|
INDEMNIFICATION AGREEMENT
This Indemnification
Agreement ( "
Agreement " ) is
entered into as of September 18, 2007 by and between Monarch
Staffing, Inc., a Nevada corporation (the "
Company " ) and
William Comte ( "
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. Indemnitee
does not regard the current protection available as adequate
under the present circumstances, and Indemnitee and other
directors, officers, employees, agents and fiduciaries of the
Company may not be willing to continue to serve in such
capacities without additional protection.
D. 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.
E. 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 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 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 twenty (20) 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 commenced 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). The 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 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 Articles of
Incorporation, as amended, 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 twenty (20) days
after written demand by Indemnitee therefor to the
Company.
(b) Notice/Cooperation
by Indemnitee. Indemnitee shall, as a condition
precedent to Indemnitee's 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 Board of
Directors of the Company at the address set forth in Section
14(d)(i) hereof (or such other address as the Company shall
designate in writing to Indemnitee as provided in Section 14
hereof). 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) 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 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
separate counsel subsequently incurred by Indemnitee with
respect to the same Claim; provided that, (i) Indemnitee shall
have the right to employ Indemnitee's counsel in any such
Claim at Indemnitee's 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 fe
|
