INDEMNIFICATION AGREEMENT
EXHIBIT
10.2
This
Indemnification Agreement (this “Agreement”) is dated
as August 1, 2009 between MARANI BRANDS INC., A NAVADA Corporation (the “Company”),
and Xxxxxxx Xxxxxx (the “Indemnitee”).
Recitals
A. The
Indemnitee is an executive officer of the Company and/or a member of the
Company's Board of Directors (the “Board”) and, in such
capacity, is performing valuable services for the Company.
B. The
Company has adopted By-Laws, as amended (the “By-Laws”), providing
for indemnification of the directors and officers of the Company to the fullest
extent permitted by corporate laws of the State of Nevada (the “Nevada
Code”). The By-Laws and the Nevada Code specifically provide that
they are not exclusive, and contemplate that agreements may be entered into
between the Company and directors and officers with respect to indemnification
of directors and officers.
C. In
recognition of the need for corporations to be able to induce capable and
responsible persons to accept positions in corporate management, Nevada law
authorizes (and in some instances requires) corporations to indemnify their
directors and officers and further authorizes corporations to purchase and
maintain insurance for the benefit of their directors and officers.
D. The
Company and the Indemnitee further recognize that officers and directors may be
exposed to certain risks including the increased risk of litigation and other
claims being asserted against directors and executive officers of public
companies in today's environment.
E. These
factors with respect to the coverage and cost to the Company of D&O
Insurance and issues concerning the scope of indemnity under the Nevada Code and
By-Laws generally have raised questions concerning the adequacy and reliability
of the protection presently afforded to directors and executive
officers.
F. There
are at this time no threatened, pending or completed Proceedings (as defined in
this Agreement) known to either the Company or the Indemnitee.
G. In
order to address such issues and to further induce the Indemnitee to serve and
continue to serve as an executive officer and/or a member of the Board, the
Company and the Indemnitee desire to enter into this Agreement.
Statement of
Agreement
In
consideration of the Indemnitee's continued service as an executive officer
and/or a member of the Board after the date of this Agreement, the Company and
the Indemnitee hereby agree as follows:
1. Indemnification
of the Indemnitee. (a) Subject
only to the limitations set forth in Section 2 below, the Company shall
indemnify the Indemnitee to the full extent not otherwise prohibited by the
Nevada Code or other applicable law, including without limitation
indemnity,
(i) against
any and all costs, charges and expenses (including legal, expert, and other
professional fees and expenses paid or payable in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing to investigate, defend, be a witness in or participate in (including
on appeal), any Proceeding (defined below), judgments, damages, fines (including
excise taxes with respect to employee benefit plans), penalties (whether civil,
criminal or other), and amounts paid in settlement actually and reasonably
incurred by the Indemnitee (collectively, “Losses”), in
connection with any threatened, pending, or completed claim, demand, action,
suit or proceeding (whether civil, criminal, administrative, arbitrative or
other, whether made pursuant to federal, state or other law, and including,
without limitation, an action by or in the right of the Company or any of its
subsidiaries and any appeal of or from any judgment or decision), or any
threatened, pending or completed inquiry or investigation, whether made,
instituted or conducted by the Company or any of its subsidiaries or any other
person, including any federal, state or other governmental entity, that the
Indemnitee determines might lead to the institution of any such claim, demand,
action, suit or other proceeding (each a “Proceeding”), in any
case to which the Indemnitee is or at any time becomes a party or witness, or is
threatened to be made a party or witness as a result, directly or indirectly, of
(A) serving at any time: (I) as a director, officer, employee, or agent of the
Company; or (II) at the request of the Company as a director, officer,
employee, trustee, fiduciary, manager, member, or agent of a corporation,
partnership, trust, limited liability company, employee benefit plan, or other
enterprise or entity, (B) any actual, alleged or suspected act or failure to act
by the Indemnitee in respect of any business, transaction, communication,
filing, disclosure or other activity of the Company or any other entity or
enterprise referred to in clause (A) of this sentence; and (ii) otherwise to the
fullest extent that the Indemnitee may be indemnified by the Company under the
Certificate of Incorporation of the Company, as amended (the “Certificate of
Incorporation”), the By-Laws and the Nevada Code, including, without
limitation, the non-exclusivity provisions thereof. In addition to
any service at the actual request of the Company, for purposes of this
Agreement, Indemnitee will be deemed to be serving or to have served at the
request of the Company as a director, officer, employee, member, manager,
trustee or agent of another entity or enterprise if Indemnitee is or was serving
as a director, officer, employee, member, manager, trustee or agent of such
entity or enterprise and (A) such entity or enterprise is or at the time of
such service was a Controlled Affiliate, (B) such entity or enterprise is
or at the time of such service was an employee benefit plan (or related trust)
sponsored or maintained by the Company or a Controlled Affiliate, or
(C) the Company or a Controlled Affiliate directly or indirectly caused or
authorized Indemnitee to be nominated, elected, appointed, designated, employed,
engaged or selected to serve in such capacity. For purposes
hereof, “Controlled Affiliate”
means any corporation, limited liability company, partnership, joint venture,
trust or other entity or enterprise, whether or not for profit, that is directly
or indirectly controlled by the Company. For purposes of this
definition, “control” means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of an entity or
enterprise, whether through the ownership of voting securities, through other
voting rights, by contract or otherwise; provided that direct or indirect
beneficial ownership of capital stock or other interests in an entity or
enterprise entitling the holder to cast 20% or more of the total number of votes
generally entitled to be cast in the election of directors (or persons
performing comparable functions) of such entity or enterprise will be deemed to
constitute control for purposes of this definition. If the Indemnitee
is entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of any Loss, but not for all of the total amount
thereof, the Company will nevertheless indemnify the Indemnitee for the portion
thereof to which the Indemnitee is entitled.
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2. Limitations
on Indemnity. No indemnity
pursuant to Section 1 will be paid by the Company:
(a) Except
to the extent that the aggregate amount of Losses to be indemnified exceed the
aggregate amount of such Losses for which the Indemnitee is actually paid or
reimbursed pursuant to directors’ and officers’ liability insurance, if any,
which may be purchased and maintained by the Company or any of its subsidiaries
or pursuant to the Certificate of Incorporation, the By-Laws or
otherwise;
(b) To
the extent determined by a court having jurisdiction in the matter, in a final
adjudication from which there is no further right of appeal, that the Indemnitee
actually realized a personal gain or profit to which the Indemnitee was not
legally entitled, including profit from the purchase and sale by the Indemnitee
of equity securities of the Company which are recoverable by the Company
pursuant to Section 16(b) of the Securities Exchange Act of 1934, as
amended;
(c) On
account of the Indemnitee's conduct if it is proven by clear and convincing
evidence in a court of competent jurisdiction that the Indemnitee's action or
failure to act involved an act or omission undertaken with deliberate intent to
cause injury to the Company or undertaken with reckless disregard for the best
interests of the Company, except to the extent such indemnity is otherwise
permitted under applicable law;
(d) With
respect to any remuneration paid to the Indemnitee determined, by a court having
jurisdiction in the matter in a final adjudication from which there is no
further right of appeal, to have been in violation of law;
(e) If
it shall have been determined by a court having jurisdiction in the matter, in a
final adjudication from which there is no further right of appeal, that
indemnification is not lawful;
(f) On
account of the Indemnitee's conduct to the extent it relates to any matter that
occurred prior to the time such individual became an executive officer or a
director of the Company; provided, however, that this
limitation will not apply to the extent such matter occurred while the
Indemnitee was a director, officer, employee or agent of the Company or its
subsidiaries (other than prior to the time such entity became a subsidiary of
the Company); or
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(g) No
indemnity pursuant to Section 1 shall be paid by the Company with respect to
Proceedings initiated or brought voluntarily by the Indemnitee and not by way of
defense, except pursuant to Section 6 with respect to proceedings brought to
enforce rights or to collect money due under this Agreement; provided, however, that
indemnity may be provided by the Company in specific cases if
(i) authorized by another agreement to which the Company is a party whether
heretofore or hereafter entered, (ii) otherwise ordered by the court in which
the Proceeding is brought, or (iii) the Board finds it to be
appropriate.
In no
event will the Company be obligated to indemnify the Indemnitee pursuant to this
Agreement to the extent such indemnification is prohibited by applicable
law. A determination as to whether the Indemnitee will be entitled to
indemnification under Section 1 will be made in accordance with Section 4(a)
hereof.
3. Advancement
of Losses. Losses reasonably
incurred by the Indemnitee in connection with any Proceeding will be promptly
reimbursed or paid by the Company as they become due in advance of the final
disposition of such Proceeding under the procedures set forth in Section 4(b)
below. The Indemnitee's right to such advancement is not subject to
the satisfaction of any standard of conduct.
4. Certain
Procedures Relating to Indemnification.
(a) For
purposes of pursuing the Indemnitee's rights to indemnification under Section 1
hereof, the Indemnitee shall (i) submit to the Board a sworn statement of
request for indemnification substantially in the form of Exhibit 1 attached
hereto and made a part hereof (the “Request for
Indemnification”) averring that the Indemnitee is entitled to
indemnification hereunder; and (ii) present to the Company reasonable
evidence of all amounts for which indemnification is
requested. Without limiting Section 3(c), submission of a Request for
Indemnification to the Board shall create a presumption that the Indemnitee is
entitled to indemnification hereunder, and the Company shall, within thirty (30)
calendar days after submission of the Request for Indemnification, make the
payments requested in the Request for Indemnification to or for the benefit of
the Indemnitee, unless (A) within such thirty (30) calendar-day-period the
Board shall resolve by vote of a majority of the Directors at a meeting at which
a quorum is present that the Indemnitee is not entitled to indemnification under
Section 1 hereof, (B) such vote shall be based upon clear and convincing
evidence (sufficient to rebut the foregoing presumption), and (C) the Board
shall notify the Indemnitee within such period of such vote, which notice will
disclose with particularity the evidence upon which the vote is
based. The foregoing notice shall be sworn to by all persons who
participated in the vote and voted to deny indemnification. The
provisions of this Section 3 are intended to be procedural only and will not
affect the right of the Indemnitee to indemnification under Section 1 of this
Agreement so long as the Indemnitee follows the prescribed procedure, and any
determination by the Board that the Indemnitee is not entitled to
indemnification and any failure to make the payments requested in the Request
for Indemnification will be subject to judicial review by any court of competent
jurisdiction.
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(b) For
purposes of obtaining payments of Losses in advance of final disposition
pursuant to Section 3, the Indemnitee shall submit to the Company a request
for advancement of Losses substantially in the form of Exhibit 2 attached hereto
and made a part hereof (the “Undertaking and Request for
Payment”), averring that the Indemnitee has reasonably incurred or will
reasonably incur actual Losses in defending a Proceeding referred to in Section
1, or pursuant to Section 6 hereof. The Indemnitee shall execute
the Undertaking and Request for Payment by which the Indemnitee undertakes to:
(A) repay such amount if it is ultimately determined that the Indemnitee is not
entitled to be indemnified by the Company under this Agreement or otherwise; and
(B) reasonably cooperate with the Company concerning the
Proceeding. In the event that the Indemnitee executes the Undertaking
and Request for Payment, the Losses which are paid by the Company pursuant
thereto will be required to be repaid by the Indemnitee only if the Indemnitee
is required to do so under the terms of the Undertaking and Request for
Payment. Upon receipt of the Undertaking and Request for Payment, the
Company shall thereafter within five business days pay such Losses of the
Indemnitee as are noticed to the Company in reasonable detail arising out of the
matter described in the Undertaking and Request for Payment. No
security will be required in connection with any Undertaking and Request for
Payment.
(c) In
making any determination under Section 4(a), the Board will presume that
Indemnitee has satisfied the applicable standard of conduct, and the Company may
overcome such presumption only by its adducing clear and convincing evidence to
the contrary. No determination by the Company (including by its
Board) that the Indemnitee has not satisfied any applicable standard of conduct
will be a defense to any Proceeding by the Indemnitee for indemnification or
reimbursement or advance payment of expenses by the Company hereunder or create
a presumption that the Indemnitee has not met any applicable standard of
conduct.
5. Continuation
of Obligations. All obligations
of the Company under this Agreement will apply retroactively beginning on the
date the Indemnitee commenced as, and will continue during the period that the
Indemnitee remains, a director or executive officer of the Company or is, as
described above, a director, officer, employee, trustee, fiduciary, manager,
member, or agent of another corporation, partnership, limited liability company,
trust, employee benefit plan, or other enterprise and will continue thereafter
as long as the Indemnitee may be subject to any possible claim or any
threatened, pending or completed Proceeding as a result, directly or indirectly,
of being such a director, officer, employee, trustee, fiduciary, manager,
member, or agent.
6. Notification
and Defense of Claim. Promptly after
receipt by the Indemnitee of notice of the commencement of any Proceeding, if a
claim is to be made against the Company under this Agreement, the Indemnitee
shall notify the Company of the commencement thereof, but the delay or omission
to so notify the Company will not relieve the Company from any liability which
it may have to the Indemnitee under this Agreement, except to the extent the
Company is materially prejudiced by such delay or omission. With
respect to any such Proceeding of which the Indemnitee notifies the Company of
the commencement:
(a) The
Company will be entitled to participate therein at its own expense;
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(b) The
Company will be entitled to assume the defense thereof, jointly with any other
indemnifying party similarly notified, with counsel selected by the Company and
approved by the Indemnitee, which approval will not unreasonably be
withheld. After notice from the Company to the Indemnitee of the
Company's election to assume such defense, the Company will not be liable to the
Indemnitee under this Agreement for any legal or other Losses subsequently
incurred by the Indemnitee in connection with the defense thereof except as
otherwise provided below. The Indemnitee will have the right to
employ the Indemnitee's own counsel in such Proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of its
assumption of such defense will be the expenses of the Indemnitee unless (i) the
employment of such counsel by the Indemnitee has been authorized by the Company,
(ii) the Indemnitee, upon the advice of counsel, shall have reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of such defense, or (iii) the Company has not in fact employed
counsel to assume such defense, in any of which cases the fees and expenses of
such counsel will be the expenses of the Company. The Company will
not be entitled to assume the defense of any Proceeding brought by or on behalf
of the Company or as to which the Indemnitee, upon the advice of counsel, shall
have made the conclusion described in (ii), above. In the event the
Company assumes the defense of any Proceeding as provided in this Section 6(b),
the Company may defend or settle such Proceeding as it deems appropriate; provided, however, the Company
will not settle any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent, which
consent will not be unreasonably withheld.
(c) The
Company will not be required to indemnify the Indemnitee under this Agreement
for any amounts paid in settlement of any Proceeding without the Company's
written consent, which consent will not be unreasonably withheld.
(d) The
Indemnitee shall cooperate with the Company in all ways reasonably requested by
it in connection with the Company fulfilling its obligations under this
Agreement.
7. Enforcement. The Company
expressly confirms that it has entered into this Agreement and has assumed the
obligations of this Agreement in order to induce the Indemnitee to serve or
continue to serve as an executive officer and a director of the Company and
acknowledges that the Indemnitee is relying upon this Agreement in continuing in
such capacities. It is the intent of the Company that the Indemnitee
not be required to incur the expenses associated with the enforcement of the
Indemnitee's rights under this Agreement by litigation or other legal action
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee
hereunder. Accordingly, if it should appear to the Indemnitee that
the Company has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes any action
to declare this Agreement void or unenforceable, or institutes any action, suit
or proceeding to deny or to recover from, the Indemnitee the benefits intended
to be provided to the Indemnitee hereunder, the Company irrevocably authorizes
the Indemnitee from time to time to retain counsel of his choice, at the expense
of the Company as hereafter provided, to represent the Indemnitee in connection
with the initiation or defense of any litigation or other legal action, whether
by or against the Company or any director, officer, shareholder, or other person
affiliated with the Company, in any jurisdiction. Regardless of the
outcome thereof, the Company shall pay and be solely responsible for any and all
costs, charges, and expenses, including fees and expenses of attorneys and
others, reasonably incurred by the Indemnitee pursuant to this Section
7.
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8. Rights
Not Exclusive; Non-Transferable.
(a) The
indemnification provided by this Agreement will not be deemed exclusive of any
other rights to which the Indemnitee may be entitled under the Certificate of
Incorporation, the By-Laws, any insurance policy, any agreement, any vote of the
shareholders or disinterested directors of the Company, the Nevada Code or other
applicable law (whether by statute or judicial decision) or otherwise, both as
to action in the Indemnitee's official capacity and as to action in another
capacity while holding such office and will continue after the Indemnitee has
ceased to be a director or an officer, employee or agent of the Company or other
entity for which the Indemnitee's service gives rise to a right hereunder, and
will inure to the benefit of the Indemnitee's heirs, executors and
administrators.
(b) Except
as provided in Section 8(a) above, the rights to indemnification provided by
this Agreement are personal to the Indemnitee and are non-transferable by the
Indemnitee, and no party other than the Indemnitee is entitled to
indemnification under this Agreement.
9. Subrogation. In the event of
payment under this Agreement, the Company will be subrogated to the extent of
such payment to all of the rights of the recovery of the Indemnitee, who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.
10. No
Construction as Employment Agreement. Nothing contained
herein will be construed as giving the Indemnitee, if an employee of the Company
or any of its related enterprises, any right to be retained in the employ of the
Company or any of its related enterprises.
11. Separability. Each of the
provisions of this Agreement is a separate and distinct Agreement and
independent of the others so that, if any provision of this Agreement shall be
held to be invalid and unenforceable for any reason, such invalidity or
unenforceability will not affect the validity or enforceability of the other
provisions of this Agreement.
12. Modification
to Applicable Law; Amendments to Certification of Incorporation or
Bylaws.
(a) In
the event there is a change, after the date of this Agreement, in any applicable
law (including, without limitation the Nevada Code (whether by statute or
judicial decision)) which: (i) expands the right of a Nevada corporation to
indemnify a member of its board of directors or an officer, such change will be
automatically included within the scope of the Indemnitee's rights and Company's
obligations under this Agreement; or (ii) narrows the right of a Nevada
corporation to indemnify a member of its board of directors or an officer, such
change, to the extent not otherwise required by such law, will have no effect on
this Agreement or the parties' rights and obligations hereunder.
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(b) No
amendment to the Certificate of Incorporation or the By-Laws will deny,
diminish, or encumber the Indemnitee’s rights to indemnity pursuant to the
Certificate of Incorporation, the By-Laws, the Nevada Code, or any other
applicable law as applied to any act or failure to act occurring in whole or in
part prior to the date upon which the amendment was approved by the shareholders
of the Company (the “Effective
Date”). The Company shall not adopt any amendment to its
Certificate of Incorporation or By-Laws or take any other action the effect of
which is to deny, diminish, or encumber the Indemnitee’s rights to indemnity
pursuant to the Certificate of Incorporation, the By-Laws, the Nevada Code, or
any such other law.
13. Partial
Indemnity. If the Indemnitee
is entitled under any provision of this Agreement to indemnity by the Company
for some or a portion of the Losses actually or reasonably incurred by him or
her in the investigation, defense, appeal, or settlement of any Proceeding, but
not for the total amount thereof, the Company shall nevertheless indemnify the
Indemnitee for the portion of such Losses to which the Indemnitee is
entitled.
14. Governing
Law. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Nevada, without regard to any of its conflicts of law principles,
which could result in the application of the laws of another
jurisdiction.
15. Successors. This Agreement
will be binding upon, inure to the benefit of, and be enforceable by and against
the Company and its successors and assigns (including those referred to in the
next sentence). The Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of the Company,
expressly, absolutely, and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken
place.
16. Prior
Agreements. This Agreement
will supersede any other agreements entered into prior to the date of this
Agreement between the Company and the Indemnitee concerning the subject matter
of this Agreement.
17. Security. To ensure that
the Company’s obligations pursuant to this Agreement can be enforced by the
Indemnitee, the Company may, at its option, establish a trust pursuant to which
the Company’s obligations pursuant to this Agreement and other similar
agreements can be funded.
18. Notices. All notices and
other communications hereunder shall be in writing and shall be personally
delivered or sent by recognized overnight courier service (a) if to the Company,
to the then-current principal executive offices of the Company (Attention: Chief
Executive Officer) or (b) if to the Indemnitee, to the address of the Indemnitee
set forth on the signature page hereto. Either party may change its
address for the delivery of notices or other communications hereunder by
providing notice to the other party as provided in this Section
18. All notices will be effective upon actual delivery by the methods
specified in this Section 18.
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19. Modification. This Agreement
and the rights and duties of the Indemnitee and the Company hereunder may be
modified only by an instrument in writing signed by both parties
hereto.
20. Consent
to Jurisdiction. Each of the
Company and the Indemnitee each hereby irrevocably and unconditionally consents
to the jurisdiction of the courts of the State of Nevada for all purposes in
connection with any action or proceeding which arises out of or relates to this
Agreement and hereby waives any objections or defenses relating to jurisdiction
with respect to any lawsuit or other legal proceeding initiated in or
transferred to such courts.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date first above written.
| MARANI BRANDS, INC. | |||
|
|
By:
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| Name: Xxx Xxxxxxxxx | |||
| Title: Chief Executive Officer/ President | |||
| INDEMNITEE | |||
| Name: Xxxxxxx Xxxxxx | |||
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Exhibit
1
REQUEST
FOR INDEMNIFICATION
I,
____________________, being first duly sworn, do depose and say as
follows:
1. This
Request for Indemnification is submitted pursuant to the Indemnification
Agreement, dated as of ______________, 200__ (the “Indemnification
Agreement”), between Marani Brands, Inc., a Nevada corporation (the
“Company”),
and the undersigned.
2. I
am requesting indemnification against costs, charges, expenses (which may
include fees and expenses of attorneys and/or others), judgments, fines, and
amounts paid in settlement (collectively, “Liabilities”),
which have been actually and reasonably incurred by me in connection with a
claim referred to in Section 1 of the aforesaid Indemnification
Agreement.
3. With
respect to all matters related to any such claim, I am entitled to be
indemnified as herein contemplated pursuant to the aforesaid Indemnification
Agreement.
4. Without
limiting any other rights which I have or may have, I am requesting
indemnification against Liabilities which have or may arise out of
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| [Signature of Indemnitee] | |||
Exhibit
2
UNDERTAKING
AND REQUEST FOR PAYMENT
I,
___________________, being first duly sworn do depose and say as
follows:
1. This
Undertaking is submitted pursuant to the Indemnification Agreement, dated as
of _______, 200__, between Marani Brands, Inc., a Nevada corporation
(the “Company”),
and the undersigned (the “Indemnification
Agreement”).
2. I
am requesting payment of costs, charges, and expenses that I have reasonably
incurred or will reasonably incur in defending an action, suit or proceeding,
referred to in Section 1, or pursuant to Section 6, of the aforesaid
Indemnification Agreement.
3. The
costs, charges, and expenses for which payment is requested are, in general, all
expenses related to.
4. I
hereby undertake to: (a) repay all amounts paid pursuant hereto if it ultimately
is determined that I am not entitled to be indemnified by the Company under the
aforesaid Indemnification Agreement or otherwise; and (b) reasonably
cooperate with the Company concerning the action, suit, proceeding or
claim.
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| [Signature of Indemnitee] | |||
