Exhibit 10.5


 


DIRECTOR INDEMNIFICATION AGREEMENT


 


THIS
DIRECTOR INDEMNIFICATION AGREEMENT (this “Agreement”), is executed this      
day of November, 2009, by and between InfoLogix, Inc., a Delaware
corporation (the “Company”),
and                      ,
a director of the Company (the “Indemnitee”).


 


RECITALS


 


WHEREAS,
in recognition of Indemnitee’s need for substantial protection against personal
liability, to ensure Indemnitee’s continued service to the Company in an
effective manner, and to provide Indemnitee with express contractual
indemnification (regardless of, among other things, any amendment to or
revocation of the Company’s Certificate of Incorporation or By-Laws
(collectively, the “Corporate
Documents”), any change in the composition of the Company’s Board of
Directors (the “Board”),
or any business transaction involving the Company), the Company and the
Indemnitee desire to enter into this Agreement to provide for the
indemnification of and the advancement of Expenses (as defined in Section 1(d))
to Indemnitee as set forth in this Agreement and for the continued coverage of
Indemnitee under the Company’s directors’ and officers’ liability insurance
policies.


 


NOW,
THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:


 


1.                                       Certain
Definitions. In addition to terms defined elsewhere herein, the
following terms have the following meanings when used in this Agreement with
initial capital letters:


 


(a)                                  “Affiliate” has the meaning given
to that term in Rule 405 under the Securities Act of 1933; provided, however, that for purposes of this Agreement, the
Company and its subsidiaries shall not be deemed to constitute Affiliates of
Indemnitee or the Indemnitee.


 


(b)                                 “Business
Day” means any day except Saturday, Sunday and any day which is a federal
holiday or a day on which banking institutions in the State of New York and the
State of California are authorized or required by law or other governmental
action to close.


 


(c)                                  “Claim” means any threatened,
pending or completed action, suit or proceeding, or any inquiry or
investigation, whether instituted, made or conducted by the Company or any
other party, including without limitation any governmental entity, that
Indemnitee reasonably determines in good faith might lead to the institution of
any such action, suit or proceeding, whether civil, criminal, administrative,
investigative or other.  Notwithstanding
anything to the contrary set forth in this Agreement, the term “Claim” shall not
include any action or proceeding commenced by Indemnitee.


 


(d)                                 “Expenses” includes reasonable
attorneys’ and experts’ fees, expenses and charges and all other reasonable
costs, expenses and obligations paid or 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 Claim;
provided that attorneys’ fees, expenses, and charges shall not constitute
Expenses if and to the extent this Agreement or law provides that the Company
is not liable therefor.


 


(e)                                  “Indemnifiable Losses” means any
and all damages, losses, liabilities, judgments, fines, penalties and amounts
paid in a settlement entered into in compliance with this Agreement (including
without limitation all interest, assessments and other charges paid or payable
in connection with or in respect of any of the foregoing) relating to,
resulting from or arising out of any act or failure to act by the Indemnitee,
or his or her status as any person referred to herein, in his or her capacity
as a 


 

















 


director,
officer, employee or agent of the Company or any of its Affiliates, other than
Hercules Technology I, LLC (“HTI”) and its Affiliates, or is or was serving
while a director of the Company at the request of the Company as a director,
officer, employee, agent, fiduciary or other representative of another
corporation (for profit or not-for-profit), limited liability company,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise (“Corporate Status”).


 


2.                                       Indemnification.


 


(a)                                  Except as
provided herein, the Company shall indemnify and hold harmless Indemnitee, to
the fullest extent permitted by the laws of the State of Delaware in effect on
the date hereof or as such laws may from time to time hereafter be amended to
increase the scope of such permitted indemnification, against all Expenses and
Indemnifiable Losses (collectively, “Losses”)
relating to, resulting from or arising out of any Claim other than a Claim by
or in the right of the Company.


 


(b)                                 Except as
provided herein, the Company shall indemnify and hold harmless Indemnitee, to
the fullest extent permitted by the laws of the State of Delaware in effect on
the date hereof or as such laws may from time to time hereafter be amended to
increase the scope of such permitted indemnification, against all Expenses
relating to, resulting from or arising out of any Claim brought by or in the
right of the Company in which Indemnitee is a party or participant by reason of
his Corporate Status.


 


(c)                                  If Indemnitee
is entitled under any provision of this Agreement to indemnification by the
Company for a portion of any Losses or Expenses, as applicable, but not for the
entire total amount thereof, the Company will nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.  If Indemnitee is not wholly successful in a
Claim, but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Claim, the Company shall
indemnify Indemnitee against all Losses or Expenses, as applicable, incurred by
Indemnitee in connection with each successfully resolved claim, issue or
matter.  For purposes of this section, the
termination of any claim, issue or matter in such a Claim by dismissal, with or
without prejudice, shall be deemed to be a successful result as to such claim,
issue or matter.


 


3.                                       Advances.  If requested by Indemnitee pursuant to Section 4
hereof, the Company will within five (5) Business Days of such request
advance to Indemnitee, any Expenses paid or incurred by Indemnitee in
connection with any Claim for Losses for (i) indemnification or advance
payment of Expenses by the Company under this Agreement or any other agreement
or under any provision of the Corporate Documents now or hereafter in effect
relating to Losses and/or (ii) recovery under any directors’ and officers’
liability insurance policies maintained by the Company.  Indemnitee hereby agrees and undertakes to
reimburse the Company for any advanced Expenses that remain unspent at the
final conclusion of the Claim to which such advance relates and repay any
advanced Expenses if the Indemnitee is ultimately determined by final order of
a court of competent jurisdiction not to be entitled to such advanced Expenses
or payment of insurance recovery, as the case may be.


 


4.                                       Notification of
Claim; Procedure for Payment.  Promptly after receipt by Indemnitee of
notice of the commencement of any Claim, Indemnitee shall, if a claim thereof
is to be made against the Company hereunder, notify the Company of the
commencement thereof.  The failure by
Indemnitee to notify the Company of such Claim shall not relieve the Company
from any liability hereunder unless, and only to the extent that, the Company
did not otherwise learn of the Claim and the Indemnitee’s failure results in
forfeiture by the Company of defenses, rights or insurance coverage.


 


Indemnitee
shall submit to the Company a written request specifying in detail the Losses
for which Indemnitee seeks payment or advancement hereunder and the basis for
the request.  The Company 


 

















 


shall
pay such Losses to which Indemnitee is entitled to be reimbursed hereunder to
Indemnitee within five (5) Business Days of receipt of such 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 or advances hereunder.


 


5.                                       No Other
Presumption.  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 nolo
contendere or its equivalent, will 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 applicable
law.


 


6.                                       Remedies.  If Indemnitee makes a request for Losses
under Section 5 above and the Company fails to make such payment or
advance in a timely manner pursuant to the terms of this Agreement, Indemnitee
may petition any court of competent jurisdiction to enforce the Company’s
obligations under this Agreement.  In any
judicial proceeding brought under this section, the Company shall have the
burden of proving that Indemnitee is not entitled to payment of Losses
hereunder.


 


The
Company shall 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 this section to
the extent Indemnitee is successful on the merits or otherwise.


 


7.                                       Non-Exclusivity.  The rights of Indemnitee hereunder will be in
addition to any other rights Indemnitee may have under the Corporate Documents,
or the substantive  laws of the Company’s  jurisdiction of incorporation, any other
contract or otherwise (collectively, “Other Indemnity Provisions”); provided, however,
that (i) to the extent that Indemnitee otherwise would have any greater
right to indemnification under any Other Indemnity Provision, Indemnitee will
be deemed to have such greater right hereunder and (ii) to the extent that
any change is made to any Other Indemnity Provision which permits any greater
right to indemnification than that provided under this Agreement as of the date
hereof, Indemnitee will be deemed to have such greater right hereunder. The
Company will not adopt any amendment to any of the Corporate Documents the
effect of which would be to deny, diminish or encumber Indemnitee’s right to
indemnification under this Agreement or any Other Indemnity Provision.


 


8.                                       Liability
Insurance and Funding.  The
Company will maintain an insurance policy or policies providing directors’ and
officers’ liability insurance and Indemnitee will be covered by such policy or
policies, in accordance with its or their terms, to the maximum extent of the
coverage provided for any officer or director of the Company.  The Company may, but will not be required to,
create a trust fund, grant a security interest or use other means, including
without limitation a letter of credit, to ensure the payment of such amounts as
may be necessary to satisfy its obligations to indemnify and advance Expenses
pursuant to this Agreement.


 


9.                                       Subrogation.  In the event of payment under this Agreement,
the Company will be subrogated to the extent of such payment to all of the
related rights of recovery of Indemnitee against other persons or entities
(other than Indemnitee’s successors). The Indemnitee will execute all papers
reasonably required to evidence such rights of recovery (all of Indemnitee’s
reasonable Expenses, including attorneys’ fees and charges, related thereto to
be reimbursed by or, at the option of Indemnitee, advanced by the Company).


 


10.                                 No Duplication
of Payments.  The Company
will not be liable under this Agreement to make any payment in connection with
any Indemnifiable Loss made against Indemnitee to the extent Indemnitee has
otherwise actually received payment under any insurance policy, the Corporate 


 

















 


Documents
and Other Indemnity Provisions or otherwise of the amounts otherwise
indemnifiable hereunder, provided if any such payment is insufficient to pay in
full any Indemnifiable Loss, the Company shall be liable to the Indemnitee for
such unpaid Indemnifiable Loss, and provided further that the Indemnitee shall
promptly repay to the Company amounts received under an insurance policy to the
extent such payments would have reduced the amount  payable to the Indemnitee pursuant to this Section 9
had such amounts been received by Indemnitee prior to the Company making a
payment to the Indemnitee hereunder.


 


11.                                 Defense of
Claims.  The Company will be entitled
to participate in the defense of any Claim or to assume the defense thereof,
with counsel reasonably satisfactory to the Indemnitee, provided that in the
event that (i) the use of counsel chosen by the Company to represent
Indemnitee would present such counsel with an actual or potential conflict, (ii) the
named parties in any such Claim (including any impleaded parties) include both
the Company and Indemnitee and Indemnitee shall conclude, upon the advice of
counsel, that there may be one or more legal defenses available to him or her
that are different from or in addition to those available to the Company, or (iii) any
such representation by the Company would be precluded under the applicable
standards of professional conduct then prevailing, then Indemnitee will be
entitled to retain separate counsel at the Company’s expense.  The Indemnitee will not, without the prior
written consent of the Company (not to be unreasonably withheld), effect any
settlement of any threatened or pending Claim to which the Company is or could
have been a party.  The Company will not,
without the prior written consent of the Indemnitee (not to be unreasonably
withheld), effect any settlement of any threatened or pending Claim to which
the Indemnitee is or could have been a party unless such settlement solely
involves the payment of money and includes an unconditional release of the
Indemnitee from all liability on any claims that are the subject matter of such
Claim.


 


12.                                 Priority of
Indemnification Obligations.  The Company hereby agrees (i) that it is
the indemnitor of first resort (i.e., its obligations to Indemnitee are primary
and any obligation of HTI) to advance Expenses or to provide indemnification
for the same Expenses or Indemnifiable Losses incurred by Indemnitee hereunder
are secondary), (ii) that it shall be required to advance the full amount
of Expenses incurred by Indemnitee and shall be liable for the full amount of
all Indemnifiable Losses to the extent required by the terms of this Agreement
and the Corporate Documents, without regard to any rights Indemnitee may have
against HTI and (iii) that it irrevocably waives, relinquishes and
releases HTI from any and all claims against HTI for contribution or
subrogation in respect thereof.  The
Company further agrees that no advancement or payment by HTI on behalf of Indemnitee
with respect to any claim for which Indemnitee has sought indemnification from
the Company shall affect the foregoing and HTI shall have a right of
contribution and/or be subrogated to the extent of such advancement or payment
to all of the rights of recovery of Indemnitee against the Company.  The Company and Indemnitee agree that HTI is
an express third party beneficiary of the terms of this Section 12.


 


13.
                              Successors and
Binding Agreement.


 


(a)                                  This Agreement
shall be binding upon the Company and its successors and assigns, including,
without limitation, any person acquiring directly or indirectly all or
substantially all of the business or assets of the Company whether by purchase,
merger, consolidation, reorganization or otherwise (and such successor will
thereafter be deemed the “Company”
for purposes of this Agreement).


 


(b)                                 This Agreement
will inure to the benefit of and be enforceable by the Indemnitee’s personal or
legal representatives, executors, administrators, successors, heirs, distributees,
legatees and other successors.


 


(c)                                  The respective
rights and obligations of the Company and Indemnitee set forth herein may not
be assigned or delegated without the prior written consent of the other party.


 

















 


14.                                 Notices.  For all purposes of this Agreement, all
communications, including without limitation notices, consents, requests or
approvals, required or permitted to be given hereunder will be in writing and
will be deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission or via email by PDF, or five (5) Business
Days after having been mailed by United States registered or certified mail,
return receipt requested, postage prepaid or one Business Day after having been
sent for next-day delivery by a nationally recognized overnight courier
service, addressed to the Company (to the attention of the Secretary of the
Company) and to the Indemnitee at the addresses shown on the signature page hereto,
or to such other address as any party may have furnished to the other in
writing and in accordance herewith, except that notices of changes of address
will be effective only upon receipt.


 


15.                                 Governing Law.  The validity, interpretation, construction
and performance of this Agreement will be governed by and construed in
accordance with the substantive laws of the State of Delaware, without giving
effect to the principles of conflict of laws of such State.


 


16.                                 Validity.  If any provision of this Agreement or the
application of any provision hereof to any person or circumstance is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement
and the application of such provision to any other person or circumstance will
not be affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent, and only to the extent, necessary to
make it enforceable, valid or legal.  If
this Agreement or any portion thereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall nevertheless
indemnify Indemnitee to the full extent permitted by any applicable portion of
this Agreement that shall not have been invalidated and to the fullest extent
permitted by applicable law.


 


17.                                 Amendment;
Waiver.  No provision of this Agreement
may be waived, modified or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Indemnitee and the Company.  No waiver by either party hereto at any time
of any breach by the other party hereto or compliance with any condition or
provision of this Agreement to be performed by such other party will be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time.  No agreements
or representations, oral or otherwise, expressed or implied with respect to the
subject matter hereof have been made by either party that is not set forth
expressly in this Agreement. References to Sections are to references to
Sections of this Agreement.


 


18.                                 Counterparts.  This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.


 


19.                                 Certain
Interpretive Matters.  No
provision of this Agreement will be interpreted in favor of, or against, either
of the parties hereto by reason of the extent to which any such party or its
counsel participated in the drafting thereof or by reason of the extent to
which any such provision is inconsistent with any prior draft hereof or thereof.  The Company expressly confirms and agrees
that it has entered into this Agreement in order to induce Indemnitee to serve
as a director of the Company and acknowledges that Indemnitee is relying upon
this Agreement in continuing in such capacity.


 


** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK **


 

















 


IN
WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly
authorized representative to execute this Agreement as of the date first
written above.


 


 


	
   

  	
  “Company”

  
	
   

  	
   

  
	
   

  	
  INFOLOGIX,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “Indemnitee”

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF DIRECTOR]

  
	
   

  	
   

  
	
   

  	
  Address:
  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Fax:

  
	
   

  	
  Email:

  



 


Signature Page to Indemnification Agreement