EXHIBIT 10.1
INDEMNITY AGREEMENT
This Agreement, made as of __________ ____, _____, is by and between
Mobility Electronics, Inc., a Delaware corporation (the "Corporation"), and the
director and/or executive officer of the Corporation whose name is set forth on
the signature page hereof ("Indemnitee").
WITNESSETH:
WHEREAS, it is essential to the Corporation to retain and attract as
directors and executive officers the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance has been severely
limited; and
WHEREAS, it is now and has always been the stated policy of the
Corporation to indemnify its directors and officers so as to provide to them the
maximum protection permitted by law; and
WHEREAS, Indemnitee does not regard the protection available under the
Corporation's Certificate of Incorporation and insurance as adequate in the
present circumstances and may not be willing to serve or continue to serve as a
director or officer without adequate protection, and the Corporation desires
that Indemnitee serve or continue to serve in such capacity;
NOW, THEREFORE, Corporation and Indemnitee hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve
as a director and/or officer of the Corporation for so long as he is duly
elected or appointed or until such time as he tenders his resignation in
writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed action, suit or proceeding, whether brought in the
right of the Corporation or otherwise and whether of a civil, criminal,
administrative or investigative nature (including all appeals
therefrom), in which Indemnitee may be or may have been involved as a
party or otherwise, by reason of the fact that Indemnitee is or was a
director and/or officer of the Corporation, by reason of any action
taken by Indemnitee or of any inaction on his part while acting as such
director and/or officer, or by reason of the fact that Indemnitee is or
was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, whether or not Indemnitee is serving in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement.
(b) The term "Expenses" shall include, without limitation
thereto, all costs, expenses and obligations (including by way of
example and not by way of limitation attorneys' fees, court costs,
travel expenses and fees of experts) incurred or paid in
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connection with investigating, defending, being a witness in or
participating in, or preparing to defend, be a witness or participate
in any Proceeding, whether conducted by the Corporation or otherwise,
including without limitation any proceeding, action or process for the
purpose of establishing Indemnitee's right to indemnification under
this Agreement and any amounts paid in settlement by or on behalf of
Indemnitee.
(c) References to "other enterprise" shall include employee
benefit plans; references to "fines" shall include any excise taxes
assessed with respect to any employee benefit plan; references to
"serving at the request of the Corporation" shall include any service
as a director, officer, employee, or agent of the Corporation that
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who is determined to have
acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "he reasonably believed
to be in or not opposed to the best interests of the Corporation," as
referred to in this Agreement.
(d) "Independent Legal Counsel" means legal counsel who or
which has not provided or performed services for the Corporation, any
of its affiliates, officers or directors or Indemnitee for the last
three years and is not otherwise representing any party to any
Proceeding, other than legal services rendered as an independent legal
counsel in any prior determination regarding indemnification under this
Agreement or any similar agreement with any other director.
(e) "Change of Control" means the occurrence of one or more of
the following events:
(i) Any person within the meaning of Section 13(d)
and 14(d) of the Securities Exchange Act or 1934, as amended
(the "Exchange Act"), other than the Corporation (including
its subsidiaries, directors or executive officers) has become
the beneficial owner, within the meaning of Rule 13d-3 under
the Exchange Act, of 50 percent or more of the combined voting
power of the Corporation's then outstanding common stock or
equivalent in voting power of any class or classes of the
Corporation's outstanding securities ordinarily entitled to
vote in elections of directors ("voting securities");
(ii) Shares representing 50 percent or more of the
combined voting power of the Corporation's voting securities
are purchased pursuant to a tender offer or exchange offer
(other than an offer by the Corporation or its subsidiaries or
affiliates);
(iii) As a result of, or in connection with, any
tender offer or exchange offer, merger or other business
combination, sale of assets or contested election, or any
combination of the foregoing transactions (a "Transaction"),
the persons who were directors of the Corporation before the
Transaction shall cease to constitute a majority of the Board
of Directors of the Corporation or of any successor to the
Corporation;
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(iv) Following the date hereof, the Corporation is
merged or consolidated with another corporation and as a
result of such merger or consolidation less than 50 percent of
the outstanding voting securities of the surviving or
resulting corporation shall then be owned in the aggregate by
the former stockholders of the Corporation, other than (A) any
party to such merger or consolidation, or (B) any affiliates
of any such party; or
(v) The Corporation transfers more than 50 percent of
its assets, or the last of a series of transfers results in
the transfer of more than 50 percent of the assets of the
Corporation, to another entity that is not wholly-owned by the
Corporation. For purposes of this subsection (v), the
determination of what constitutes 50 percent of the assets of
the Corporation shall be made by the Board of Directors of the
Corporation, as constituted immediately prior to the events
that would constitute a change of control if 50 percent of the
Corporation's assets were transferred in connection with such
events, in its sole discretion.
3. Indemnity in Third Party Proceedings. The Corporation shall
indemnify Indemnitee if Indemnitee is a party to or threatened to be made a
party to or otherwise involved (as a witness or otherwise) in any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a
judgment in its favor in which Indemnitee is a party defendant) by reason of the
fact that Indemnitee is or was a director and/or officer of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against all Expenses, judgments, fines, penalties and amounts
paid in settlement, actually and reasonably incurred by Indemnitee in connection
with such Proceeding (including the defense or settlement of such Proceeding),
but only if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Corporation and,
in the case of a criminal action or proceeding, in addition, Indemnitee had no
reasonable cause to believe that Indemnitee's conduct was unlawful. The
termination of any such Proceeding by judgment, order of court, settlement,
conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation or, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's
conduct was unlawful.
4. Indemnity in Proceedings By or In the Right of the Corporation. The
Corporation shall indemnify Indemnitee if Indemnitee is a party to or is
threatened to be made a party to any Proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director and/or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against all Expenses, actually and reasonably incurred by Indemnitee
in connection with the defense or settlement of such Proceeding, but only if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Corporation, except that no
indemnification for Expenses shall be made under this Section in respect of any
claim, issue or matter as to which Indemnitee shall have been adjudged to be
liable to the Corporation unless, and only to the extent that, any court in
which such Proceeding was brought shall determine upon application that, despite
the adjudication of
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liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnity for such Expenses as such court shall deem
proper.
5. Indemnification of Expenses of Successful Party. Notwithstanding any
other provisions of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, including, without limitation, the
dismissal of an action without prejudice, Indemnitee shall be indemnified
against all Expenses incurred in connection therewith.
6. Advances of Expenses. The Expenses incurred by Indemnitee in
connection with any Proceeding (or in defense of any claim, issue or matter
therein) shall be paid by the Corporation in advance of a final disposition of
such Proceeding at the written request of Indemnitee, if Indemnitee shall
undertake to repay such amount if and to the extent that it is ultimately
determined that Indemnitee is not entitled to indemnification for such Expenses
pursuant to Sections 3 and/or 4 above. Following such a request and undertaking
by Indemnitee and until a final determination that Indemnitee is not entitled to
indemnification for such Expenses pursuant to Sections 3 and/or 4 above, the
Corporation shall promptly pay all invoices, statements or bills reflecting such
Expenses submitted by or on behalf of Indemnitee and shall promptly reimburse
Indemnitee for all Expenses paid by Indemnitee.
7. Right of Indemnitee to Indemnification Upon Application; Procedure
Upon Application. Any indemnification under Sections 3 and/or 4 above shall be
made or paid by the Corporation no later than 30 days after receipt by the
Corporation of the written request of Indemnitee therefore, unless a
determination is made within such 30-day period by (i) the Board of Directors by
a majority vote of a quorum consisting of directors who were not parties to such
Proceedings (unless a Change of Control has occurred), or (ii) Independent Legal
Counsel in a written opinion (which counsel shall be appointed as hereinafter
provided if such a quorum is not obtainable or if a Change of Control has
occurred), that Indemnitee has not met the relevant standards for
indemnification set forth in Sections 3 and/or 4 above.
In any case in which Indemnitee reasonably and in good faith believes
that the determination required by the foregoing provisions of this Section must
be made by Independent Legal Counsel, Indemnitee shall (concurrently with his
request for indemnification under Sections 3 and/or 4 above) so advise the
Corporation and shall specify the names of not less than three acceptable
alternative choices for such Independent Legal Counsel, one of which shall
promptly be selected by a majority of the directors of the Corporation (without
the vote or participation of Indemnitee) as Independent Legal Counsel, and
Indemnitee shall be promptly notified of such selection. The Corporation agrees
to pay the fees of any Independent Legal Counsel required by this Agreement and
to indemnify such counsel against all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
8. Court Ordered Indemnification. The right to indemnification or
advances as provided by this Agreement shall be enforceable by Indemnitee in any
court of competent jurisdiction. The burden of proving that indemnification is
not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors or Independent Legal Counsel) to
have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual
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determination by the Corporation (including its Board of Directors or
Independent Legal Counsel) that Indemnitee has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct. Indemnitee's expenses
reasonably incurred in connection with successfully establishing Indemnitee's
right to indemnification, in whole or in part, in any such Proceeding shall also
be indemnified by the Corporation.
9. Indemnification Hereunder Not Exclusive. The indemnification
provided by this Agreement shall not be deemed exclusive of and shall be in
addition to (but shall not be duplicative of) any other rights to which
Indemnitee may be entitled under the Certificate of Incorporation, the Bylaws,
any agreement (including without limitation any and all directors and/or
officers insurance policies), any vote of stockholders or disinterested
directors, the General Corporation Law of the State of Delaware, or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office; provided that to the extent any prior agreements
between the Corporation and Indemnitee conflict with, are more limiting than, or
provide lesser rights or protections to Indemnitee than this Agreement, this
Agreement shall supersede and control. This Agreement supersedes and replaces,
on and after the date hereof, any prior indemnity agreement which Indemnitee may
have with the Corporation. The indemnification and advancement of Expenses
provided under this Agreement shall continue as to Indemnitee even though
Indemnitee may have ceased to be a director or officer and shall inure to the
benefit of the heirs and personal representatives of Indemnitee.
10. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines or penalties actually and reasonably
incurred by Indemnitee in the investigation, defense, appeal or settlement of
any Proceedings but not, however, for the total amount thereof, the Corporation
shall nevertheless indemnify Indemnitee for the portion of such Expenses,
judgments, fines or penalties to which Indemnitee is entitled.
11. Saving Clause. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines, penalties and amounts paid in settlement with respect to any Proceeding
to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated or by any other applicable law.
12. Notice. Indemnitee shall, as a condition precedent to his right to
be indemnified under this Agreement, give to the Corporation notice in writing
as soon as practicable of any claim made against him for which indemnity will or
could be sought under this Agreement. Notice to the Corporation shall be
directed to Mobility Electronics, Inc., Attention: President (or such other
address as the Corporation shall designate in writing to Indemnitee), together
with a copy thereof to Xxxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxx L.L.P., 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000. Notice shall be deemed received three
days after the date postmarked if sent by prepaid mail, properly addressed. In
addition, Indemnitee shall give the Corporation such information and cooperation
as it may reasonably require and as shall be within Indemnitee's power.
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13. Counterparts. This Agreement may be executed in any number of
counterparts, and upon the execution hereof by all parties hereto, in
counterparts or otherwise, each executed counterpart shall constitute an
original.
14. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS OF LAWS) OF THE
STATE OF DELAWARE. THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE PERFORMABLE IN
MARICOPA COUNTY, ARIZONA.
15. Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
16. Gender and Number. When the context requires, the gender of all
words used herein shall include the masculine, feminine and neuter and the
number of words shall include the singular and plural.
17. Successors and Assigns. This Agreement shall be binding upon the
Corporation and its successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first set forth above.
MOBILITY ELECTRONICS, INC.
By:
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Title:
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INDEMNITEE
By:
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Printed:
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