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EXHIBIT 10.1
FORM OF OFFICER AND DIRECTOR INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") entered into as of
this ____ day of _______ by and between GlobalBot Corp., a Florida corporation
(the "Company"), and ________("Indemnitee"):
WHEREAS, competent and experienced persons are becoming increasingly
reluctant to serve publicly-held corporations as directors, officers, or in
other capacities unless they are provided with adequate protection through
liability insurance or adequate indemnification against inordinate risks of
claims and actions against them arising out of their service to the corporation;
WHEREAS, the current unavailability, inadequacy, or extraordinary
and/or cost of adequate insurance and the uncertainties relating to
indemnification have increased the difficulty of attracting and retaining such
persons;
WHEREAS, the board of directors of the Company (the "Board") has
determined that the inability to attract and retain such persons is detrimental
to the best interests of the Company's stockholders and that the Company should
act to assure such persons that there will be increased certainty of such
protection in the future;
WHEREAS, the Company is empowered to indemnify its officers, directors,
employees and agents by agreement and to indemnify persons who serve, at the
request of the Company, as directors, officers, employees or agents of other
corporations or enterprises;
WHEREAS, It is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified;
WHEREAS, Indemnitee is willing to serve, or continue to serve and to
take an additional service for or on behalf of the Company on the condition that
he be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and Indemnitee do hereby covenant and
agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Change of Control" means a change in control of the
Company occurring after the Effective Date of a nature that would be
required to be reported in response to Item 1 on Form 8-K (or in
response to any similar item on any similar schedule or form)
promulgated under the Securities Exchange Act of 1934 (the "Act"),
whether or not the Company is then subject to such reporting
requirement; provided, however, that, without limitation, such a Change
of Control shall be deemed to have occurred after the Effective Date
(i) and "person" (as such term is used in Sections 13(d) and 14(d) of
the Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Act),
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directly or indirectly, of securities of the Company representing 20%
or more of the combined voting power of the Company's then outstanding
securities without the prior approval of at least two-thirds of the
members of the Board in office immediately prior to such person
attaining such percentage; (ii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less than a
majority of the Board thereafter; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board (including for purpose any new director whose
election 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 were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board.
(b) "Corporate Status" describes the status of a person who is
or was a director, officer, employee, agent or fiduciary of the Company
or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person is or was
serving at the request of the Company.
(c) "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.
(d) "Effective Date" means the date first above written.
(e) "Expenses" shall include all reasonable attorney's fees,
retainers, court costs, transcript costs, fees 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, or being or preparing to be a witness in a
Proceeding.
(f) "Independent Counsel" means a law firm, or a 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, 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.
(g) "Proceeding" includes any actual or threatened action,
suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether
civil, criminal, administrative or investigate, whether or not
initiated prior to the Effective Date, except a proceeding initiated by
an Indemnitee pursuant to Section 11 of this Agreement to enforce his
rights under this Agreement.
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2. AGREEMENT TO SERVE. Indemnitee agrees to serve as a Director of the
Company. 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). The Company shall have no obligation under this Agreement to
continue Indemnitee in any position with the Company.
3. INDEMNIFICATION -- GENERAL. The Company shall indemnify, and advance
Expenses to, Indemnitee as provided in this Agreement and to the fullest extent
permitted by applicable law in effect on the date hereof and to such greater
extent as applicable law may thereafter from time to time permit. The rights of
Indemnitee provided under the preceding sentence shall include, but shall not be
limited to, the rights set forth in the other sections of this Agreement.
4. THIRD PARTY ACTIONS. Indemnitee shall be entitled to the rights of
indemnification provided in this section 4 if, by reason of his corporate
status, he is, or is threatened to be made, a party to any Proceeding, other
than a Proceeding by or in the right of the Company. Pursuant to this section 4,
Indemnitee shall be indemnified against Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such Proceeding or any claim, issue or matter therein,
if (i) he acted in good faith, (ii) he reasonably believed in the case of
conduct in his official capacity with the Company that his conduct was in the
Company's best interests or in all other cases that his conduct was at least no
opposed to the Company's best interests; (iii) with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was unlawful; and
(iv) with respect to an employee benefit plan, the Indemnitee reasonably
believed his conduct to be in the interests of the participants and/or
beneficiaries of the Plan. Indemnitee shall not be entitled to indemnification
in connection with any proceeding charging improper personal benefit to the
Indemnitee, whether or not involving action in his official capacity, in which
he was judged liable on the basis that personal benefit was improperly received
by him.
5. DIRECT AND DERIVATIVE ACTIONS. Indemnitee shall be entitled to the
rights of indemnification provided in this section 5, by reason of his Corporate
Status, if he is, or is threatened to be made, a party to any Proceeding brought
by or in the right of the Company to procure a judgment in its favor. Pursuant
to this section, Indemnitee shall be indemnified against Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Company in
such event if and only to the extent that the court in which such Proceeding
shall have been brought or is pending, shall determine.
6. INDEMNIFICATION FOR EXPENSES OF AN INDEMNITEE. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of his Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or
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matter. For purposes of this section 6 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.
7. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other
provision of this Agreement, to the extent that Indemnification is, by reason of
his Corporate Status, a witness in any Proceeding, he shall be indemnified
against all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
8. ADVANCEMENT OF EXPENSES. The Company shall advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within 20 days after the receipt by the Company of a statement or
statements from the Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include, be preceded by or accompanied by, as the case may
be, the following: (i) a written affirmation of the Indemnitee's good-faith that
he has met the standards of conduct set forth herein (the "Standard"); (ii) an
undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it
shall be determined that Indemnitee did not meet the Standard or that Indemnitee
is not entitled to be indemnified against such Expenses; and (iii) a
determination is made that the facts then known to those making the
determination would not preclude indemnification.
Indemnitee understands and agrees that the undertaking required by this
section 8(ii) shall be an unlimited general obligation of the Indemnitee.
9. INDEMNIFICATION PROCEDURE.
(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 is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification. The Secretary of
the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to section 9(a) hereof, payment to Indemnitee shall be made
within 10 days. Indemnitee shall cooperate with the Company, including
providing to the Company upon reasonable advance request any
documentation or information, which is not privileged or otherwise,
protected from disclosure with regard to the matter from which the
indemnification arises.
10. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) If a Change of Control shall have occurred, it shall be
presumed that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in
accordance with section 9(a) of this Agreement, and the Company shall
have the
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burden of proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination contrary
to that presumption.
(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 adversely
affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner
which he 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 conduct was
unlawful.
11. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made, 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) payment of indemnification is not made
pursuant to section 5 of this Agreement within 10 days after receipt by
the Company of a written request there for, or (iv) payment of
indemnification is not made within 10 days after a determination has
been made that Indemnitee is entitled to indemnification or such
determination is deemed to have been made pursuant to section 9 or 10
of this Agreement, Indemnitee shall be entitled to an adjudication in
an appropriate court of the State of Florida, or in any other court of
competent jurisdiction, of his 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 11(a).
(b) In the event that a determination shall have been made
that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this section 11 shall be conducted in
all respects, as a de novo trial on the merits and Indemnitee shall not
be prejudiced by reason of that adverse determination. If a Change of
Control shall have occurred, in any judicial proceeding commenced
pursuant to this section 11 the Company shall have the burden of
proving the Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have
been made pursuant to section 9 or 10 of this Agreement that Indemnitee
is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding commenced pursuant to this
section 11, 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.
(d) The Company shall be precluded from asserting in any
judicial proceeding commenced pursuant to this section 11 that the
procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court that the Company
is bound by all the provisions of this Agreement.
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(e) In the event that Indemnitee, pursuant to this section 11,
seeks a judicial adjudication to enforce his rights under, or to
recover damages for breach of, this Agreement, Indemnitee shall be
entitled to recover from the Company, and shall be indemnified by the
Company against, any and all expenses (of the types described in the
definition of Expenses in Section 1 of this Agreement) actually and
reasonably incurred by him in such judicial adjudication, but only if
he prevails therein. If it shall be determined in said judicial
adjudication that Indemnitee is entitled to received part but not all
of the indemnification or advancement of expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication
shall be appropriately prorated.
12. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) 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 Articles of Incorporation, the Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement or any
provision hereof shall be effective as to any Indemnitee with respect
to any action taken or omitted by such Indemnitee in his Corporate
Status prior to such amendment, alteration or repeal.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors,
officers, employees, agents or fiduciaries of the Company or of any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person serves at the request of the
Company, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the
coverage available for any such director, officer, employee or agent
under such policy or policies.
(c) 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.
(d) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to
the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
(e) The Company may, to the full extent authorized by law,
create a trust fund, grant a security interest and/or use other means
(including, without limitation, letters of credit, surety bonds and
other similar arrangements) to ensure the payment of such amounts as
may become necessary to effect indemnification provided hereunder.
13. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (a) six years after the date that Indemnitee shall
have ceased to serve as a director, officer, employee, agent or fiduciary of the
Company or of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at the request of the
Company; or (b) the final termination of all
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pending Proceedings 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 11 of this Agreement relating
thereto.
14. EXCEPTIONS TO INDEMNIFICATION RIGHTS. Notwithstanding any other
provision of this Agreement, except for Indemnification or advancement of
Expenses in a Proceeding to enforce or claim therein to enforce the provisions
of that Agreement, Indemnitee shall not be entitled to Indemnification or
advancement of Expenses with respect to any Proceeding, or any claim therein,
brought or made by him against the Company. Provided further that no right of
indemnification under the provisions set forth herein shall be available to any
Indemnitee unless within 10 days after the later of institution of or learning
of any such Proceeding he shall have offered the Company in writing the
opportunity to handle and defend such Proceeding at its own expense.
15. 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 (b) 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 enforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Agreement.
17. SECTION AND PARAGRAPH HEADINGS. Section and paragraph headings
herein have been inserted for reference only and shall not be deemed to limit or
otherwise affect, in any matter, or be deemed to interpret in whole or in part
any of the terms or provisions of this Agreement.
18. ORAL EVIDENCE. This Agreement supersedes all prior oral and written
agreements between the parties hereto with respect to the subject matter hereof.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, except by a statement in writing signed by the
party or parties against which enforcement or the change, waiver discharge or
termination is sought.
19. NOTICES AND ADDRESSES. All notices, offers, acceptance and any
other acts under this Agreement (except payment) shall be in writing, and shall
be sufficiently given if delivered to the addressees in person, by Federal
Express or similar receipted delivery, by facsimile delivery or, if mailed,
postage prepaid, by certified mail, return receipt requested, as follows:
Indemnitee: ----------------------------------------
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The Company: GlobalBot Corp.
0000 Xxxx Xxxxxxxxxx Xxxx.
Xxxxx #000
Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
20. GOVERNING LAW. This Agreement and any dispute, disagreement, or
issue of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided therein or performance
shall be governed or interpreted according to the laws of the State of Florida.
21. GENDER. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
22. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or to the interpretation, breach or enforcement thereof or any
other dispute between the parties, shall be submitted to one arbitrator and
settled by arbitration in West Palm Beach, Florida, in accordance with the
rules, then obtaining, of the American Arbitration Association. Any reward made
by such arbitrator shall be final, binding, and conclusive on all parties hereto
for all purposes, and judgment may be entered thereon in any court having
jurisdiction thereof.
23. ATTORNEY'S FEES. In the event that there is any controversy or
claim arising out of or relating to this Agreement, or to the interpretation,
breach or enforcement thereof, and any action or proceeding is commenced to
enforce the provisions of this Agreement, the prevailing party shall be entitled
to a reasonable attorney's fee, costs and expenses.
24. ADDITIONAL DOCUMENTS. The parties hereto shall execute such
additional instruments as may be reasonably required by their counsel in order
to carry out the purpose and intent of this Agreement and to fulfill the
obligations of the parties hereunder.
25. SUCCESSORS. Subject to the provisions of this Agreement, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
WITNESS: GlobalBot Corp.
------------------------------- By:
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Name
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Title
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, Officer and Director
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