Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“Agreement”) is made and entered into as of the
day of
,
2009, by and between Nexxus Lighting, a Delaware corporation (the
“Company”) and
,
a director and/or officer of the Company (the
“Indemnitee”).
WITNESSETH:
WHEREAS, damages sought against
directors and officers in shareholder or similar litigation may be
substantial, and the costs of defending such actions and of
judgments in favor of plaintiffs or of settlement therewith may be
prohibitive for individual directors and officers, without regard
to the merits of a particular action and without regard to the
culpability of any named director or officer to the detriment of
the corporation; and
WHEREAS, the issues in controversy
in such litigation usually relate to the knowledge, motives and
intent of the director or officer, who may be the only individual
with firsthand knowledge of essential facts or exculpating
circumstances who is qualified to testify in his defense regarding
matters of such a subjective nature, and the long period of time
which may elapse before final disposition of such litigation may
impose undue hardship and burden on a director or officer or his
estate in launching and maintaining a proper and adequate defense
of himself or his estate against claims for damages; and
WHEREAS, the Company is organized
under the General Corporation Law of the State of Delaware (the
“DGCL”) and Section 145 of the DGCL empowers
corporations to indemnify and advance expenses of litigation to an
individual serving as a director, officer, employee or agent of a
corporation and to individuals serving at the request of the
corporation as a director, officer, partner, employee or agent of
another corporation, partnership, joint venture, trust, other
enterprise, and further provides that the indemnification and
advancement of expenses set forth in the DGCL are not
“exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while
holding such office”; and
WHEREAS, the Certificate of
Incorporation of the Company, as amended or amended and restated
from time to time (the “Certificate of Incorporation”)
and the By-Laws of the Company, as amended or amended and restated
from time to time, provide that the Company may indemnify and hold
harmless directors and officers to the fullest extent permitted by
DGCL; and
WHEREAS, the Board of Directors of
the Company has concluded that it is advisable and in the best
interests of the Company to enter into an agreement to indemnify in
a reasonable and adequate manner the Indemnitee and to assume for
itself liability for expenses and damages in connection with claims
lodged against the Indemnitee for the Indemnitee’s decisions
and actions as a director and/or officer of the Company or any of
its Subsidiaries.
Execution Version
NOW, THEREFORE, in consideration of
the foregoing, and of other good and valuable consideration, the
receipt and sufficiency of which is acknowledged by each of the
parties hereto, the parties agree as follows:
I. DEFINITIONS
`For purposes of this Agreement, the
following terms shall have the meanings set forth below:
A. “ Board ”
shall mean the Board of Directors of the Company.
B. “ Corporate Status
” shall mean: (i) the status of an individual who is or
was a director or officer of the Company or any of the
Subsidiaries, or a member of any committee of the Board; and
(ii) the status of an individual who, while a director or
officer of the Company, is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
or employee benefit plan.
C. “ DGCL ” shall
mean the General Corporation Law of the State of Delaware, 8
Delaware Code, Section 101 et seq .
D. “ Disinterested
Director ” shall mean a director of the Company who
neither is nor was a party to the Proceeding with respect to which
indemnification is being sought by the Indemnitee.
E. “ Expenses ”
shall mean expenses of Proceedings including, without limitation,
all attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, investigation fees and expenses, accounting
and witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees
and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, being or preparing to be a witness in or
investigating a Proceeding.
F. “ Good Faith Act or
Omission ” shall mean an act or omission of the
Indemnitee in good faith and in a manner reasonably believed by the
Indemnitee to be in or not opposed to the best interests of the
Company or the Subsidiaries and, in the case of any criminal action
or Proceeding, one as to which the Indemnitee had no reasonable
cause to believe his or her conduct was unlawful.
G. “ Liabilities
” shall mean liabilities of any type whatsoever, including,
without limitation, any judgments, fines, excise taxes and
penalties under the Employee Retirement Income Security Act of
1974, as amended, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or
payable in connection with or with respect to such judgments,
fines, penalties or amounts paid in settlement) in connection with
the investigation, defense, settlement or appeal of any Proceeding
or any claim, issue or matter therein.
H. “ Person ”
shall mean any natural person or individual, or any artificial
person, including any corporation, association, unincorporated
organization, partnership, joint venture, firm, company, business,
trust, business trust, limited liability company, government,
public body or authority, governmental agency or department and any
other entity.
I. “ Proceeding ”
shall mean any threatened, pending or completed claim, demand,
inquiry, investigation, action, suit, arbitration, alternate
dispute resolution mechanism, administrative hearing or any other
actual, threatened or completed proceeding whether civil, criminal,
administrative or investigative, or any appeal therefrom, whether
formal or informal, or whether brought by or in the right of the
Company, whether brought by a governmental body, agency or
representative or by any other Person.
J. “Subsidiary”
shall mean any corporation, limited liability company, partnership,
business trust or other entity of which the Company, directly or
indirectly, owns or controls at least fifty percent (50%) of
the voting securities or economic interests.
K. “ Undertakings
” shall have the meaning ascribed to it in Article V
herein.
L. “ Voting Securities
” shall mean any securities of the Company that are entitled
to vote generally in the election of directors.
II. CONTINUATION OF
INDEMNITY
All agreements and obligations of
the Company contained herein shall continue during the period
Indemnitee is a director or officer of the Company and shall
continue thereafter so long as Indemnitee shall be subject to any
possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitrational, administrative
or investigative, by reason of the fact that Indemnitee was serving
in the capacity referred to herein and until the final termination
of all Proceedings (including possible Proceedings) with respect to
which the Indemnitee is granted rights of indemnification or
advancement of Expenses hereunder and of any Proceeding commenced
by the Indemnitee regarding the interpretation or enforcement of
this Agreement.
III. SERVICE BY INDEMNITEE,
NOTICE OF
PROCEEDINGS, DEFENSE OF
CLAIMS
A. Notice of Proceedings .
The Indemnitee agrees to notify the Company promptly in writing
upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. However, the
Indemnitee’s failure to so notify the Company shall not
relieve the Company from any liability it may have to the
Indemnitee under this Agreement, except to the extent that the
Indemnitee’s failure to so notify the Company materially
prejudices the Company with respect to said Proceeding or
matter.
B. Defense of Claims . The
Company will be entitled to participate, at its own expense, in any
Proceeding of which it has notice. The Company jointly with any
other indemnifying party similarly notified of any Proceeding will
be entitled to assume the defense of the Indemnitee therein, with
counsel reasonably satisfactory to the Indemnitee; provided,
however, that the Company shall not be entitled to assume the
defense of the Indemnitee in any
Proceeding if the Indemnitee has reasonably
concluded that there may be a conflict of interest between the
Company and the Indemnitee with respect to such Proceeding. The
Company will not be liable to the Indemnitee under this Agreement
for any Expenses incurred by the Indemnitee in connection with the
defense of any Proceeding, other than reasonable costs of
investigation or as otherwise provided below, after notice from the
Company to the Indemnitee of its election to assume the defense of
the Indemnitee therein. The Indemnitee shall have the right to
employ his own counsel in any such Proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of
its assumption of the defense thereof shall be at the expense of
the Indemnitee unless (i) the employment of counsel by the
Indemnitee has been authorized by the Company; (ii) the
Indemnitee shall have reasonably concluded that counsel employed by
the Company may not adequately represent the Indemnitee and shall
have so informed the Company; or (iii) the Company shall not
in fact have employed counsel to assume the defense of the
Indemnitee in such Proceeding, such counsel shall not in fact have
assumed such defense or such counsel shall not be acting, in
connection therewith, with reasonable diligence. In each such case
the fees and expenses of the Indemnitee’s counsel shall be
advanced by the Company in accordance with this
Agreement.
C. Hold Harmless Agreement .
If, at any time, the Company shall provide the Indemnitee with an
agreement in writing, in form and substance reasonably satisfactory
to the Indemnitee and the Indemnitee’s counsel, agreeing to
indemnify, defend or prosecute and hold the Indemnitee harmless
from all Liabilities and Expenses arising from any Proceeding (a
“Hold Harmless Agreement”), and demonstrating to the
reasonable satisfaction of the Indemnitee the Company’s
financial ability to accomplish such indemnification, the Company
may thereafter at its own expense undertake full responsibility for
the defense or prosecution of such Proceeding. The Company may
contest or settle any such Proceeding for money damages on such
terms and conditions as it deems appropriate but shall be obligated
to consult in good faith with the Indemnitee and not to contest or
settle any Proceeding involving injunctive or equitable relief
against or affecting the Indemnitee or the Indemnitee’s
properties or assets without the prior written consent of the
Indemnitee, such consent not to be withheld unreasonably
D. Settlement of Claims . The
Company shall not settle any Proceeding in any manner which would
impose any liability, penalty or limitation on the Indemnitee
without the written consent of the Indemnitee, which consent shall
not be unreasonably withheld or delayed. The Company shall not be
liable to indemnify the Indemnitee under this Agreement or
otherwise for any amounts paid in settlement of any Proceeding
effected by the Indemnitee without the Company’s written
consent, which consent shall not be unreasonably withheld or
delayed. Indemnitee shall not settle any Proceeding, in whole or in
part, which would impose any Expense, Liability or limitation on
the Company without the Company’s prior, written consent,
which consent shall not be unreasonably withheld or
delayed.
E. Addressing Liens, Attachments,
Etc . If by reason of any Proceeding as to which the Indemnitee
is entitled (or is presumed to be entitled) to indemnification
under this Agreement, a lien, attachment, garnishment or execution
is placed upon any of the property or assets of the Indemnitee, the
Company shall promptly furnish a reasonably satisfactory indemnity
bond to obtain the prompt release of such lien, attachment,
garnishment or execution.
IV.
INDEMNIFICATION
A. In General . Upon the
terms and subject to the conditions set forth in this Agreement,
the Company shall hold harmless and indemnify the Indemnitee
against any and all Liabilities actually incurred by or for him or
her in connection with any Proceeding (whether the Indemnitee is or
becomes a party, a witness or is otherwise a participant in any
role) to the fullest extent permitted by law, as the same exists or
may hereafter be amended or interpreted (but in the case of any
such amendment or interpretation, only to the extent that such
amendment or interpretation permits the Company to provide broader
indemnification rights than were permitted prior thereto). The
parties hereto intend that this Agreement shall provide for
indemnification in excess of that expressly permitted by statute,
including, without limitation, any indemnification provided by the
Company’s Certificate of Incorporation, its Bylaws, vote of
its shareholders or Disinterested Directors, or applicable law. For
all matters for which the Indemnitee is entitled to indemnification
under this Article IV, the Indemnitee shall be entitled to
advancement of Expenses in accordance with Article V
hereof.
B. Proceeding Other Than a
Proceeding by or in the Right of the Company . If the
Indemnitee, by reason of his or her Corporate Status or alleged
action or inaction in such capacity, was or is a party or is
threatened to be made a party to any Proceeding (whether the
Indemnitee is or becomes a party, a witness or is otherwise a
participant in any role) (other than a Proceeding by or in the
right of the Company or any Subsidiary), the Company shall, subject
to the limitations set forth in Section IV.F. below, hold harmless
and indemnify the Indemnitee against any and all Expenses and
Liabilities actually and reasonably incurred by or for the
Indemnitee in connection with the Proceeding, unless the act(s) or
omission(s) of the Indemnitee giving rise thereto were not Good
Faith Act(s) or Omission(s).
C. Proceedings by or in the Right
of the Company . If the Indemnitee, by reason of his or her
Corporate Status or alleged action or inaction in such capacity,
was or is a party or is threatened to be made a party to any
Proceeding (whether the Indemnitee is or becomes a party, a witness
or otherwise is a participant in any role) by or in the right of
the Company or any Subsidiary to procure a judgment in its favor,
the Company shall, subject to the limitations set forth in Section
IV.F. below, hold harmless and indemnify the Indemnitee against any
and all Expenses actually incurred by or for the Indemnitee in
connection with the investigation, defense, settlement or appeal of
such Proceeding, unless the act(s) or omission(s) of the Indemnitee
giving rise to the Proceeding were not Good Faith Act(s) or
Omission(s). However, no indemnification under this Section IV.C.
shall be made with respect to any claim, issue or matter as to
which the Indemnitee shall have been finally adjudged to be liable
to the Company or any Subsidiary, unless a court of appropriate
jurisdiction (including, but not limited to, the court in which
such Proceeding was brought) determines upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, regardless of whether the
Indemnitee’s act(s) or omission(s) were found to be a Good
Faith Act(s) or Omission(s), the Indemnitee is fairly and
reasonably entitled to indemnification for such Expenses, which
such court shall deem proper.
D. Indemnification of a Party Who
is Wholly or Partly Successful . Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee is,
by reason of the Indemnitee’s Corporate Status, a party to
and is successful in, on the merits or
otherwise, any Proceeding, the Indemnitee shall
be indemnified by the Company to the maximum set forth herein
against all Expenses and Liabilities actually incurred by or for
him or her in connection therewith. If the Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall hold harmless and
indemnify the Indemn
