Untitled Document


Exhibit 10.1

  

 

 SOCKET MOBILE,
  INC.

  [FORM OF] INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement ("Agreement")
  is made as of [date] by and between Socket Mobile, Inc., a Delaware corporation
  (the "Company"), and [name of indemnitee] ("Indemnitee").
  The Indemnification Agreement replaces Indemnification Agreements previously
  in effect.

  

WHEREAS, Indemnitee's service to
  the Company substantially benefits the Company; 

WHEREAS, competent and experienced
  individuals are reluctant to serve as directors or officers of corporations
  or in certain other capacities unless they are provided with adequate protection
  through insurance or indemnification against the risks of claims and actions
  against them arising out of such service;

  

WHEREAS, Indemnitee does not regard
  the protection currently provided by applicable law, the Company's governing
  documents and any insurance as adequate under the present circumstances, and
  Indemnitee may not be willing to continue to serve in such capacities without
  additional protection;

WHEREAS, in order to induce Indemnitee
  to continue to provide services to the Company, it is reasonable, prudent and
  necessary for the Company to contractually obligate itself to indemnify, and
  to advance expenses on behalf of, Indemnitee as permitted by applicable law;
  and

WHEREAS, this Agreement is a supplement
  to and in furtherance of the indemnification provided in the Company's certificate
  of incorporation and bylaws, and any resolutions adopted pursuant thereto, and
  this Agreement shall not be deemed a substitute therefor, nor shall this Agreement
  be deemed to limit, diminish or abrogate any rights of Indemnitee thereunder.

NOW THEREFORE, the Company and Indemnitee
  do hereby agree as follows:

1. Definitions. 

       (a)
  A "Change in Control" shall be deemed to occur upon the earliest to occur
  after the date of this Agreement of any of the following events:

              (i)
  Acquisition of Stock by Third Party. Any Person (as defined below) is
  or becomes the Beneficial Owner (as defined below), directly or indirectly,
  of securities of the Company representing fifteen percent (15%) or more of the
  combined voting power of the Company's then outstanding securities;

              (ii)
  Change in Board Composition. During any period of two (2) consecutive
  years (not including any period prior to the execution of this Agreement), individuals
  who at the beginning of such period constitute the Company's board of directors,
  and any new directors (other than a director designated by a person who has
  entered into an agreement with the Company to effect a transaction described
  in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the board of directors
  or nomination for election by the Company's stockholders was approved by a vote
  of at least two-thirds of the directors then still in office who either were
  directors at the beginning of the period or whose election or nomination for
  election was previously so approved, cease for any reason to constitute at least
  a majority of the members of the Company's board of directors;

 

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                (iii)
  Corporate Transactions. The effective date of a merger or consolidation
  of the Company with any other entity, other than a merger or consolidation which
  would result in the voting securities of the Company outstanding immediately
  prior to such merger or consolidation continuing to represent (either by remaining
  outstanding or by being converted into voting securities of the surviving entity)
  more than 50% of the combined voting power of the voting securities of the surviving
  entity outstanding immediately after such merger or consolidation and with the
  power to elect at least a majority of the board of directors or other governing
  body of such surviving entity;

              (iv)
  Liquidation. The approval by the stockholders of the Company of a complete
  liquidation of the Company or an agreement for the sale or disposition by the
  Company of all or substantially all of the Company's assets; and

              (v)
  Other Events. Any other event of a nature that would be required to be
  reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response
  to any similar item on any similar schedule or form) promulgated under the Securities
  Exchange Act of 1934, as amended, whether or not the Company is then subject
  to such reporting requirement.

              (vi)
  Definitions with Respect to this Section 1(a). For purposes of this Section
  1(a), the following terms shall have the following meanings:

                     (1)
  "Person" shall have the meaning as set forth in Sections 13(d) and 14(d)
  of the Securities Exchange Act of 1934, as amended; provided, however,
  that "Person" shall exclude (i) the Company, (ii) any trustee or other
  fiduciary holding securities under an employee benefit plan of the Company,
  and (iii) any corporation owned, directly or indirectly, by the stockholders
  of the Company in substantially the same proportions as their ownership of stock
  of the Company.

                     (2)
  "Beneficial Owner" shall have the meaning given to such term in Rule
  13d-3 under the Securities Exchange Act of 1934, as amended; provided, however,
  that "Beneficial Owner" shall exclude any Person otherwise becoming a
  Beneficial Owner by reason of (i) the stockholders of the Company approving
  a merger of the Company with another entity or (ii) the Company's board of directors
  approving a sale of securities by the Company to such Person.

       (b)
  "Corporate Status" describes the status of a person who is or was a director,
  trustee, general partner, managing member, officer, employee, agent or fiduciary
  of the Company or any other Enterprise.

       (c)
  "DGCL" means the General Corporation Law of the State of Delaware.       

 

 

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         (d)
  "Disinterested Director" means a director of the Company who is not and
  was not a party to the Proceeding in respect of which indemnification is sought
  by Indemnitee.

       (e)
  "Enterprise" shall mean the Company and any other corporation, partnership,
  limited liability company, joint venture, trust, employee benefit plan or other
  enterprise of which Indemnitee is or was serving at the request of the Company
  as a director, trustee, general partner, managing member, officer, employee,
  agent or fiduciary.

       (f)
  "Expenses" shall include all reasonable attorneys' fees, retainers, court
  costs, transcript costs, fees and costs of experts, witness fees, travel expenses,
  duplicating costs, printing and binding costs, telephone charges, postage, delivery
  service fees, and all other disbursements or expenses of the types customarily
  incurred in connection with prosecuting, defending, preparing to prosecute or
  defend, investigating, being or preparing to be a witness in, or otherwise participating
  in, a Proceeding. Expenses also shall include (i) Expenses incurred in connection
  with any appeal resulting from any Proceeding, including without limitation
  the premium, security for, and other costs relating to any cost bond, supersedeas
  bond or other appeal bond or their equivalent, and (ii) for purposes of Section
  12(c), Expenses incurred by Indemnitee in connection with the interpretation,
  enforcement or defense of Indemnitee's rights under this Agreement or under
  any directors' and officers' liability insurance policies maintained by the
  Company. Expenses, however, shall not include amounts paid in settlement by
  Indemnitee or the amount of judgments or fines against Indemnitee. 

       (g)
  "Independent Counsel" means a law firm, or a partner or member of a law
  firm, that is experienced in matters of corporation law and neither presently
  is, nor in the past five years has been, retained to represent: (i) the Company
  or Indemnitee in any matter material to either such party (other than with respect
  to matters concerning Indemnitee under this Agreement, or matters concerning
  other indemnitees under similar indemnification agreements), or (ii) any other
  party to the Proceeding giving rise to a claim for indemnification hereunder.
  Notwithstanding the foregoing, the term "Independent Counsel" shall not
  include any person who, under the applicable standards of professional conduct
  then prevailing, would have a conflict of interest in representing either the
  Company or Indemnitee in an action to determine Indemnitee's rights under this
  Agreement.

       (h)
  "Proceeding" means any threatened, pending or completed action, suit,
  arbitration, mediation, alternate dispute resolution mechanism, investigation,
  inquiry, administrative hearing or other proceeding, whether brought in the
  right of the Company or otherwise and whether of a civil, criminal, administrative
  or investigative nature, including any appeal therefrom and including without
  limitation any such proceeding pending as of the date of this Agreement, in
  which Indemnitee was, is or will be involved as a party, potential party, non-party
  witness or otherwise by reason of (i) the fact that Indemnitee is or was a director
  or officer of the Company, (ii) any action taken by Indemnitee or any action
  or inaction on Indemnitee's part while acting as a director or officer of the
  Company, or (iii) the fact that he or she is or was serving at the request of
  the Company as a director, trustee, general partner, managing member, officer,
  employee, agent or fiduciary of the Company or any other Enterprise, in each
  case whether or not serving in such capacity at the time any liability or Expense
  is incurred for which indemnification or advancement of expenses can be provided
  under this Agreement.

 

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         (i) Reference to "other enterprises"
  shall include employee benefit plans; references to "fines" shall include
  any excise taxes assessed on a person with respect to any employee benefit plan;
  references to "serving at the request of the Company" shall include any
  service as a director, officer, employee or agent of the Company which imposes
  duties on, or involves services by, such director, officer, employee or agent
  with respect to an employee benefit plan, its participants or beneficiaries;
  and a person who acted in good faith and in a manner he or she reasonably believed
  to be in the best interests of the participants and beneficiaries of an employee
  benefit plan shall be deemed to have acted in a manner "not opposed to the
  best interests of the Company" as referred to in this Agreement.

2. Indemnity in Third-Party Proceedings.
  The Company shall indemnify Indemnitee in accordance with the provisions of
  this Section 2 if Indemnitee is, or is threatened to be made, a party to or
  a participant in any Proceeding, other than a Proceeding by or in the right
  of the Company to procure a judgment in its favor. Pursuant to this Section
  2, Indemnitee shall be indemnified to the fullest extent permitted by applicable
  law against all Expenses, judgments, fines and amounts paid in settlement actually
  and reasonably incurred by Indemnitee or on his or her behalf in connection
  with such Proceeding or any claim, issue or matter therein, if Indemnitee acted
  in good faith and in a manner he or she reasonably believed to be in or not
  opposed to the best interests of the Company and, with respect to any criminal
  action or proceeding, had no reasonable cause to believe that his or her conduct
  was unlawful. 

3. Indemnity in Proceedings by
  or in the Right of the Company. The Company shall indemnify Indemnitee in
  accordance with the provisions of this Section 3 if Indemnitee is, or is threatened
  to be made, a party to or a participant in any Proceeding by or in the right
  of the Company to procure a judgment in its favor. Pursuant to this Section
  3, Indemnitee shall be indemnified to the fullest extent permitted by applicable
  law against all Expenses actually and reasonably incurred by Indemnitee or on
  Indemnitee's behalf in connection with such Proceeding or any claim, issue or
  matter therein, if Indemnitee acted in good faith and in a manner he or she
  reasonably believed to be in or not opposed to the best interests of the Company.
  No indemnification for Expenses shall be made under this Section 3 in respect
  of any claim, issue or matter as to which Indemnitee shall have been adjudged
  by a court of competent jurisdiction to be liable to the Company, unless and
  only to the extent that the Delaware Court of Chancery or any court in which
  the Proceeding was brought 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 expenses
  as the Delaware Court of Chancery or such other court shall deem proper.

4. Indemnification for Expenses
  of a Party Who is Wholly or Partly Successful. To the extent that Indemnitee
  is a party to or a participant in and is successful (on the merits or otherwise)
  in defense of any Proceeding or any claim, issue or matter therein, the Company
  shall indemnify Indemnitee against all Expenses actually and reasonably incurred
  by Indemnitee or on Indemnitee's behalf in connection therewith. To the extent
  permitted by applicable law, if Indemnitee is not wholly successful in such
  Proceeding but is successful, on the merits or otherwise, in defense of one
  or more but less than all claims, issues or matters in such Proceeding, the
  Company shall indemnify Indemnitee against all Expenses actually and reasonably
  incurred by Indemnitee or on Indemnitee's behalf in connection with (a) each
  successfully resolved claim, issue or matter and (b) any claim, issue or matter
  related to any such successfully resolved claim, issue or matter. For purposes
  of this Section 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.

 

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  5. Indemnification for Expenses of a Witness. Notwithstanding any other
  provision of this Agreement, to the extent that Indemnitee is, by reason of
  his or her Corporate Status, a witness in any Proceeding to which Indemnitee
  is not a party, Indemnitee shall be indemnified to the fullest extent permitted
  by applicable law against all Expenses actually and reasonably incurred by Indemnitee
  or on Indemnitee's behalf in connection therewith.

6. Additional Indemnification.

       (a)
  Notwithstanding any limitation in Sections 2, 3 or 4, the Company shall indemnify
  Indemnitee to the fullest extent permitted by applicable law if Indemnitee is
  a party to or is threatened to be made a party to any Proceeding (including,
  if permissible, a Proceeding by or in the right of the Company to procure a
  judgment in its favor) against all Expenses, judgments, fines and amounts paid
  in settlement actually and reasonably incurred by Indemnitee or on his or her
  behalf in connection with the Proceeding.

       (b)
  For purposes of Section 6(a), the meaning of the phrase "to the fullest extent
  permitted by applicable law" shall include, but not be limited to:

              (i)
  to the fullest extent permitted by the provision of the DGCL that authorizes
  or contemplates additional indemnification by agreement, or the corresponding
  provision of any amendment to or replacement of the DGCL; and

              (ii)
  to the fullest extent authorized or permitted by any amendments to or replacements
  of the DGCL adopted after the date of this Agreement that increase the extent
  to which a corporation may indemnify its officers and directors.

7. Exclusions. Notwithstanding any
  provision in this Agreement, the Company shall not be obligated under this Agreement
  to make any indemnity in connection with any Proceeding (or any part of any
  Proceeding):

       (a)
  for which payment has actually been made to or on behalf of Indemnitee under
  any statute, insurance policy or other indemnity provision, except with respect
  to any excess beyond the amount paid under any statute, insurance policy or
  other indemnity provision;

       (b)
  for an accounting or disgorgement of profits made from the purchase and sale
  (or sale and purchase) by Indemnitee of securities of the Company pursuant to
  Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar
  provisions of federal, state or local statutory law or common law, if Indemnitee
  is held liable therefor (including pursuant to any settlement arrangements);

       (c)
  for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based
  or equity-based compensation or of any profits realized by Indemnitee from the
  sale of securities of the Company, as required in each case under the Securities
  Exchange Act of 1934, as amended (including any such reimbursements that arise
  from an accounting restatement of the Company pursuant to Section 304 of the
  Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act"), or the payment
  to the Company of profits arising from the purchase and sale by Indemnitee of
  securities in violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee
  is held liable therefor (including pursuant to any settlement arrangements);

 

 

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         (d) initiated
  by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated
  by Indemnitee against the Company or its directors, officers, employees, agents
  or other indemnitees, unless (i) the Company's board of directors authorized
  the Proceeding (or the relevant part of the Proceeding) prior to its initiation,
  (ii) the Company provides the indemnification, in its sole discretion, pursuant
  to the powers vested in the Company under applicable law, (iii) otherwise authorized
  in Section 12(c) or (iv) otherwise required by applicable law; or

       (e)
  if prohibited by applicable law. 

  

8. Advancement of Expenses.
  The Company shall advance, to the extent not prohibited by law, the Expenses
  incurred by Indemnitee in connection with any Proceeding, and such advancement
  shall be made as soon as reasonably practicable, but in any event no later than
  thirty (30) days, after the receipt by the Company of a written statement or
  statements requesting such advances from time to time (which shall include invoices
  received by Indemnitee in connection with such Expenses but, in the case of
  invoices in connection with legal services, any references to legal work performed
  or to expenditure made that would cause Indemnitee to waive any privilege accorded
  by applicable law shall not be included with the invoice). Advances shall be
  unsecured and interest free and made without regard to Indemnitee's ability
  to repay such advances. Indemnitee hereby undertakes to repay any advance to
  the extent that it is ultimately determined that Indemnitee is not entitled
  to be indemnified by the Company, which undertaking shall itself be sufficient
  without the need for further evaluation of any credit aspects of the undertaking
  or with respect to such advancement. This Section 8 shall not apply to any claim
  made by Indemnitee for which indemnity is excluded pursuant to this Agreement.
  

9. Procedure for Notification
  and Defense of Claim.

       (a)
  Indemnitee shall notify the Company in writing of any matter with respect to
  which Indemnitee intends to seek indemnification or advancement of Expenses
  as soon as reasonably practicable following the receipt by Indemnitee of written
  notice thereof. The written notification to the Company shall include a description
  of the nature of the Proceeding and the facts underlying the Proceeding. The
  failure by Indemnitee to notify the Company hereunder will not relieve the Company
  from any liability which it may have to Indemnitee hereunder or otherwise than
  under this Agreement, and any delay in so notifying the Company shall not constitute
  a waiver by Indemnitee of any rights under this Agreement, except to the extent
  that such failure or delay materially prejudices the Company.

       (b)
  If, at the time of the receipt of a notice of a Proceeding pursuant to the terms
  hereof, the Company has director and officer liability insurance in effect,
  the Company shall give prompt notice of the commencement of the Proceeding to
  the insurers in accordance with the procedures set forth in the respective policies.
  The Company 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 Proceeding in accordance with the terms of such policies.

 

 

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         (c) In the event
  the Company shall be obligated hereunder to make any indemnity in connection
  with a Proceeding, the Company shall be entitled to assume the defense of such
  Proceeding with counsel approved by Indemnitee, which approval shall not be
  unreasonably withheld, upon the delivery to Indemnitee of written notice of
  its election to do so. After delivery of such notice, approval of such counsel
  by Indemnitee and the retention of such counsel by the Company, the Company
  will not be liable to Indemnitee under this Agreement for any fees or expenses
  of counsel subsequently incurred by Indemnitee with respect to the same Proceeding.
  Notwithstanding the Company's assumption of the defense of any Proceeding, the
  Company shall be obligated to pay the fees and expenses of Indemnitee's counsel
  to the extent (i) the employment of counsel by Indemnitee has been previously
  authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
  there is a conflict of interest between the Company and Indemnitee in the conduct
  of any such defense such that Indemnitee needs to be separately represented,
  (iii) the fees and expenses are non-duplicative and reasonably incurred in connection
  with Indemnitee's role in the Proceeding despite the Company's assumption of
  the defense, (iv) the Company is not financially or legally able to perform
  its indemnification obligations or (v) the Company shall not have retained,
  or shall not continue to retain, such counsel to defend such Proceeding. The
  Company shall have the right to conduct such defense as it sees fit in its sole
  discretion. Regardless of any provision in this Agreement, Indemnitee shall
  have the right to employ Indemnitee's counsel in any Proceeding at Indemnitee's
  personal expense. 

       (d)
  Indemnitee shall give the Company such information and cooperation in connection
  with the Proceeding as may be reasonably appropriate.

       (e)
  The Company shall not be liable to indemnify Indemnitee under this Agreement
  for any settlement of any Proceeding without the Company's prior written consent,
  which shall not be unreasonably withheld.

       (f)
  The Company shall not settle any Proceeding (or any part thereof) without Indemnitee's
  prior written consent, which shall not be unreasonably withheld. 

10. Procedure upon Application
  for Indemnification. 

       (a)
  To obtain indemnification under this Agreement, Indemnitee shall submit to the
  Company a written request, including therein or therewith such documentation
  and information as is reasonably available to Indemnitee and as is reasonably
  necessary to determine whether and to what extent Indemnitee is entitled to
  indemnification following the final disposition of such Proceeding. The Company
  shall, as soon as reasonably practicable after receipt of such a request for
  indemnification, advise the board of directors in writing that Indemnitee has
  requested indemnification.

 

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         (b) Upon written
  request by Indemnitee for indemnification, a determination, if required by applicable
  law, with respect to Indemnitee's entitlement thereto shall be made in the specific
  case (i) if a Change in Control shall have occurred, by Independent Counsel
  in a written opinion to the Company's board of directors, a copy of which shall
  be delivered to Indemnitee or (ii) if a Change in Control shall not have occurred,
  (A) by a majority vote of the Disinterested Directors, even though less than
  a quorum of the Company's board of directors, (B) by a committee of Disinterested
  Directors designated by a majority vote of the Disinterested Directors, even
  though less than a quorum of the Company's board of directors, (C) if there
  are no such Disinterested Directors or, if such Disinterested Directors so direct,
  by Independent Counsel in a written opinion to the Company's board of directors,
  a copy of which shall be delivered to Indemnitee or (D) if so directed by the
  Company's board of directors, by the stockholders of the Company. If it is so
  determined that Indemnitee is entitled to indemnification, payment to Indemnitee
  shall be made as soon as reasonably practicable, but in any event no later than
  ten (10) days, after such determination. Indemnitee shall cooperate with the
  person, persons or entity making such determination with respect to Indemnitee's
  entitlement to indemnification, including providing to such person, persons
  or entity upon reasonable advance request any documentation or information which
  is not privileged or otherwise protected from disclosure and which is reasonably
  available to Indemnitee and reasonably necessary to such determination. Any
  costs or expenses (including attorneys' fees and disbursements) reasonably incurred
  by Indemnitee in so cooperating with the person, persons or entity making such
  determination shall be borne by the Company, to the extent permitted by applicable
  law (irrespective of the determination as to Indemnitee's entitlement to indemnification).
  

       (c)
  In the event the determination of entitlement to indemnification is to be made
  by Independent Counsel pursuant to Section 10(b), the Independent Counsel shall
  be selected as provided in this Section 10(c). The Independent Counsel shall
  be selected by the Company's board of directors, except in the case of a Change
  in Control, and the Company shall give written notice to Indemnitee advising
  him or her of the identity of the Independent Counsel so selected. If a Change
  in Control shall have occurred, the Independent Counsel shall be selected by
  Indemnitee and Indemnitee shall give written notice to the Company advising
  it of the identity of the Independent Counsel so selected (unless Indemnitee
  shall request that such selection be made by the Company's board of directors,
  in which event the Company shall provide written notice to the Indemnitee of
  the identity of the Independent Counsel). In either event, Indemnitee or the
  Company, as the case may be, may, within ten (10) days after such written notice
  of selection shall have been given, deliver to the Company or to Indemnitee,
  as the case may be, a written objection to such selection; provided, however,
  that such objection may be asserted only on the ground that the Independent
  Counsel so selected does not meet the requirements of "Independent Counsel"
  as defined in Section 1 of this Agreement, and the objection shall set forth
  with particularity the factual basis of such assertion. Absent a proper and
  timely objection, the person so selected shall act as Independent Counsel. If
  such written objection is so made and substantiated, the Independent Counsel
  so selected may not serve as Independent Counsel unless and until such objection
  is withdrawn or a court has determined that such objection is without merit.
  If, within twenty (20) days after the later of (i) submission by Indemnitee
  of a written request for indemnification pursuant to Section 10(a) hereof and
  (ii) the final disposition of the Proceeding, no Independent Counsel shall have
  been selected without objection, either the Company or Indemnitee may petition
  a court of competent jurisdiction for resolution of any objection which shall
  have been made by the Company or Indemnitee to the other's selection of Independent
  Counsel and for the appointment as Independent 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 Counsel under Section 10(b) hereof. Upon the due commencement
  of any judicial proceeding or arbitration pursuant to Section 12(a) of this
  Agreement, Independent Counsel shall be discharged and relieved of any further
  responsibility in such capacity (subject to the applicable standards of professional
  conduct then prevailing).

 

 

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         (d) The Company
  agrees to pay the reasonable fees and expenses of any Independent Counsel. 

       (e)
  If the Company believes that Indemnitee has not met the standards of conduct
  which make it permissible under applicable law for the Company to indemnify
  Indemnitee for the amounts claimed, the Company may file an action in the Delaware
  Court of Chancery to obtain a declaratory judgment that Indemnitee is not entitled
  under applicable law to receive indemnification or advancement from the Company
  (a "Declaratory Action"). If the Delaware Court of Chancery issues an
  order or judgment in a Declaratory Action that Indemnitee is not entitled under
  applicable law to receive indemnification or advancement from the Company with
  respect to a Proceeding or any claim, issue or matter therein, the Company shall
  have no further obligation under this Agreement, the Company's certificate of
  incorporation or bylaws or other applicable laws, statutes or rules to provide
  indemnification or advances to Indemnitee with respect to such Proceeding, claim,
  issue or matter. In a Declaratory Action, the burden of proof shall be on the
  Company to establish that Indemnitee is not entitled to indemnification or advances.

11. Presumptions and Effect of
  Certain Proceedings.

       (a)
  In making a determination with respect to entitlement to indemnification hereunder,
  to the fullest extent permitted by law, Indemnitee shall be presumed to be entitled
  to indemnification under this Agreement if Indemnitee has submitted a request
  for indemnification in accordance with Section 10(a) of this Agreement, and
  the Company shall, to the fullest extent not prohibited by law, have the burden
  of proof to overcome that presumption in connection with the making by such
  person, persons or entity of any determination contrary to that presumption.
  Neither (i) the failure of the Company, its board of directors, any committee
  or subgroup of the board of directors, Independent Counsel or stockholders to
  have made a determination that indemnification is proper in the circumstances
  because Indemnitee has met the applicable standard of conduct, nor (ii) an actual
  determination by the Company, its board of directors, any committee or subgroup
  of the board of directors, Independent Counsel or stockholders that Indemnitee
  has not met such applicable standard of conduct, shall be a defense to the action
  or create a presumption that Indemnitee has not met the applicable standard
  of conduct.

       (b)
  The termination of any Proceeding or of any claim, issue or matter therein,
  by judgment, order, settlement or conviction, or upon a plea of nolo contendere
  or its equivalent, shall not (except as otherwise expressly provided in this
  Agreement) of itself create a presumption that Indemnitee did not act in good
  faith and in a manner which he or she reasonably believed to be in or not opposed
  to the best interests of the Company or, with respect to any criminal Proceeding,
  that Indemnitee had reasonable cause to believe that his or her conduct was
  unlawful.

 

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         (c) For purposes
  of any determination of good faith, Indemnitee shall be deemed to have acted
  in good faith to the extent Indemnitee relied in good faith on (i) the records
  or books of account of the Enterprise, including financial statements, (ii)
  information supplied to Indemnitee by the officers of the Enterprise in the
  course of their duties, (iii) the advice of legal counsel for the Enterprise
  or its board of directors or counsel selected by any committee of the board
  of directors or (iv) information or records given or reports made to the Enterprise
  by an independent certified public accountant, an appraiser, investment banker
  or other expert selected with reasonable care by the Company or its board of
  directors or any committee of the board of directors. The provisions of this
  Section 11(c) shall not be deemed to be exclusive or to limit in any way the
  other circumstances in which Indemnitee may be deemed to have met the applicable
  standard of conduct set forth in this Agreement. 

       (d)
  The knowledge and actions, or failure to act, of any other director, officer,
  agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes
  of determining the right to indemnification under this Agreement.

12. Remedies of Indemnitee.

       (a)
  Subject to Section 12(d), in the event that (i) a determination is made pursuant
  to Section 10 of this Agreement that Indemnitee is not entitled to indemnification
  under this Agreement, (ii) advancement of Expenses is not timely made pursuant
  to Section 8 of this Agreement, (iii) no determination of entitlement to indemnification
  shall have been made pursuant to Section 10(b) of this Agreement within ninety
  (90) days after receipt by the Company of the request for indemnification, (iv)
  payment of indemnification pursuant to this Agreement is not made within ten
  (10) days after a determination has been made that Indemnitee is entitled to
  indemnification, or (v) in the event that the Company or any other person takes
  or threatens to take any action to declare this Agreement void or unenforceable,
  or institutes any litigation or other action or proceeding designed to deny,
  or to recover from, Indemnitee the benefits provided or intended to be provided
  to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by
  a court of his or her entitlement to such indemnification or advancement of
  Expenses. Indemnitee shall commence such proceeding seeking an adjudication
  within 180 days following the date on which Indemnitee first has the right to
  commence such proceeding pursuant to this Section 12(a); provided, however,
  that the foregoing clause shall not apply in respect of a proceeding brought
  by Indemnitee to enforce his or her rights under Section 4 of this Agreement.
  The Company shall not oppose Indemnitee's right to seek any such adjudication
  in accordance with this Agreement.

       (b)
  In the event that a determination shall have been made pursuant to Section 10(b)
  of this Agreement that Indemnitee is not entitled to indemnification, any judicial
  proceeding or arbitration commenced pursuant to this Section 12 shall be conducted
  in all respects as a de novo trial, or arbitration, on the merits and Indemnitee
  shall not be prejudiced by reason of that adverse determination. 

       (c)
  To the fullest extent permitted by law, the Company shall be precluded from
  asserting in any judicial proceeding or arbitration commenced pursuant to this
  Section 12 that the procedures and presumptions of this Agreement are not valid,
  binding and enforceable and shall stipulate in any such court or before any
  such arbitrator that the Company is bound by all the provisions of this Agreement.
  It is the intent of the Company that Indemnitee not be required to incur legal
  fees or other Expenses associated with the interpretation, enforcement or defense
  of Indemnitee's rights under this Agreement by litigation or otherwise, because
  the cost and expense thereof would substantially detract from the benefits intended
  to be extended to Indemnitee hereunder. To the extent permitted by law, the
  Company shall indemnify Indemnitee against any and all Expenses and, if requested
  by Indemnitee, shall (as soon as reasonably practicable, but in any event no
  later than thirty (30) days, after receipt by the Company of a written request
  therefor) advance such Expenses to Indemnitee that are incurred by Indemnitee
  in connection with any action brought by Indemnitee for indemnification or advancement
  of Expenses from the Company under this Agreement or under any directors' and
  officers' liability insurance policies maintained by the Company, to the extent
  Indemnitee is successful in such action and to the extent not prohibited by
  law.

 

10





         (d) Notwithstanding
  anything in this Agreement to the contrary, no determination as to entitlement
  to indemnification under this Agreement shall be required to be made prior to
  the final disposition of the Proceeding. 

13. Contribution. To the
  fullest extent permissible under applicable law, if the indemnification provided
  for in this Agreement is unavailable to Indemnitee, the Company, in lieu of
  indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
  whether for Expenses, judgments, fines or amounts paid or to be paid in settlement,
  in connection with any claim relating to an indemnifiable event under this Agreement,
  in such proportion as is deemed fair and reasonable in light of all of the circumstances
  of such Proceeding in order to reflect (i) the relative benefits received by
  the Company and Indemnitee as a result of the event(s) and transaction(s) giving
  rise to such Proceeding; and (ii) the relative fault of Indemnitee and the Company
  (and its other directors, officers, employees and agents) in connection with
  such event(s) and transaction(s).

14. Non-exclusivity. The
  rights of indemnification and to receive advancement of Expenses as provided
  by this Agreement shall not be deemed exclusive of any other rights to which
  Indemnitee may at any time be entitled under applicable law, the Company's certificate
  of incorporation or bylaws, any agreement, a vote of stockholders or a resolution
  of directors, or otherwise. No amendment, alteration or repeal of this Agreement
  shall limit or restrict any right of Indemnitee under this Agreement in respect
  of any action taken or omitted by such Indemnitee in his or her Corporate Status
  prior to such amendment, alteration or repeal. To the extent that a change in
  Delaware law, whether by statute or judicial decision, permits greater indemnification
  or advancement of Expenses than would be afforded currently under the Company's
  certificate of incorporation and bylaws and this Agreement, it is the intent
  of the parties hereto that Indemnitee shall enjoy by this Agreement the greater
  benefits so afforded by such change, subject to the restrictions expressly set
  forth herein or therein. Except as expressly set forth herein, no right or remedy
  herein conferred is intended to be exclusive of any other right or remedy, and
  every other right and remedy shall be cumulative and in addition to every other
  right and remedy given hereunder or now or hereafter existing at law or in equity
  or otherwise. The assertion or employment of any right or remedy hereunder,
  or otherwise, shall not prevent the concurrent assertion or employment of any
  other right or remedy.

 

11





  15. No Duplication of Payments. The Company shall not be liable under
  this Agreement to make any payment of amounts otherwise indemnifiable hereunder
  (or for which advancement is provided hereunder) if and to the extent that Indemnitee
  has otherwise actually received such payment under any insurance policy, contract,
  agreement or otherwise.

16. Insurance. To the extent
  that the Company maintains an insurance policy or policies providing liability
  insurance for directors, trustees, general partners, managing members, officers,
  employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee
  shall be covered by such policy or policies to the same extent as the most favorably-insured
  persons under such policy or policies in a comparable position. The Company
  shall, from time to time, make a good faith determination as to whether or not
  it is practicable for the Company to obtain and maintain a policy or policies
  of insurance with reputable insurance companies providing the directors and
  officers with coverage for losses from wrongful acts, or to ensure the Company's
  performance of its indemnification obligations under this Agreement. Among other
  considerations, the Company may weigh the costs of obtaining such insurance
  coverage against the protection afforded by such coverage. Notwithstanding the
  foregoing and without limitation, the Company shall have no obligation to obtain
  or maintain such insurance if the Company determines in good faith that such
  insurance is not reasonably available, if the premium costs for such insurance
  are disproportionate to the amount of coverage provided, if the coverage provided
  by such insurance is limited by exclusions so as to provide an insufficient
  benefit, or if Indemnitee is covered by similar insurance maintained by a parent
  or subsidiary of the Company. 

17. Subrogation. In the event
  of any payment under this Agreement, the Company shall be subrogated to the
  extent of such payment to all of the rights of recovery of Indemnitee, who shall
  execute all papers required and take all action necessary to secure such rights,
  including execution of such documents as are necessary to enable the Company
  to bring suit to enforce such rights.

18. Services to the Company.
  Indemnitee agrees to serve as a director or officer of the Company or, at the
  request of the Company, as a director, trustee, general partner, member, officer,
  employee, agent or fiduciary of another Enterprise, for so long as Indemnitee
  is duly elected or appointed or until Indemnitee tenders his or her resignation.
  Indemnitee may at any time and for any reason resign from such position (subject
  to any other contractual obligation or any obligation imposed by operation of
  law), in which event the Company shall have no obligation under this Agreement
  to continue Indemnitee in such position. This Agreement shall not be deemed
  an employment contract between the Company (or any of its subsidiaries or any
  Enterprise) and Indemnitee. Indemnitee specifically acknowledges that any employment
  with the Company (or any of its subsidiaries or any Enterprise) is at will,
  and Indemnitee may be discharged at any time for any reason, with or without
  cause, with or without notice, except as may be otherwise expressly provided
  in any executed, written employment contract between Indemnitee and the Company
  (or any of its subsidiaries or any Enterprise), any formal severance policies
  adopted by the Company's board of directors or, with respect to service as a
  director or officer of the Company, the Company's certificate of incorporation
  or bylaws or the DGCL. 

19. Duration of Agreement.
  This Agreement shall continue until and terminate upon the later of (a) ten
  (10) years after the date that Indemnitee shall have ceased to serve as a director
  or officer of the Company or as a director, trustee, general partner, managing
  member, officer, employee, agent or fiduciary of any other Enterprise, as applicable;
  or (b) one (1) year after the final termination of any Proceeding, including
  any appeal, then pending in respect of which Indemnitee is granted rights of
  indemnification or advancement of Expenses hereunder and of any proceeding commenced
  by Indemnitee pursuant to Section 12 of this Agreement relating thereto.

 

12





  20. Successors. This Agreement shall be binding upon the Company and
  its successors and assigns, including any direct or indirect successor by purchase,
  merger, consolidation or otherwise to all or substantially all of the business
  or assets of the Company, and shall inure to the benefit of Indemnitee and Indemnitee's
  heirs, executors and administrators. The Company shall require and cause any
  successor (whether direct or indirect by purchase, merger, consolidation or
  otherwise) to all or substantially all of the business or assets of the Company,
  by written agreement, expressly to assume and agree to perform this Agreement
  in the same manner and to the same extent that the Company would be required
  to perform if no such succession had taken place.

21. Severability. If any
  provision or provisions of this Agreement shall be held to be invalid, illegal
  or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability
  of the remaining provisions of this Agreement (including without limitation,
  each portion of any Section of this Agreement containing any such provision
  held to be invalid, illegal or unenforceable, that is not itself invalid, illegal
  or unenforceable) shall not in any way be affected or impaired thereby and shall
  remain enforceable to the fullest extent permitted by law; (b) such provision
  or provisions shall be deemed reformed to the extent necessary to conform to
  applicable law and to give the maximum effect to the intent of the parties hereto;
  and (c) to the fullest extent possible, the provisions of this Agreement (including,
  without limitation, each portion of any Section of this Agreement containing
  any such provision held to be invalid, illegal or unenforceable, that is not
  itself invalid, illegal or unenforceable) shall be construed so as to give effect
  to the intent manifested thereby. 

22. Enforcement. The Company
  expressly confirms and agrees that it has entered into this Agreement and assumed
  the obligations imposed on it hereby in order to induce Indemnitee to serve
  as a director or officer of the Company, and the Company acknowledges that Indemnitee
  is relying upon this Agreement in serving as a director or officer of the Company.

23. Entire Agreement. This
  Agreement constitutes the entire agreement between the parties hereto with respect
  to the subject matter hereof and supersedes all prior agreements and understandings,
  oral, written and implied, between the parties hereto with respect to the subject
  matter hereof; provided, however, that this Agreement is a supplement to and
  in furtherance of the Company's certificate of incorporation and bylaws and
  applicable law, and shall not be deemed a substitute therefor, nor to diminish
  or abrogate any rights of Indemnitee thereunder.

24. Modification and Waiver.
  No supplement, modification or amendment to this Agreement shall be binding
  unless executed in writing by 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 nor shall any waiver constitute a continuing waiver.

25. Notices. All notices,
  requests, demands and other communications under this Agreement shall be in
  writing and shall be deemed to have been duly given if (a) delivered by hand
  and receipted for by the party to whom said notice or other communication shall
  have been directed, (b) mailed by certified or registered mail with postage
  prepaid, on the third business day after the date on which it is so mailed,
  (c) mailed by reputable overnight courier and receipted for by the party to
  whom said notice or other communication shall have been directed, or (d) transmitted
  by way of facsimile or e-mail (with acknowledgement of complete transmission).

 

13





         (a) If to Indemnitee,
  at such address as indicated on the signature page of this Agreement, or such
  other address as Indemnitee shall provide to the Company. 

       (b)
  If to the Company to:

       Socket
  Mobile, Inc.

         39700 Eureka
  Drive

         Newark, California
  94560 

       or
  to any other address as may have been furnished to Indemnitee by the Company.

26. Applicable Law and Consent
  to Jurisdiction. This Agreement and the legal relations among the parties
  shall be governed by, and construed and enforced in accordance with, the laws
  of the State of Delaware, without regard to its conflict of laws rules. Except
  with respect to any arbitration commenced by Indemnitee pursuant to Section
  12(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally
  (i) agree that any action or proceeding arising out of or in connection with
  this Agreement shall be brought only in the Delaware Court of Chancery, and
  not in any other state or federal court in the United States of America or any
  court in any other country, (ii) consent to submit to the exclusive jurisdiction
  of the Delaware Court of Chancery for purposes of any action or proceeding arising
  out of or in connection with this Agreement, (iii) appoint, to the extent such
  party is not otherwise subject to service of process in the State of Delaware,
  The Corporation Trust Company, Wilmington, Delaware as its agent in the State
  of Delaware as such party's agent for acceptance of legal process in connection
  with any such action or proceeding against such party with the same legal force
  and validity as if served upon such party personally within the State of Delaware,
  (iv) waive any objection to the laying of venue of any such action or proceeding
  in the Delaware Court of Chancery, and (v) waive, and agree not to plead or
  to make, any claim that any such action or proceeding brought in the Delaware
  Court of Chancery has been brought in an improper or inconvenient forum.

27. Counterparts. This Agreement
  may be executed in one or more counterparts, each of which shall for all purposes
  be deemed to be an original but all of which together shall constitute one and
  the same Agreement. Only one such counterpart signed by the party against whom
  enforceability is sought needs to be produced to evidence the existence of this
  Agreement.

28. Captions. The headings
  of the paragraphs of this Agreement are inserted for convenience only and shall
  not be deemed to constitute part of this Agreement or to affect the construction
  thereof.

 

(signature page
  follows)



  14



 

IN WITNESS WHEREOF, the parties
  have caused this Agreement to be signed as of the day and year first above written.

 



			
      SOCKET MOBILE,
        INC.

    
			
      a Delaware
        corporation

    
			
      

    
	 	 	 
	 	 	 
			
      

    
			
      ________________________________________

        (Signature)

    
	 	 	 
	 	 	 
			
			
      

    
			
      ________________________________________

        (Print name)

    
			
	 	 	 
	 	 	 
			
			
      ________________________________________

        (Title)

    
			
	 	 	 
	 	 	 
			
			
      [INDEMNITEE
        NAME]

    
			
      

    
			
      

    
	 	 	 
	 	 	 
			
      ________________________________________

        (Signature)

    
			
	 	 	 
	 	 	 
			
      

    
			
      ________________________________________

        (Print name)

    
			
	 	 	 
	 	 	 
			
			
      ________________________________________

        (Street address)

    
			
	 	 	 
	 	 	 
			
			
      ________________________________________

        (City, State and ZIP)