EXHIBIT 10.1
FORM OF
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, made
and entered into this
day of
,
(“Agreement”), by and between ACT Teleconferencing,
Inc., a Colorado corporation (the “Company”) and
(“Indemnitee”).
WHEREAS, highly competent persons
are becoming more reluctant to serve corporations as directors or
in other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of
their service to and activities on behalf of the corporation,
and
WHEREAS, the Board of Directors of
the Company has determined that the inability to attract and retain
such persons is detrimental to the best interests of the
Company’s shareholders and that the Company should act to
assure such persons that there will be increased certainty of such
protection in the future; and
WHEREAS, it is reasonable, prudent
and necessary for the Company to obligate itself contractually 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; and
WHEREAS, Indemnitee is willing to
serve, continue to serve and/or to take on additional service, for
or on behalf of the Company on the condition that Indemnitee be so
indemnified;
NOW, THEREFORE, in consideration of
the promises, conditions, representations and warranties set forth
herein, including Indemnitee’s commencement of, or continued
service to, the Company, the Company and Indemnitee hereby covenant
and agree as follows:
1. Definitions . For purposes
of this Agreement, the following terms shall have the meaning given
here:
1.1 “Act” shall mean the
Colorado Business Corporation Act as it exists on the date of this
Agreement and as it my be hereinafter amended from time to time;
provided that, in the case of any amendment to the Colorado
Business Corporation Act after the date hereof, when used in
reference to an act or omission occurring prior to the
effectiveness of such amendment, the term “Act” shall
include such amendment only to the extent (i) that the
amendment permits the Company to provide broader indemnification
rights than the Act permitted the Company to provide at the time of
this Agreement and/or prior to the amendment (whichever is broader)
or (ii) as otherwise required by law.
1.2 “Board” shall mean
the Board of Directors of the Company.
1.3 “Corporate Status”
means the status of an individual who is or was a director or
officer of the Company or who, while a director or officer of the
Company, is or was serving at the Company’s request as a
director, officer, agent, associate, employee,
fiduciary,
manager, member, partner, promoter,
or trustee of, or holding any similar position with, another
domestic or foreign corporation, partnership, joint venture, trust,
entity or other enterprise or an employee benefit plan. Without
limitation except as may be required by law, an individual is
considered to be serving an employee benefit plan at the
Company’s request if such individual’s duties to the
Company also impose duties on, or otherwise involve services by,
such individual to the plan or to participants in or beneficiaries
of the plan. The term “director” or
“individual” includes, unless the context requires
otherwise, the estate or personal representative of a deceased
individual or director. The term “Corporate Status”
shall also include any such broader definition as may be provided
in any amendments to the Act after the date hereof.
1.4 “Expenses” shall
include all reasonable attorneys 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, all costs of e-discovery, 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 party or a
witness in a Proceeding. Expenses shall also include Expenses
incurred in connection with any appeal resulting from any
Proceeding, including without limitation the premium, security for
and other costs relating to any cost bond, supersedes bond, or
other appeal bond or its equivalent. Expenses, however, shall not
include any amount paid in settlement by Indemnitee or the amount
of judgments or fines against Indemnitee.
1.5 “Party” shall
include a person who was, is, or is threatened to be made a named
defendant or respondent in a Proceeding.
1.6 “Proceeding” means
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative and
whether formal or informal.
1.7 “Liability” means
the obligation incurred with respect to any Proceeding to pay a
judgment, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), reasonable expenses
(including Expenses), or, subject to Section 6.4(b) hereof,
settlement.
2. Services by Indemnitee .
Indemnitee agrees to serve as a director or officer of the Company
or may serve in both of such capacities. The positions in which
Indemnitee may render services to the Company shall be all those
identified in the meeting minutes of the Company’s
shareholders or directors or both, as the case may be, or in fact
assumed by the Indemnitee at the request of, or with the explicit
or implicit knowing consent of, the Company. Indemnitee may at any
time and for any reason resign from such position(s), subject to
any other contractual obligation or any obligation imposed by
operation of law. Nothing contained in this Agreement shall be
construed as giving Indemnitee any right to be retained in the
employ of the Company or its subsidiaries.
3. D&O Insurance
.
3.1 Coverage . So long as
Indemnitee may be subject to any possible Proceeding by reason of
the fact that Indemnitee is or was a director or officer of the
Company
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or otherwise due to his Corporate
Status, to the extent that the Company maintains an insurance
policy or policies providing director’s and officers’
liability insurance (“D&O Insurance”), Indemnitee
shall be covered by such policy or policies, in accordance with
their terms, to the maximum extent of the coverage applicable to
any then-current director or officer of the Company.
3.2 No Obligation . Nothing
herein shall impose upon the Company the obligation to maintain
D&O Insurance if the Company determines in good faith that such
insurance is not reasonably available, the premium costs for such
insurance are disproportionate to the amount of coverage provided,
or the coverage provided by such insurance is limited by exclusions
so as to provide an insufficient benefit. The Company shall notify
Indemnitee in writing at least 20 days prior to discontinuing or
the expected (or actual) termination or material modification of
any then-current D&O Insurance; provided that failure to comply
with this provision shall not render any such discontinuance or
termination ineffective.
4. Indemnification
.
4.1 Indemnification in
General .
(a) The Company shall hold harmless
and indemnify, and keep indemnified, Indemnitee in accordance with,
and to the fullest extent permitted and/or required by, the Act and
applicable law from and against any Liabilities and reasonable
Expenses actually incurred by Indemnitee in connection with any
Proceeding in which Indemnitee was or is made a Party as a result
of Indemnitee’s Corporate Status.
(b) The obligation of the Company
hereunder to provide indemnification shall apply, notwithstanding
the fact that such indemnification is not specifically authorized
by the other provisions of this Agreement, the Company’s
Articles of Incorporation, the Company’s Bylaws or by
statute. In the event of any change after the date of this
Agreement in any applicable law, statute or rule which expands the
right of a Colorado corporation to indemnify a director or officer
(or a person otherwise as a result of their Corporate Status), it
is the intent and agreement of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law, statute
or rule which narrows the right of a Colorado corporation to
indemnify a director or officer (or a person otherwise as a result
of their Corporate Status), such change, to the extent not
otherwise required by such law, statute or rule to be applied to
this Agreement, shall have no effect on this Agreement or the
parties’ rights and obligations hereunder.
4.2 Indemnification For Expenses
of a Witness . Notwithstanding any other provision of this
Agreement, the Company shall pay or reimburse Expenses actually and
reasonably incurred by Indemnitee in connection with
Indemnitee’s appearance as a witness in a Proceeding by
reason of Indemnitee’s Corporate Status. If required by law,
this provision will only apply to directors of the Company that
have not been named as defendants or respondents in such
Proceeding.
4.3 Limitation .
Notwithstanding the foregoing, the Company shall have no obligation
to indemnify or advance expenses to Indemnitee for (i) any act
or omission which the
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Company is prohibited (to the extent
of such prohibition) by the Act or by law from providing indemnity
or advance of expense; (ii) any Proceeding initiated or
brought voluntarily by Indemnitee and not by way of defense, other
than Proceedings brought to establish or enforce a right to
indemnification under this Agreement, a D&O insurance policy,
the Company’s Articles of Incorporation, the Company’s
Bylaws or a Proceeding which has been authorized by the Board;
(iii) any Expenses incurred by Indemnitee with respect to any
Proceeding instituted by Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that
each of the material assertions made by Indemnitee in such
Proceeding was not made in good faith or was frivolous; and
(iv) any Expenses or payments of profits arising from the
purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as
amended, or any similar or successor statute.
5. Advancement of Expenses .
In the event of any Proceeding in which the Indemnitee is a party
or is involved and which may give rise to a right of
indemnification from the Company pursuant to this Agreement, then,
within twenty (20) days following written request from
Indemnitee, the Company shall pay for or reimburse to Indemnitee,
in accordance with and to the fullest extent permitted and/or
required under the Act, amounts to cover reasonable Expenses
incurred by such Director in such Proceeding in advance of its
final disposition provided that (a) Indemnitee furnishes to
the Company (i) a written affirmation of Indemnitee’s
good faith belief that Indemnitee has met the applicable standard
of conduct set forth herein and the Act, (ii) a written
undertaking, executed by or on behalf of Indemnitee, to repay the
advance if it shall ultimately be determined that Indemnitee did
not meet the applicable s
