EXHIBIT
10.6
INDEMNITY
AGREEMENT
This INDEMNITY AGREEMENT (the
“Agreement”) is dated as of
[
] and is made by and between GoFish
Corporation (f/k/a Unibio Inc.), a Nevada corporation (the
“Company”), and [
], an officer or director of the Company
(the “Indemnitee”).
RECITALS
A.
The Company is aware that competent
and experienced persons are increasingly reluctant to serve as
directors or officers of corporations unless they are protected by
comprehensive liability insurance and/or indemnification, due to
increased exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the
exposure frequently bears no reasonable relationship to the
compensation of such directors and officers;
B.
Based on their experience as
business managers, the Board of Directors of the Company (the
“Board”) has concluded that, to retain and attract
talented and experienced individuals to serve as officers and
directors of the Company, and to encourage such individuals to take
the business risks necessary for the success of the Company, it is
necessary for the Company contractually to indemnify officers and
directors and to assume for itself maximum liability for expenses
and damages in connection with claims against such officers and
directors in connection with their service to the
Company;
C.
The Nevada Revised Statutes under
which the Company is organized (the “Law”), empowers
the Company to indemnify by agreement its officers, directors,
employees and agents, and persons who serve, at the request of the
Company, as directors, officers, employees or agents of other
corporations or enterprises, and expressly provides that the
indemnification provided by the Law is not exclusive;
and
D.
The Company desires and has
requested the Indemnitee to serve or continue to serve as a
director or officer of the Company. As an inducement to serve and
in consideration for such service, the Company has agreed to
indemnify the Indemnitee for claims for damages arising out of or
related to the performance of such services to the Company in
accordance with the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, the parties hereto, intending to
be legally bound, hereby agree as follows:
1.1 Agent . For the purposes of this Agreement,
“agent” of the Company means any person who is or at
any time was a director or officer of the Company or a subsidiary
of the Company; or is or at any time was serving at the request of,
for the convenience of, or to represent the interest of the Company
or a subsidiary of the Company as a director or officer of another
foreign or domestic corporation, partnership, joint venture, trust
or other enterprise or an affiliate of the Company; or was a
director or officer of another enterprise or affiliate of the
Company at the request of, for the convenience of, or to represent
the interests of such predecessor corporation. The term
“enterprise” includes any employee benefit plan of the
Company, its subsidiaries, affiliates and predecessor
corporations.
1.2 Expenses . For purposes of this Agreement,
“expenses” includes all direct and indirect costs of
any type or nature whatsoever (including, without limitation, all
attorneys’ fees and related disbursements and other
out-of-pocket costs) actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense or appeal
of a proceeding or establishing or enforcing a right to
indemnification or advancement of expenses under this Agreement,
Section 78.7502 of the Law or otherwise.
1.3 Proceeding . For the purposes of this Agreement,
“proceeding” means any threatened, pending or completed
action, suit, inquiry or other proceeding, whether civil, criminal,
administrative, investigative or any other type
whatsoever.
1.4 Subsidiary . For purposes of this Agreement,
“subsidiary” means any corporation of which more than
fifty percent (50%) of the outstanding voting securities is owned
directly or indirectly by the Company, by the Company and one or
more of its subsidiaries or by one or more of the Company’s
subsidiaries.
2.
Agreement to Serve
. The Indemnitee agrees to serve
and/or continue to serve as an agent of the Company, at the will of
the Company (or under separate agreement, if such agreement
exists), in the capacity the Indemnitee currently serves as an
agent of the Company, faithfully and to the best of his ability, so
long as he is duly appointed or elected and qualified in accordance
with the applicable provisions of the charter documents of the
Company or any subsidiary of the Company; provided, however, that
the Indemnitee may at any time and for any reason resign from such
position (subject to any contractual obligation that the Indemnitee
may have assumed apart from this Agreement), and the Company or any
subsidiary shall have no obligation under this Agreement to
continue the Indemnitee in any such position. For the avoidance of
doubt, the Company and Indemnitee each acknowledge and agree that
the resignation or other termination of Indemnitee as an agent of
the Company under this paragraph 2 shall not impair any right that
Indemnitee may otherwise have to be indemnified under the terms of
this Agreement.
3.
Directors’ and
Officers’ Insurance . The Company shall, to the extent that the
Board determines it to be economically reasonable, maintain a
policy of directors’ and officers’ liability insurance
(“D&O Insurance”), on such terms and conditions as
may be approved by the Board.
4.
Mandatory
Indemnification . Subject
to Section 9 below, the Company shall indemnify and hold the
Indemnitee harmless to the fullest extent permitted by the Law.
Without limiting the generality of the foregoing, the Company shall
indemnify and hold harmless the Indemnitee:
4.1 Third Party Actions . If the Indemnitee is a person who was or is a
party or is threatened to be made a party to any proceeding (other
than an action by or in the right of the Company) by reason of the
fact that he is or at any time was an agent of the Company, or by
reason of anything done or not done by him in any such capacity,
against any and all expenses and liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) actually and
reasonably incurred by him in connection with the investigation,
defense, settlement or appeal of such proceeding if he acted in
good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Company and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful;
4.2 Derivative Actions . If the Indemnitee is a person who was or is a
party or is threatened to be made a party to any proceeding by or
in the right of the Company to procure a judgment in its favor by
reason of the fact that he is or at any time was an agent of the
Company, or by reason of anything done or not done by him in any
such capacity, against any amounts paid in settlement of any such
proceeding and all expenses actually and reasonably incurred by him
in connection with the investigation, defense, settlement or appeal
of such proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests
of the Company; except that no indemnification under this
subsection shall be made in respect of any claim, issue or matter
as to which such person shall have been finally adjudged, in a
judgment not subject to appeal, to be liable to the Company by a
court of competent jurisdiction due to willful misconduct of a
culpable nature in the performance of his duty to the Company,
unless and only to the extent that the court in which such
proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such amounts which the court shall deem
proper; and
4.3 Exception for Amounts Covered by
Insurance .
Notwithstanding the foregoing, the Company shall not be obligated
to indemnify the Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) to the
extent such have been paid directly to the Indemnitee by D&O
Insurance.
5.
Partial Indemnification and
Contribution .
5.1 Partial Indemnification . If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of any expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) incurred
by him in the investigation, defense, settlement or appeal of a
proceeding but is not entitled, however, to indemnification for all
of the total amount thereof, then the Company shall nevertheless
indemnify the Indemnitee for such total amount except as to the
portion thereof to which the Indemnitee is not entitled to
indemnification.
5.2 Contribution . If the Indemnitee is not entitled to the
indemnification provided in Section 4 for any reason other than the
statutory limitations set forth in the Law, then in respect of any
threatened, pending or completed proceeding in which the Company is
jointly liable with the Indemnitee (or would be if joined in such
proceeding), the Company shall contribute to the amount of expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred and paid or
payable by the Indemnitee in such proportion as is appropriate to
reflect (i) the relative benefits received by the Company on the
one hand and the Indemnitee on the other hand from the transaction
from which such proceeding arose and (ii) the relative fault of the
Company on the one hand and of the Indemnitee on the other hand in
connection with the events which resulted in such expenses,
judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the
Company on the one hand and of the Indemnitee on the other hand
shall be determined by reference to, among other things, the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent the circumstances resulting
in such expenses, judgments, fines or settlement amounts. The
Company agrees that it would not be just and equitable if
contribution
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