemnitee
without the consent of the Indemnitee.




 




3.             Additional
Indemnification Rights; Nonexclusivity.




 




(a)           Scope.  The Corporation hereby agrees to indemnify
Indemnitee to the fullest extent permitted by Delaware law, notwithstanding
that such indemnification is not specifically authorized by the other
provisions of this Agreement, the Corporation’s Certificate of Incorporation,
the Corporation’s Bylaws or by statute. 
In the event of any change after the date of this Agreement in any
Delaware law, statute or rule which expands the right of a Delaware
corporation to indemnify a member of its Board of Directors or an officer,
employee, agent or fiduciary, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits afforded by such
change.  In the event of any change in
any Delaware law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its Board of Directors or an officer,
employee, agent or fiduciary, such change, to the extent not otherwise required
by such law, statute or rule to be applied to this Agreement, shall have
no effect on this Agreement or the parties’ rights and obligations hereunder
except as set forth in Section 7(a) hereof.




 




(b)           Nonexclusivity.  The indemnification provided by this
Agreement shall be in addition to any rights to which Indemnitee may be
entitled under the Corporation’s Certificate of Incorporation, its Bylaws, any
agreement, any vote of stockholders or disinterested directors, the General
Corporation Law of the State of Delaware, or otherwise.  The indemnification provided under this
Agreement shall continue as to Indemnitee for any action Indemnitee took or did
not take while serving in an indemnified capacity even though Indemnitee may
have ceased to serve in such capacity.




 




4.             No
Duplication of Payments.  The Corporation shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, Certificate of Incorporation, Bylaw or otherwise)
of the amounts otherwise indemnifiable hereunder.




 




5.             Partial
Indemnification and Contribution.




 




(a)           Partial Indemnification.  If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of any expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) incurred by him or her in the investigation, defense,
settlement or appeal of a proceeding, but is not entitled, however, to
indemnification for all of the total amount thereof, then the Corporation shall
nevertheless indemnify the Indemnitee for such total amount except as to the
portion thereof to which the Indemnitee is not entitled to
indemnification.  Without limiting the
foregoing, if the 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 Corporation shall indemnify
Indemnitee against all expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or
matter.  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, shall be deemed to be a successful result as to such
claim, issue or matter.




 




(b)           Contribution.  If the Indemnitee is not entitled to the
indemnification provided in Section 1 for any reason other than the
statutory limitations set forth in the Delaware law, then in respect of any
threatened, pending or completed proceeding in which the Corporation is jointly
liable with the Indemnitee (or would be if joined in such proceeding), the
Corporation shall contribute to the amount of expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by the Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the
Corporation and all officers, directors or employees of the Company, other than
Indemnitee, who are jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding) on the one hand and the Indemnitee on the
other hand from the transaction from which such proceeding arose and (ii) the
relative fault of the Corporation and all officers, directors or employees of
the Company, other than Indemnitee, who are jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding) on the one hand and of
the Indemnitee on the other hand in connection with the events which resulted
in such expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations.  The
relative fault of the Corporation on the one hand and of the Indemnitee on the
other hand shall be determined by reference to, among other things, the
parties’ relative intent to gain personal profit or advantage, knowledge,
access to information and the degree to which their conduct is active or
passive (including, without limitation, any opportunity to correct or prevent
the circumstances resulting in such expenses, judgments, fines or settlement
amounts).  The Corporation agrees that it
would not be just and equitable if contribution pursuant to this Section 5(b) were
determined by pro rata allocation or any other method of allocation that does
not take account of the foregoing equitable considerations.  The Corporation hereby agrees to fully
indemnify and hold Indemnitee harmless from any claims of contribution which
may be brought by officers, directors or employees of the Corporation, other
than Indemnitee, who may be jointly liable with Indemnitee.




 




(c)           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 Corporation, in lieu
of indemnifying Indemnitee, shall 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
Claim in order to reflect (i) the relative benefits received by the
Corporation and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Claim; and/or (ii) the relative fault of the Corporation
(and its directors, officers, employees and agents) and Indemnitee in
connection with such event(s) and/or transaction(s).




 




6.             Liability Insurance.  To the extent the Corporation maintains
liability insurance applicable to directors, officers, employees, agents or
fiduciaries, Indemnitee shall be covered by such policies in such a manner as
to provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Corporation’s directors, if Indemnitee is a director;
or of the Corporation’s officers, if Indemnitee is not a director of the
Corporation but is an officer; or of the Corporation’s key employees, agents or
fiduciaries, if Indemnitee is not an officer or director but is a key employee,
agent or fiduciary.




 

















 




7.             Exceptions.  Any other provision herein
to the contrary notwithstanding, the Corporation shall not be obligated
pursuant to the terms of this Agreement:




 




(a)           Excluded Action or Omissions.  To indemnify Indemnitee for Indemnitee’s
acts, omissions or transactions from which Indemnitee or the Indemnitee may not
be relieved of liability under Delaware law;




 




(b)           Claims Initiated by Indemnitee.  To indemnify or advance expenses to
Indemnitee with respect to Claims initiated or brought voluntarily by
Indemnitee and not by way of defense, except (i) with respect to actions
or proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other agreement or insurance policy or under the
Corporation’s Certificate of Incorporation or Bylaws now or hereafter in effect
relating to Claims for Indemnifiable Events, (ii) in specific cases if the
Board of Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under Section 145 of the Delaware General Corporation
Law, regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance expense payment or insurance recovery, as the
case may be;




 




(c)           Lack of Good Faith.  To indemnify Indemnitee for any expenses
incurred by Indemnitee with respect to any proceeding instituted by Indemnitee
to enforce or interpret this Agreement, if a Delaware court determines that
each of the material assertions made by Indemnitee in such proceeding was not
made in good faith or was frivolous; or




 




(d)           Claims Under Section 16(b).  To indemnify Indemnitee for expenses and the
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or any similar successor statute.




 




8.             Construction
of Certain Phrases.




 




(a)           For purposes of this Agreement,
references to the “Corporation”
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees,
agents or fiduciaries, so that if Indemnitee is or was a director, officer,
employee, agent or fiduciary of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise, Indemnitee shall
stand in the same position under the provisions of this Agreement with respect
to the resulting or surviving corporation as Indemnitee would have with respect
to such constituent corporation if its separate existence had continued.




 




(b)           For purposes of this Agreement, references to “other enterprises”
shall include employee benefit plans; references to “fines” shall include
any excise taxes assessed on Indemnitee with respect to an employee benefit
plan; and references to “serving
at the request of the Corporation” shall include any service as
a director, officer, employee, agent or fiduciary of the Corporation which
imposes duties on, or involves services by, such director, officer, employee,
agent or fiduciary with respect to an employee benefit plan, its participants
or its beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to




 

















 




have
acted in a manner “not
opposed to the best interests of the Corporation” as referred to
in this Agreement.




 




(c)           For purposes of this Agreement a “Change in Control”
shall be deemed to have occurred if (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Corporation or a corporation owned directly or
indirectly by the stockholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation, (A) who is or
becomes the beneficial owner, directly or indirectly, of securities of the
Corporation representing 10% or more of the combined voting power of the
Corporation’s then outstanding Voting Securities, increases his beneficial
ownership of such securities by 5% or more over the percentage so owned by such
person, or (B) becomes the “beneficial owner” (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the Corporation
representing more than 20% of the total voting power represented by the
Corporation’s then outstanding Voting Securities, (ii) during any period
of two (2) consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Corporation and any new
director whose election by the Board of Directors or nomination for election by
the Corporation’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 a majority thereof, or (iii) the
stockholders of the Corporation approve a merger or consolidation of the
Corporation with any other corporation other than a merger or consolidation
which would result in the Voting Securities of the Corporation outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented by the Voting
Securities of the Corporation or such surviving entity outstanding immediately
after such merger or consolidation, or the stockholders of the Corporation
approve a plan of complete liquidation of the Corporation or an agreement for
the sale or disposition by the Corporation of (in one transaction or a series
of transactions) all or substantially all of the Corporation’s assets.




 




(d)           For purposes of this Agreement, “Independent Legal Counsel”
shall mean an attorney or firm of attorneys, selected in accordance with the
provisions of Section 1(b) or Section 1(c) hereof,
who shall not have otherwise performed services for the Corporation or
Indemnitee within the last three (3) years (other than with respect to
matters concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).




 




(e)           For purposes of this Agreement, a “Reviewing Party”
shall mean any appropriate person or body consisting of a member or members of
the Corporation’s Board of Directors or any other person or body appointed by
the Board of Directors, in either case, who is not and was not a party to the
particular Claim for which Indemnitee are seeking indemnification, or
Independent Legal Counsel.




 




(f)            For purposes of this Agreement, “Voting Securities”
shall mean any securities of the Corporation that vote generally in the
election of directors.




 




9.             Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.




 

















 




10.          Binding
Effect; Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Corporation, spouses, heirs, and personal and
legal representatives.  The Corporation
shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all, or a substantial
part, of the business and/or assets of the Corporation, by written agreement in
form and substance satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Corporation would be required to perform if no such succession had taken
place.  This Agreement shall continue in
effect with respect to Claims relating to Indemnifiable Events regardless of
whether Indemnitee continues to serve as a director, officer, employee, agent
or fiduciary of the Corporation or of any other enterprise at the Corporation’s
request.




 




11.          Attorneys’
Fees.  In the event
that any action is instituted by Indemnitee under this Agreement or under any
liability insurance policies maintained by the Corporation to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to
be paid all Expenses incurred by Indemnitee with respect to such action,
regardless of whether Indemnitee is ultimately successful in such action, and
shall be entitled to the advancement of Expenses with respect to such action,
unless, as a part of such action, a Delaware court over such action determines
that each of the material assertions made by Indemnitee as a basis for such
action was not made in good faith or was frivolous.  In the event of an action instituted by or in
the name of the Corporation under this Agreement to enforce or interpret any of
the terms of this Agreement, Indemnitee shall be entitled to be paid all
Expenses incurred by Indemnitee in defense of such action (including costs and
expenses incurred with respect to Indemnitee counterclaims and cross-claims
made in such action), and shall be entitled to the advancement of Expenses with
respect to such action, unless, as a part of such action, a court having
jurisdiction over such action determines that each of Indemnitee material
defenses to such action was made in bad faith or was frivolous.




 




12.          Notice.  All notices and other communications required
or permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given (a) three (3) days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if
delivered by hand, (c) one (1) business day after the business day of
deposit with Federal Express or similar overnight courier, freight prepaid, or (d) one
(2) day after the business day of delivery by facsimile transmission, if
delivered by facsimile transmission, with copy by first class mail, postage
prepaid, and shall be addressed if to Indemnitee, at the Indemnitee address as
set forth beneath Indemnitee signatures to this Agreement and if to the
Corporation at the address of its principal corporate offices (attention:  Secretary) or at such other address as such
party may designate by ten (10) days’ advance written notice to the other
party hereto.




 




13.          Consent to Jurisdiction.  The Corporation and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out
of or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.




 

















 




14.          Severability.  The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a
Delaware court to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted
by Delaware law.  Furthermore, to the
fullest extent possible, the provisions of this Agreement (including, without
limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.




 




15.          Choice
of Law.  This
Agreement shall be governed by and its provisions construed and enforced in
accordance with the laws of the State of Delaware, as applied to contracts
between Delaware residents, entered into and to be performed entirely within
the State of Delaware, without regard to the conflict of laws principles
thereof.




 




16.          Subrogation.  In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.




 




17.          Amendment
and Termination.  No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless it is in writing signed by both 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
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.




 




18.          Integration
and Entire Agreement.  This
Agreement sets forth the entire understanding between the parties hereto and
supersedes and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof between the
parties hereto.  The Corporation
expressly confirms and agrees that it has entered into this Agreement and assumes
the obligations imposed on it hereby in order to induce Indemnitee to serve as
an officer or director of the Corporation, and the Corporation acknowledges
that Indemnitee is relying upon this Agreement in serving a an officer or
director of the Corporation.




 




19.          No Construction as Employment
Agreement.  Nothing
contained in this Agreement shall be construed as giving Indemnitee any right
to be retained in the employ of the Corporation or any of its subsidiaries.




 

















 




IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above written.




 


 




	
   

  	
  CONSONUS TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AGREED TO AND ACCEPTED BY:

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Printed Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Address: