Exhibit 10.1
ENGLOBAL CORPORATION
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this "Agreement") is made as of June
19,
2008, by and between ENGlobal Corporation, a Nevada corporation
(the "Company"),
and _________________ ("Indemnitee").
R E C I T A L S
WHEREAS, the Company and Indemnitee recognize the increasing
difficulty in
obtaining directors' and officers' liability insurance, the
significant
increases in the cost of such insurance and the general reductions
in the
coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the
substantial
increase in corporate litigation in general, subjecting officers
and directors
to expensive litigation risks at the same time as the availability
and coverage
of liability insurance has been severely limited; and
WHEREAS, the Company desires to attract and retain the services of
highly
qualified individuals, such as Indemnitee, to serve as officers and
directors of
the Company and to indemnify its officers and directors so as to
provide them
with the maximum protection permitted by law.
NOW,
THEREFORE, in consideration for Indemnitee's services as an officer
or
director of the Company, the Company and Indemnitee hereby agree as
follows:
1.
Indemnification.
(a) Third Party Proceedings. The Company shall indemnify Indemnitee
if
Indemnitee is or was a party or is threatened to be made a party to
any
threatened, pending or completed action, suit, proceeding or any
alternative
dispute resolution mechanism, whether civil, criminal,
administrative or
investigative (other than an action by or in the right of the
Company) by reason
of the fact that Indemnitee is or was a director, officer, employee
or agent of
the Company, or any subsidiary of the Company, or by reason of the
fact that
Indemnitee is or was serving at the request of the Company as a
director,
officer, employee or agent of another corporation, partnership,
joint venture,
trust or other enterprise, against expenses (including reasonable
attorneys'
fees), judgments, fines and amounts paid in settlement (if such
settlement is
approved in advance by the Company, which approval shall not be
unreasonably
withheld) actually and reasonably incurred by Indemnitee in
connection with such
action, suit or proceeding if Indemnitee is not liable pursuant to
Nevada
Revised Statutes ("NRS") ss. 78.138, or if Indemnitee acted in good
faith and in
a manner Indemnitee 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 Indemnitee's conduct
was
unlawful. The termination of any action, suit or proceeding by
judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent,
does not, of itself, create a presumption that Indemnitee is liable
pursuant to
NRS ss. 78.138 or did not act in good faith and in a manner which
Indemnitee
reasonably believed to be in or not opposed to the best interests
of the
Company, or that, with respect to any criminal action or
proceeding, Indemnitee
had reasonable cause to believe that Indemnitee's conduct was
unlawful.
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(b) Proceedings By or in the Right of the Company. The Company
shall
indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made
a party to any threatened, pending or completed action or suit by
or in the
right of the Company or any subsidiary of the Company to procure a
judgment in
its favor by reason of the fact that Indemnitee is or was a
director, officer,
employee or agent of the Company, or any subsidiary of the Company,
or by reason
of the fact that Indemnitee is or was serving at the request of the
Company as a
director, officer, employee or agent of another corporation,
partnership, joint
venture, trust or other enterprise, against expenses (including
amounts paid in
settlement and reasonable attorneys' fees) actually and reasonably
incurred by
Indemnitee in connection with the defense or settlement of such
action or suit
if Indemnitee is not liable pursuant to NRS ss. 78.138 or
Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in
or not
opposed to the best interests of the Company, except that no
indemnification
shall be made for any claim, issue or matter as to which Indemnitee
has been
adjudged by a court of competent jurisdiction, after exhaustion of
all appeals
therefrom, to be liable to the Company or for amounts paid in
settlement to the
Company, unless and only to the extent that the court in which such
action or
suit was brought or other court of competent jurisdiction
determines upon
application that in view of all the circumstances of the case,
Indemnitee is
fairly and reasonably entitled to indemnity for such expenses as
the court deems
proper.
(c) Mandatory Payment of Expenses. To the extent that Indemnitee
has
been successful on the merits or otherwise in defense of any
action, suit or
proceeding referred to in Sections 1(a) and 1(b), or in defense of
any claim,
issue or matter therein, Indemnitee shall be indemnified against
expenses
(including reasonable attorneys' fees) actually and reasonably
incurred by
Indemnitee in connection therewith.
2.
Agreement to Serve. In consideration of the protection afforded by
this
Agreement, if Indemnitee is a director of the Company he agrees to
serve at
least for the 90 days after the effective date of this Agreement as
a director
and not to resign voluntarily during such period without the
written consent of
a majority of the Board of Directors. If Indemnitee is an officer
of the Company
not serving under an employment contract, he agrees to serve in
such capacity at
least for the 90 days after the effective date of this Agreement
and not to
resign voluntarily during such period without the written consent
of a majority
of the Board of Directors. Following the applicable period set
forth above,
Indemnitee agrees to continue to serve in such capacity at the will
of the
Company (or under separate agreement, if such agreement exists) so
long as he is
duly appointed or elected and qualified in accordance with the
applicable
provisions of the Bylaws of the Company or any subsidiary of the
Company or
until such time as he tenders his resignation in writing. Nothing
contained in
this Agreement is intended to create in Indemnitee any right to
continued
employment.
3.
Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all
expenses
incurred by Indemnitee in connection with the investigation,
defense, settlement
or appeal of any civil or criminal action, suit or proceeding
referenced in
Section 1(a) or 1(b) (but not amounts actually paid in settlement
of any such
action, suit or proceeding). Indemnitee hereby undertakes to repay
such amounts
advanced only if, and to the extent that, it is ultimately
determined by a court
of competent jurisdiction that Indemnitee is not entitled to be
indemnified by
the Company as authorized hereby.
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(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition
precedent to his right to be indemnified under this Agreement, give
the Company
written notice as soon as practicable of any claim for which
Indemnitee will or
could seek indemnification under this Agreement. In addition,
Indemnitee shall
give the Company such information and cooperation as it may
reasonably require
and as shall be within Indemnitee's power.
(c) Procedure. Any indemnification and advances provided for in
Section 1 and this Section 3 shall be made no later than 30 days
after receipt
of the written request of Indemnitee, provided that a determination
is made
within such 30-day period that, as to Indemnitee's specific
case,
indemnification of Indemnitee is proper in the circumstances. Such
determination
shall be made: (a) by the Company's stockholders; (b) by the
Company's Board of
Directors by majority vote of a quorum consisting of directors who
were not
parties to the action, suit or proceeding; (c) if a majority vote
of a quorum
consisting of directors who were not parties to the action, suit or
proceeding
so orders, by independent legal counsel in a written opinion; or
(d) if a quorum
consisting of directors who were not parties to the action, suit or
proceeding
cannot be obtained, by independent legal counsel in a written
opinion. If a
claim under this Agreement, under any statute, or under any
provision of the
Company's Articles of Incorporation or Bylaws providing for
indemnification, is
not paid in full by the Company within 30 days after a written
request for
payment thereof has first been received by the Company, Indemnitee
may, but need
not, at any time thereafter bring an action against the Company to
recover the
unpaid amount of the claim and, subject to Sections 8 and 9(g) of
this
Agreement, Indemnitee shall also be entitled to be paid for the
expenses
(including reasonable attorneys' fees) of bringing such action. It
shall be a
defense to any such action (other than an action brought to enforce
a claim for
expenses incurred in connection with any action, suit or proceeding
in advance
of its final disposition) that Indemnitee has not met the standards
of conduct
which make it permissible under applicable law for the Company to
indemnify
Indemnitee for the amount claimed. However, Indemnitee shall be
entitled to
receive interim payments of expenses pursuant to Section 3(a)
unless and until
such defense may be finally adjudicated by court order or judgment
from which no
further right of appeal exists. It is the parties' intention that
if the Company
contests Indemnitee's right to indemnification, the question of
Indemnitee's
right to indemnification shall be for a court of competent
jurisdiction to
decide, and neither the failure of the Company (including its Board
of
Directors, any committee or subgroup of the Board of Directors,
independent
legal counsel, or its stockholders) to have made a determination
that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee
has met the applicable standard of conduct required by applicable
law, nor an
actual determination by the Company (including it Board of
Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or
its stockholders) that Indemnitee has not met such applicable
standard of
conduct, shall create a presumpti
