DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENTIndemnification Agreement |
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Exhibit
10.1
DIRECTOR AND OFFICER INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT, dated as of December __, 2007 (this
"Agreement"), is made by and between HOUSERAISING, INC., a
North Carolina corporation (the "Company"), and
_________________________ ("Indemnitee").
RECITALS
A.
It is important to the Company to attract and retain as
directors and officers the most capable persons reasonably
available.
B.
Indemnitee is a director and/or officer of the
Company.
C.
Both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against
directors and officers of companies in today's
environment.
D.
The Company's Amended Articles of Incorporation and By-laws
(together, the "Constituent Documents") do not provide that
the Company will indemnify its directors and officers and will
advance expenses in connection therewith, and Indemnitee's
continued willingness to serve as a director and/or officer of
the Company, or at the Company's request to serve another
entity in any capacity, is based in part on the
Company’s agreement to provide indemnification of
directors and officers by contract.
E.
In recognition of Indemnitee's need for substantial protection
against personal liability in order to encourage Indemnitee's
continued service to the Company or, at the Company's request,
another entity, in an effective manner, and to provide
Indemnitee with express contractual indemnification
(regardless of, among other things, the absence of
indemnification provisions in the Company’s Consituent
Documents), the Company wishes to provide in this Agreement
for the indemnification of Indemnifiable Losses (as defined in
Section 1(d)) and the advancement of Expenses (as defined in
Section 1(c)) to Indemnitee as set forth in this Agreement
and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and
officers' liability insurance policies.
NOW,
THEREFORE, the parties hereby 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
will not be deemed to constitute Affiliates of Indemnitee or
the Indemnitee.
(b)
"CLAIM" means any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative,
arbitrative, investigative or other),
whether instituted by the Company or any other party
(including, without limitation, any governmental entity), or
any inquiry or investigation, whether instituted by the
Company or any other party (including, without limitation, any
governmental entity) that Indemnitee in good faith believes
might lead to the institution of any such action, suit or
proceeding.
(c)
"EXPENSES" includes all attorneys' and experts' fees, expenses
and charges and all other costs, expenses and obligations paid
or incurred in connection with investigating, defending, or
participating (as a party, a witness, or otherwise) in
(including on appeal), or preparing to defend or participate
in, any Claim.
3
(d)
"INDEMNIFIABLE LOSSES" means any and all Expenses, damages,
losses, liabilities, judgments, fines, penalties and amounts
paid or payable in settlement (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 in clause (i) of this sentence, (i) in his
or her capacity as a director, officer, employee or agent of
the Company, any of its Affiliates or any other entity as to
which the Indemnitee is or was serving at the request of the
Company as a director, officer, employee, member, manager,
trustee, agent or any other capacity of another corporation,
limited liability company, partnership, joint venture, trust
or other entity or enterprise, whether or not for profit and
(ii) in respect of any business, transaction or other activity
of any entity referred to in clause (i) of this
sentence.
2.
BASIC INDEMNIFICATION ARRANGEMENT. The Company will indemnify
and hold harmless Indemnitee to the fullest extent permitted
by the laws of the State of North Carolina 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 (but in no case less than the extent permitted
under the laws in effect as of the date hereof) against all
Indemnifiable Losses relating to, resulting from or arising
out of any Claim. The failure by Indemnitee to notify the
Company of such Claim will 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 such failure
results in forfeiture by the Company of substantial defenses,
rights or insurance coverage. Except as provided in Sections 4
and 18, Indemnitee will not be entitled to indemnification
pursuant to this Agreement in connection with any Claim
initiated by Indemnitee against the Company or any director or
officer of the Company unless the Company has joined in or
consented to the initiation of such Claim.
3.
ADVANCEMENT OF EXPENSES. The Indemnitee's right to
indemnification in Section 2 of this Agreement shall include
the right of Indemnitee to be advanced by the Company any
Expenses. If so requested by Indemnitee, the Company will
advance within two business days of such request any and all
Expenses to Indemnitee which Indemnitee reasonably determines
likely to be payable; provided, however, that Indemnitee will
return, without interest, any such advance which remains
unspent at the final conclusion of the Claim to which the
advance related; and provided, further, that, except as
provided in
Section 18, all amounts advanced in respect of such Expenses
shall be repaid to the Company by Indemnitee if it shall
ultimately be determined in a final judgment that Indemnitee
is not entitled to be indemnified for such
Expenses.
4.
INDEMNIFICATION FOR ADDITIONAL EXPENSES. Without limiting the
generality or effect of the foregoing, the Company will
indemnify Indemnitee against and, if requested by Indemnitee,
will within two business days of such request advance to
Indemnitee, any and all attorneys' fees and other Expenses
paid or incurred by Indemnitee in connection with any Claim
asserted or brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this
Agreement or any other agreement or under any provision of the
Company's Constituent Documents now or hereafter in effect
relating to Claims for Indemnifiable Losses and/or (ii)
recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to
such indemnification, advance expense payment or insurance
recovery, as the case may be.
5.
PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company
for some or a portion of any Indemnifiable Loss but not for
all of the total amount thereof, the Company will nevertheless
indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has
been successful on the merits or otherwise in defense of any
or all Claims relating in whole or in part to an Indemnifiable
Loss or in defense of any issue or matter therein, including,
without limitation, dismissal without prejudice, Indemnitee
will be indemnified against all Expenses incurred in
connection therewith. In connection with any determination as
to whether Indemnitee is entitled to be indemnified hereunder,
there will be a presumption that Indemnitee is so entitled,
and the burden of proof shall, to the extent permitted by law,
be on the Company to establish that Indemnitee is not so
entitled.
4
6.
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
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