ICOA INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made and
entered
into this 26th day of October, 2005,
between ICOA, Inc., a Nevada corporation
(the "Company"), and Stephen Cummings
("Indemnitee").
A. Indemnitee, as a member of the Company's Board of Directors
and/or
an officer of the Company, performs
valuable services for the Company;
B. The Company and Indemnitee recognize the continued difficulty
in
obtaining liability insurance for corporate
directors, officers, employees,
controlling persons, agents and
fiduciaries, the significant increases in the
cost of such insurance and the general
reductions in the coverage of such
insurance.
C. The Company and Indemnitee further recognize the substantial
increase in corporate litigation in
general, subjecting directors, officers,
employees, controlling persons, agents and
fiduciaries to expensive litigation
risks at the same time as the availability
and coverage of liability insurance
has been severely limited.
D. The stockholders of the Company have adopted Bylaws (the
"Bylaws")
providing for the indemnification of the
officers, directors, agents and
employees of the Company to the maximum
extent authorized by Chapter 78 of the
Nevada Revised Statutes, as amended
("78NRS").
E. Indemnitee does not regard the current protection available for
the
Company's directors, officers, employees,
controlling persons, agents and
fiduciaries as adequate under the present
circumstances, and Indemnitee and
other directors, officers, employees,
controlling persons, agents and
fiduciaries of the Company may not be
willing to serve or continue to serve in
such capacities without additional
protection.
F. The Bylaws and 78NRS, by their non-exclusive nature, permit
contracts between the Company and its
directors, officers, employees,
controlling persons, agents or fiduciaries
with respect to indemnification of
such directors.
G. The Company (i) desires to attract and retain the involvement
of
highly qualified individuals, such as
Indemnitee, to serve the Company and, in
part, in order to induce Indemnitee to be
involved with the Company, and (ii)
wishes to provide for the indemnification
and advancing of expenses to
Indemnitee to the maximum extent permitted
by law.
H. In view of the considerations set forth above, the Company
desires
that Indemnitee be indemnified by the
Company as set forth herein.
NOW, THEREFORE, in consideration of Indemnitee's service to the
Company, the parties hereto agree as
follows:
<PAGE>
1. Indemnity of Indemnitee. The Company hereby agrees to indemnify
Indemnitee to the fullest extent permitted
by law, even if such
indemnification
is not specifically authorized by the other
provisions of this
Agreement, the
Company's Certificate of Incorporation (the
"Certificate"), 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 Nevada
corporation to indemnify a member of its Board of
Directors or an officer,
employee, controlling person, agent or fiduciary, it is the intent 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 Nevada corporation to
indemnify a member of its Board of
Directors or an officer, employee, agent or
fiduciary, 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
except as set
forth
in Section 9(a) hereof.
2. Additional Indemnity. The Company hereby agrees to hold harmless
and
indemnify the Indemnitee:
(a) against any and all expenses incurred by Indemnitee,
as set forth
in Section 3(a) below;
(b) with regard to any claims, penalties or other liabilities
arising
out of obligations owed by the Company to federal,
state or local
governments
for taxes (including taxes on payroll, income, sales and use) which were or
should have been accrued on or before
October 31, 2005 and
(c) otherwise to the fullest extent not prohibited by the
Certificate,
the Bylaws or 78NRS.
3.
Indemnification Rights.
(a) Indemnification of Expenses. The Company shall indemnify and
hold
harmless Indemnitee, together with
Indemnitee's partners, affiliates, employees,
agents and spouse and each person who
controls any of them
or who may be liable
within the meaning of Section 15 of the
Securities Act of
1933, as amended (the
"Securities Act"), or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), 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
and the Company believe 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") 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
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,
incurred by Indemnitee 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, controlling person, 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, controlling
person, 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 including, without limitation, any and all losses, claims, damages,
expenses and liabilities, joint or several (including any
investigation,
legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit, proceeding or any claim
asserted) under the
Securities Act, the Exchange Act or other
federal or state
statutory law or
regulation, at common law or otherwise,
which relate directly
or indirectly to
the registration, purchase, sale or ownership of any
securities of the Company
or to any fiduciary obligation owed with respect thereto (hereinafter an
"Indemnification Event"). Such payment of Expenses
shall be made by the Company
as soon as practicable but in any event no later
than 25 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 2 shall be subject to the
condition
that the Reviewing Party (as described in Section
11(e) hereof) shall not have
determined (in a written opinion, in any case in which the
Independent
Legal
Counsel as defined in Section 11(d) hereof
is involved) that
Indemnitee
would
not be permitted to be indemnified under
applicable law, and (ii) and Indemnitee
acknowledges and agrees that the obligation of the Company to make an
advance
payment of Expenses to Indemnitee pursuant to Section 4(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). Indemnitee's 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 11(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 3(e) 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) Contribution. If
the indemnification provided for in Section 3(a)
above for any reason is held by a court of competent jurisdiction to be
unavailable to an Indemnitee in respect of
any losses, claims, damages, expenses
or liabilities referred to therein, then the Company, in lieu of indemnifying
Indemnitee thereunder, shall contribute to the amount paid or payable by
Indemnitee as a result of such losses,
claims, damages,
expenses or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and Indemnitee, or (ii) if the allocation
provided by
clause (i) above is not permitted by applicable
law, in such
proportion as is
appropriate to reflect not only the
relative benefits
referred to in clause (i)
above but also the relative fault of the Company and
Indemnitee
in connection
with the action or inaction which resulted in such losses, claims, damages,
expenses or liabilities, as well as any
other relevant equitable considerations.
In connection with the registration of the Company's
securities,
the relative
benefits received by the Company
and Indemnitee shall be deemed to be in the
same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company
and the Indemnitee, in
each case as
set forth in the table on the cover page of
the applicable
prospectus, bear
to
the aggregate public offering price of the
securities so offered.
The relative
fault of the Company and Indemnitee shall be determined by reference
to, among
other things, whether the untrue or alleged
untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or
Indemnitee
and the parties' relative
intent, knowledge, access to information and
opportunity to correct or prevent
such statement or omission.
The Company and
Indemnitee agree that it would not be just and equitable if
contribution pursuant to this Section 3(c) were
determined
by pro rata or per
capita allocation or by any other method of allocation which does not take
account of the equitable considerations
referred to in the immediately preceding
paragraph. In connection with the
registration of the Company's securities, in
no event shall an Indemnitee be required to contribute any amount under this
Section 3(c) in excess of the lesser of (i)
that proportion of the total of such
losses, claims, damages or liabilities indemnified against equal to the
proportion of the total securities sold
under such registration statement which
is being sold by Indemnitee or (ii) the
proceeds received by Indemnitee from its
sale of securities under such registration
statement. No person
found guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the
Securities Act) shall be entitled to
contribution
from any person who
was not
found guilty of such fraudulent
misrepresentation.
(d) Survival
Regardless of
Investigation. The
indemnification
and
contribution provided for herein will
remain in full force and effect regardless
of any investigation made by or on behalf of Indemnitee or any officer,
director, employee, agent or controlling
person of Indemnitee.
(e) Change in Control.
After the date hereof, 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 Indemnitee to
payments of Expenses under this Agreement or any other
agreement or under
the
Company's Certificate or Bylaws as now or
hereafter in effect, Independent Legal
Counsel (as defined in Section 11(d)
hereof) shall be selected by Indemnitee and
approved by the Company (which approval sha
