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EXHIBIT 10.9
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("AGREEMENT") is entered into as of the
__
day of _____ 2006 by and between Navitas International Corporation,
Inc., a
Delaware corporation (the "COMPANY") and [Director Name]
("INDEMNITEE").
RECITALS
A.
The Company and Indemnitee recognize the continued difficulty
in
obtaining liability insurance for its directors, officers,
employees, agents and
fiduciaries, the significant increases in the cost of such
insurance and the
general reductions in the coverage of such insurance.
B.
The Company and Indemnitee further recognize the substantial
increase in
corporate litigation in general, subjecting directors, officers,
employees,
agents and fiduciaries to expensive litigation risks at the same
time as the
availability and coverage of liability insurance has been severely
limited.
C.
The Company desires to attract and retain the services of
highly
qualified individuals, such as Indemnitee, to serve the Company
and, in part, in
order to induce Indemnitee to continue to provide services to the
Company,
wishes to provide for the indemnification and advancing of expenses
to
Indemnitee to the maximum extent permitted by law.
D.
In view of the considerations set forth above, the Company desires
that
Indemnitee be indemnified by the Company as set forth herein.
NOW,
THEREFORE, the Company and Indemnitee hereby agree as follows:
1.
Indemnification.
(a) Indemnification of Expenses. The Company shall indemnify
Indemnitee to the fullest extent permitted by law if Indemnitee was
or is or
becomes a party to or witness or other participant in, or is
threatened to be
made a party to or witness or other participant in, any threatened,
pending or
completed action, suit, proceeding or alternative dispute
resolution mechanism,
or any hearing, inquiry or investigation that Indemnitee in good
faith believes
might lead to the institution of any such action, suit, proceeding
or
alternative dispute resolution mechanism, whether civil,
criminal,
administrative, investigative or other (hereinafter a "CLAIM") by
reason of (or
arising in part out of) any event or occurrence related to the fact
that
Indemnitee is or was a director, officer, employee, agent or
fiduciary of the
Company, or any subsidiary of the Company, or is or was serving at
the request
of the Company as a director, officer, employee, agent or fiduciary
of another
corporation, partnership, joint venture, trust or other enterprise,
or by reason
of any action or inaction on the part of Indemnitee while serving
in such
capacity (hereinafter an "INDEMNIFIABLE EVENT") against any and all
expenses
(including attorneys' fees and all other costs, expenses and
obligations
incurred in connection with investigating, defending, being a
witness in or
participating in (including on appeal), or preparing to defend, be
a witness in
or participate in, any such action, suit, proceeding,
alternative
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dispute resolution mechanism, hearing, inquiry or investigation),
judgments,
fines, penalties and amounts paid in settlement (if such settlement
is approved
in advance by the Company, which approval shall not be unreasonably
withheld) of
such Claim and any federal, state, local or foreign taxes imposed
on Indemnitee
as a result of the actual or deemed receipt of any payments under
this Agreement
(collectively, hereinafter "EXPENSES"), including all interest,
assessments and
other charges paid or payable in connection with or in respect of
such Expenses.
Such payment of Expenses shall be made by the Company as soon as
practicable but
in any event no later than five days after written demand by
Indemnitee therefor
is presented to the Company.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the
obligations of the Company under Section 1(a) shall be subject to
the condition
that the Reviewing Party (as described in Section 10(e) hereof)
shall not have
determined (in a written opinion, in any case in which the
Independent Legal
Counsel referred to in Section 1(c) hereof is involved) that
Indemnitee would
not be permitted to be indemnified under applicable law, and (ii)
the obligation
of the Company to make an advance payment of Expenses to Indemnitee
pursuant to
Section 2(a) (an "EXPENSE ADVANCE") shall be subject to the
condition that, if,
when and to the extent that the Reviewing Party determines that
Indemnitee would
not be permitted to be so indemnified under applicable law, the
Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the
Company) for all such amounts theretofore paid; provided, however,
that if
Indemnitee has commenced or thereafter commences legal proceedings
in a court of
competent jurisdiction to secure a determination that Indemnitee
should be
indemnified under applicable law, any determination made by the
Reviewing Party
that Indemnitee would not be permitted to be indemnified under
applicable law
shall not be binding and Indemnitee shall not be required to
reimburse the
Company for any Expense Advance until a final judicial
determination is made
with respect thereto (as to which all rights of appeal therefrom
have been
exhausted or lapsed). Indemnitees' obligation to reimburse the
Company for any
Expense Advance shall be unsecured and no interest shall be charged
thereon. If
there has not been a Change in Control (as defined in Section 10(c)
hereof), the
Reviewing Party shall be selected by the Board of Directors, and if
there has
been such a Change in Control (other than a Change in Control which
has been
approved by a majority of the Company's Board of Directors who were
directors
immediately prior to such Change in Control), the Reviewing Party
shall be the
Independent Legal Counsel referred to in Section 1(c) hereof. If
there has been
no determination by the Reviewing Party or if the Reviewing Party
determines
that Indemnitee substantively would not be permitted to be
indemnified in whole
or in part under applicable law, Indemnitee shall have the right to
commence
litigation seeking an initial determination by the court or
challenging any such
determination by the Reviewing Party or any aspect thereof,
including the legal
or factual bases therefor, and the Company hereby consents to
service of process
and to appear in any such proceeding. Any determination by the
Reviewing Party
otherwise shall be conclusive and binding on the Company and
Indemnitee.
(c) Change in Control. The Company agrees that if there is a Change
in
Control of the Company (other than a Change in Control which has
been approved
by a majority of the Company's Board of Directors who were
directors immediately
prior to such Change in Control) then, with respect to all matters
thereafter
arising concerning the rights of Indemnitees to payments of
Expenses and Expense
Advances under this Agreement or any other agreement or under the
Company's
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Certificate of Incorporation, as amended from time to time, or
Bylaws, as now or
hereafter in effect, Independent Legal Counsel (as defined in
Section 10(d)
hereof) shall be selected by Indemnitee and approved by the Company
(which
approval shall not be unreasonably withheld). Such counsel, among
other things,
shall render its written opinion to the Company and Indemnitee as
to whether and
to what extent Indemnitee would be permitted to be indemnified
under applicable
law and the Company agrees to abide by such opinion. The Company
agrees to pay
the reasonable fees of the Independent Legal Counsel referred to
above and to
fully indemnify such counsel against any and all expenses
(including attorneys'
fees), claims, liabilities and damages arising out of or relating
to this
Agreement or its engagement pursuant hereto.
(d) Mandatory Payment of Expenses. Notwithstanding any other
provision
of this Agreement other than Section 9 hereof, to the extent that
Indemnitee has
been successful on the merits or otherwise, including, without
limitation, the
dismissal of an action without prejudice, in defense of any action,
suit,
proceeding, inquiry or investigation referred to in Section (1)(a)
hereof or in
the defense of any claim, issue or matter therein, Indemnitee shall
be
indemnified against all Expenses incurred by Indemnitee in
connection therewith.
2.
Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all
Expenses
incurred by Indemnitee. The advances to be made hereunder shall be
paid by the
Company to Indemnitee as soon as practicable but in any event no
later than five
days after written demand by Indemnitee therefor to the
Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition
precedent to Indemnitees' right to be indemnified under this
Agreement, give the
Company notice in writing as soon as practicable of any Claim made
against
Indemnitee for which indemnification will or could be sought under
this
Agreement. Notice to the Company shall be directed to the Chief
Executive
Officer of the Company at the address shown on the signature page
of this
Agreement (or such other address as the Company shall designate in
writing to
Indemnitee). In addition, Indemnitee shall give the Company such
information and
cooperation as it may reasonably require and as shall be within
Indemnitees'
power.
(c) No Presumptions; Burden of Proof. 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, shall not create a presumption that Indemnitee did not
meet any
particular standard of conduct or have any particular belief or
that a court has
determined that indemnification is not permitted by applicable law.
In addition,
neither the failure of the Reviewing Party to have made a
determination as to
whether Indemnitee has met any particular standard of conduct or
had any
particular belief, nor an actual determination by the Reviewing
Party that
Indemnitee has not met such standard of conduct or did not have
such belief,
prior to the commencement of legal proceedings by Indemnitee to
secure a
judicial determination that Indemnitee should be indemnified under
applicable
law, shall be a defense to Indemnitee's claim or create a
presumption that
Indemnitee has not met any particular standard of conduct or did
not have any
particular belief. In connection with any determination by the
Reviewing Party
or otherwise as
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to whether Indemnitee is entitled to be indemnified hereunder, the
burden of
proof shall be on the Company to establish that Indemnitee is not
so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the
Company
of a notice of a Claim pursuant to Section 2(b) hereof, the Company
has
liability insurance in effect which may cover such Claim, the
Company shall give
prompt notice of the commencement of such Claim 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
action, suit,
proceeding, inquiry or investigation in accordance with the terms
of such
policies.
(e) Selection of Counsel. In the event the Company shall be
obligated
hereunder to pay the Expenses of any Claim, the Company shall be
entitled to
assume the defense of such Claim with counsel approved by
Indemnitee, which
approval shall not be unreasonably withheld, upon the delivery to
Indemnitee of
written notice of its election so to do. 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
of counsel subsequently incurred by Indemnitee with respect to the
same Claim;
provided that, (i) Indemnitee shall have the right to employ
Indemnitees'
counsel in any such Claim at Indemnitee expense and (ii) if (A) the
employment
of counsel by Indemnitee has been previously authorized by the
Company, (B)
Indemnitee shall have reasonably concluded that there is a conflict
of interest
between the Company and Indemnitee in the conduct of any such
defense, or (C)
the Company shall not continue to retain such counsel to defend
such Claim, then
the fees and expenses of Indemnitee counsel shall be at the expense
of the
Company. The Company
