Exhibit 10.1
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "Agreement") dated as of November
8,
2006 is made by and between CoActive Marketing Group, Inc. a
Delaware
corporation (the "Company"), and ______________________
("Indemnitee").
R E C I T A L S:
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A. The
Company desires to attract and retain the services of
highly qualified individuals as directors, officers, employees and
agents.
B. The
Company's bylaws (the "Bylaws") require that the Company
indemnify its directors, and empowers the Company to indemnify its
officers,
employees and agents, as authorized by the Delaware General
Corporation Law, as
amended (the "Code"), under which the Company is organized and such
Bylaws
expressly provide that the indemnification provided therein is not
exclusive and
contemplates that the Company may enter into separate agreements
with its
directors, officers and other persons to set forth specific
indemnification
provisions.
C.
Indemnitee does not regard the protection currently provided
by applicable law, the Company's governing documents and available
insurance as
adequate under the present circumstances, and the Company has
determined that
Indemnitee and other directors, officers, employees and agents of
the Company
may not be willing to serve or continue to serve in such capacities
without
additional protection.
D. The
Company desires and has requested Indemnitee to serve or
continue to serve as a director, officer, employee or agent of the
Company, as
the case may be, and has preferred this Agreement to Indemnitee as
an additional
inducement to serve in such capacity.
E.
Indemnitee is willing to serve, or to continue to serve, as a
director, officer, employee or agent of the Company, as the case
may be, if
Indemnitee is furnished the indemnity provided for herein by the
Company.
A G R E E M E N T :
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NOW THEREFORE, in consideration of the mutual covenants and
agreements
set forth herein, the parties hereto, intending to be legally
bound, hereby
agree as follows:
1.
Definitions.
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(a) Agent. For
purposes of this Agreement, the term
"agent" of the Company means any person who: (i) is or was a
director, officer,
employee or other fiduciary of the Company or a subsidiary of the
Company; or
(ii) is or was serving at the request or for the convenience of, or
representing
the interests of, the Company or a subsidiary of the Company, as a
director,
officer, employee or other fiduciary of a foreign or domestic
corporation,
partnership, joint venture, trust or other enterprise.
(b) Change in
Control. For purposes of this Agreement,
the term "Change in Control" means:
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(i) the consummation of any consolidation or merger
of the Company into or with another corporation or other legal
person, and as a result of such consolidation or merger less
than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate
by holders of Voting Stock (as defined below) of the Company
immediately prior to such transaction;
(ii) any sale, lease, exchange, or other transfer,
whether in one transaction or any series of related
transactions, of all or significant portions of the assets of
the Company to any other corporation or other legal persons,
less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such sale, lease, exchange, or transfer is
held in the aggregate by the holders of Voting Stock of the
Company immediately prior to such sale, lease, exchange, or
transfers;
(iii) the stockholders of the Company approve any
plan for the liquidation or dissolution of the Company;
(iv) any person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) other than an existing director
of the Company becomes, either directly or indirectly, the
beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of securities representing more than 33% of the
combined voting power of the then-outstanding securities
entitled to vote generally in the election of directors of the
Company ("Voting Stock"); or
(v) if at any time during a fiscal year a majority of
the Board of Directors are replaced by persons who were not
recommended for those positions by at least two-thirds of the
directors of the Company who were directors of the Company at
the beginning of the fiscal year.
(c) Expenses.
For purposes of this Agreement, the term
"expenses" shall be broadly construed and shall include, without
limitation, all
direct and indirect costs of any type or nature whatsoever
(including, without
limitation, all attorneys', witness, or other professional fees and
related
disbursements, and other out-of-pocket costs of whatever nature),
actually and
reasonably incurred by Indemnitee in connection with the
investigation, defense
or appeal of a proceeding or establishing or enforcing a right
to
indemnification under this Agreement, the Code or otherwise, and
amounts paid in
settlement by or on behalf of Indemnitee, but shall not include any
judgments,
fines or penalties actually levied against Indemnitee for such
individual's
violations of law. The term "expenses" shall also include
reasonable
compensation for time spent by Indemnitee for which he is not
compensated by the
Company or any subsidiary or third party (i) for any period during
which
Indemnitee is not an agent, in the employment of, or providing
services for
compensation to, the Company or any subsidiary; and (ii) if the
rate of
compensation and estimated time involved is approved by the
directors of the
Company who are not parties to any action with respect to which
expenses are
incurred, for Indemnitee while an agent of, employed by, or
providing services
for compensation to, the Company or any subsidiary.
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(d)
Proceedings. For purposes of this Agreement, the term
"proceeding" shall be broadly construed and shall include, without
limitation,
any threatened, pending, or completed action, suit, arbitration,
alternate
dispute resolution mechanism, investigation, inquiry,
administrative hearing or
any other actual, threatened or completed proceeding, whether
brought in the
right of the Company or otherwise and whether of a civil,
criminal,
administrative or investigative nature, and whether formal or
informal in any
case, in which Indemnitee was, is or will be involved as a party or
otherwise by
reason of: (i) the fact that Indemnitee is or was a director or
officer of the
Company; (ii) the fact that any action taken by Indemnitee or of
any action on
Indemnitee's part while acting as director, officer, employee or
agent of the
Company; or (iii) 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, employee benefit plan or other
enterprise,
and in any such case described above, whether or not serving in any
such
capacity at the time any liability or expense is incurred for
which
indemnification, reimbursement, or advancement of expenses may be
provided under
this Agreement.
(e)
Subsidiary. For purposes of this Agreement, the term
"subsidiary" means any corporation or limited liability company of
which more
than 50% of the outstanding voting securities or equity interests
are owned,
directly or indirectly, by the Company and one or more of its
subsidiaries, and
any other corporation, limited liability company, partnership,
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, officer,
employee, agent or
fiduciary.
(f)
Independent Counsel. For purposes of this Agreement,
the term "independent counsel" means a law firm, or a partner (or,
if
applicable, member) of such a law firm, that is experienced in
matters of
corporation law and neither presently is, nor in the past five (5)
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.
2.
Agreement to Serve. Indemnitee will serve, or continue to
serve, as a director, officer, employee or agent of the Company or
any
subsidiary, as the case may be, faithfully and to the best of his
or her
ability, at the will of such corporation (or under separate
agreement, if such
agreement exists), in the capacity Indemnitee currently serves as
an agent of
such corporation, so long as Indemnitee is duly appointed or
elected and
qualified in accordance with the applicable provisions of the
bylaws or other
applicable charter documents of such corporation, or until such
time as
Indemnitee tenders his or her resignation in writing; provided,
however, that
nothing contained in this Agreement is intended as an employment
agreement
between Indemnitee and the Company or any of its subsidiaries or to
create any
right to continued employment of Indemnitee with the Company or any
of its
subsidiaries in any capacity.
The Company acknowledges that it has entered into this Agreement
and
assumes the obligations imposed on it hereby, in addition to and
separate from
its obligations to Indemnitee under the Bylaws, to induce
Indemnitee to serve,
or continue to serve, as a director, officer, employee or agent of
the Company,
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and the Company acknowledges that Indemnitee is relying upon this
Agreement in
serving as a director, officer, employee or agent of the
Company.
3.
Indemnification.
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(a)
Indemnification in Third Party Proceedings. Subject
to Section 10 below, the Company shall indemnify Indemnitee to the
fullest
extent permitted by the Code, as the same may be amended from time
to time (but,
only to the extent that such amendment permits Indemnitee to
broader
indemnification rights than the Code permitted prior to adoption of
such
amendment), if Indemnitee is a party to or threatened to be made a
party to or
otherwise involved in any proceeding, for any and all expenses,
actually and
reasonably incurred by Indemnitee in connection with the
investigation, defense,
settlement or appeal of such proceeding.
(b)
Indemnification in Derivative Actions and Direct
Actions by the Company. Subject to Section 10 below, the Company
shall indemnify
Indemnitee to the fullest extent permitted by the Code, as the same
may be
amended from time to time (but, only to the extent that such
amendment permits
Indemnitee to broader indemnification rights than the Code
permitted prior to
adoption of such amendment), if Indemnitee is a party to or
threatened to be
made a party to or otherwise involved in any proceeding by or in
the right of
the Company to procure a judgment in its favor, against any and all
expenses
actually and reasonably incurred by Indemnitee in connection with
the
investigation, defense, settlement, or appeal of such
proceedings.
4.
Indemnification of Expenses of Successful Party.
Notwithstanding any other provision of this Agreement, to the
extent that
Indemnitee has been successful on the merits or otherwise in
defense of any
proceeding or in defense of any claim, issue or matter therein,
including the
dismissal of any action without prejudice, the Company shall
indemnify
Indemnitee against all expenses actually and reasonably incurred in
connection
with the investigation, defense or appeal of such proceeding.
5.
Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a
portion of any expenses actually and reasonably incurred by
Indemnitee in the
investigation, defense, settlement or appeal of a proceeding, but
is precluded
by applicable law or the specific terms of this Agreement to
indemnification for
the total amount thereof, the Company shall nevertheless indemnify
Indemnitee
for the portion thereof to which Indemnitee is entitled.
6.
Advancement of Expenses. To the extent not prohibited by law,
the Company shall advance the expenses incurred by Indemnitee in
connection with
any proceeding, and such advancement shall be made within twenty
(20) days after
the receipt by the Company of a statement or statements requesting
such advances
(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 expenditures made that
would cause
Indemnitee to waive any privilege accorded by applicable law shall
not be
included with the invoice) and upon request of the Company, an
undertaking to
repay the advancement of expenses if and to the extent that it is
ultimately
determined by a court of competent jurisdiction in a final
judgment, not subject
to appeal, that Indemnitee is not entitled to be indemnified by the
Company.
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Advances shall be unsecured, interest free and without regard to
Indemnitee's
ability to repay the expenses. Advances shall include any and all
expenses
actually and reasonably incurred by Indemnitee pursuing an action
to enforce
Indemnitee's right to indemnification under this Agreement, or
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