INDEMNIFICATION AGREEMENT
Exhibit 6.21
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”)
is made and entered into as of the ___ day of ________________,
20__, by and between Level Brands Inc., a North Carolina
corporation (the “Corporation”),
and ___________________________ (“Indemnified
Party”), an individual having an address at
__________________________________________.
RECITALS:
WHEREAS, the
Indemnified Party is a [director] of the Corporation and performs a
valuable service in such capacity for the Corporation;
WHEREAS, it is
essential to the Corporation to retain and attract, as directors
and officers, the most capable persons available;
WHEREAS, both the
Corporation and the Indemnified Party recognize the increased risk
of litigation and other claims currently being asserted against
directors and officers of corporations; and
WHEREAS, in order
to induce the Indemnified Party to continue to serve as a
[director] of the Corporation, the Corporation has determined and
agreed to enter into this Agreement with the Indemnified
Party;
NOW,
THEREFORE, in consideration of the Indemnified Party’s
continued service as a director after the date hereof, the parties
agree as follows:
1. Definitions.
As used in this Agreement:
(a) The term
“Proceeding”
shall include any threatened, pending or completed action, suit,
arbitration, alternative dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought by or in the
right of the Corporation or otherwise and whether of a civil,
criminal, administrative or investigative nature, and whether
formal or informal in any case, in which the Indemnified Party is a
party or is threatened to be made a party, by reason of the fact
that the Indemnified Party: (i) is, was or agreed to become a
director or an officer of the Corporation (or of any predecessor or
subsidiary of the Corporation or any successor to the Corporation
by merger), including any actions taken by the Indemnified Party in
such capacity; or (ii) is or was serving or agreed to serve at the
request of the Corporation as a director, partner, trustee,
officer, employee or agent of another corporation, domestic or
foreign, non-profit or for-profit, partnership, joint venture,
trust or other enterprise, in each case described in subsection (i)
and (ii) above whether or not he is acting or serving in any such
capacity at the time any Expense is incurred for which
indemnification or reimbursement can be provided under this
Agreement. “Proceeding” also includes an action by the
Indemnified Party, including without limitation, any mediation or
arbitration to establish or enforce a right of Indemnified Party
under this Agreement.
(b) The term
“Expense”
or “Expenses”
shall mean all costs, charges and expenses incurred in connection
with any proceeding (including reasonable expert, consultant and
attorneys’ fees and all reasonable disbursements), judgments,
fines and amounts paid in settlement including, without limitation,
expenses of investigation, judicial or administrative proceedings
and appeals.
2. Actions,
Suits and Proceedings Other than by or in the Right of the
Corporation. The Corporation shall indemnify the Indemnified
Party in accordance with the provisions of this Agreement if the
Indemnified Party is a party or is threatened to be made a party to
any Proceeding (other than an action against the Indemnified Party
by or in the right of the Corporation) to the greatest extent
permitted by governing law against all Expenses actually and
reasonably incurred by the Indemnified Party or on the Indemnified
Party’s behalf in connection with such Proceeding and any
appeal therefrom, unless it is determined by final, non-appealable
order of a court of competent jurisdiction that governing law bars
and prohibits the Corporation from providing such indemnification;
provided further, that notwithstanding anything herein contained to
the contrary, any settlement of a Proceeding must be approved in
advance in writing by the Corporation (which approval shall not be
unreasonably withheld). The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Corporation is barred and prohibited
by governing law from providing indemnification to the Indemnified
Party.
3. Actions
or Suits by or in the Right of the Corporation. The
Corporation shall indemnify the Indemnified Party in accordance
with the provisions of this Agreement if the Indemnified Party is a
party, or is threatened to be made a party, to any Proceeding
brought against the Indemnified Party by or in the right of the
Corporation, to the greatest extent permitted by governing law,
against all Expenses actually and reasonably incurred by the
Indemnified Party or on the Indemnified Party’s behalf in
connection which such Proceeding and any appeal therefrom, unless
it is determined by final, non-appealable order of a court of
competent jurisdiction that governing law bars and prohibits the
Corporation from providing such indemnification; except that
indemnification shall be made in respect of any claim, issue or
matter as to which the Indemnified Party shall have been adjudged
to be liable to the Corporation by final, non-appealable order of a
court of competent jurisdiction only to the extent that it is
determined by final, non-appealable order of a court of competent
jurisdiction, upon application, that, despite the adjudication of
such liability but in view of all the circumstances of the case,
the Indemnified Party is fairly and reasonably entitled to
indemnity for Expenses in respect of such claim, issue or matter to
the extent such court shall deem proper.
4. Costs
and Expenses Relating to Service as a Witness. The
Corporation shall indemnify the Indemnified Party in accordance
with the provisions of this Agreement with respect to all Expenses
incurred or suffered by the Indemnified Party as a result of the
service, attendance or appearance by the Indemnified Party as a
witness (or in any other non-party capacity) in any suit or
proceeding, whether brought by or in the right of the Corporation
or otherwise and whether of a civil, criminal, administrative or
investigative nature (including any part thereof such as appearance
at a hearing, deposition or trial or any actions taken in response
to any subpoena, order, discovery request or the like) if such
service, attendance or appearance related to or results from the
fact that he (i) is, was or agreed to become a director or an
officer of the Corporation; or (ii) is or was serving or agreed to
serve at the request of the Corporation as a director, partner,
trustee, officer, employee or agent of another corporation,
domestic or foreign, non-profit or for-profit, partnership, joint
venture, trust or other enterprise, in each case described in
subsection (i) and (ii) above whether or not he is acting or
serving in any such capacity at the time any Expense is incurred
for which indemnification or reimbursement can be provided under
this Agreement (a “Witness
Proceeding”).
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5. Notification
and Defense of Claim. As a condition precedent to the
Indemnified Party’s right to be indemnified, the Indemnified
Party must promptly notify the Corporation of receipt of notice of
any Proceeding or Witness Proceeding for which indemnity is sought,
provided, however, that the failure to give such notice will not
relieve the Corporation of any liability that it may have to any
Indemnified Party, except and only to the extent that it is
determined by final, non-appealable order of a court of competent
jurisdiction that the defense of the Indemnified Party in such
Proceeding or Witness Proceeding was materially prejudiced by the
Indemnified Party’s failure to give such notice. With respect
to any Proceeding or Witness Proceeding of which the Corporation is
so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at
its own expense, with legal counsel reasonably acceptable to the
Indemnified Party. After notice from the Corporation to the
Indemnified Party of its election so to assume such defense, the
Corporation shall not be liable to the Indemnified Party for any
attorney fees subsequently incurred by the Indemnified Party for so
long as the Corporation maintains such defense in connection with
such claim, other than as provided below in this Paragraph 5. The
Indemnified Party shall have the right to employ his own counsel in
connection with such Proceeding or Witness Proceeding, but the fees
and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at
the expense of the Indemnified Party unless (i) the employment of
counsel by the Indemnified Party has been authorized by the
Corporation, (ii) counsel to the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest or
position on any significant issue between the Corporation and the
Indemnified Party in the conduct of such Proceeding or Witness
Proceeding, or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel for the Indemnified
Party shall be at the expense of the Corporation, except as
otherwise expressly provided by this Agreement.
6. Advance
of Costs, Charges and Expenses. Subject to the provisions of
Paragraph 7 below, any Expenses for which the Corporation is
authorized to indemnify the Indemnified Party under the terms of
this Agreement (including costs, charges, and expenses, including
reasonable attorney’s fees) incurred by an Indemnified Party
in connection with any Proceeding or Witness Proceeding shall be
paid by the Corporation in advance of the final disposition of such
matter; provided, however, that the payment of such Expenses in
advance of the final disposition of such Proceeding or Witness
Proceeding shall be made only upon receipt of (i) statements by or
on behalf of the Indemnified Party reasonably evidencing the
Expenses to be incurred, and (ii) an undertaking by or on behalf of
the Indemnified Party to repay all amounts so advanced in the event
that it shall ultimately be determined that the Indemnified Party
is not entitled to be indemnified by the Corporation as authorized
in this Agreement. Such undertaking shall be accepted without
reference to the financial ability of the Indemnified Party to make
such repayment. Any advances and undertakings to repay pursuant to
this Paragraph 6 shall be unsecured and interest free.
7. Procedure
for Indemnification. Any indemnification or advancement of
expenses pursuant to Paragraphs 2, 3, 4, 5 or 6 of this Agreement
shall be made promptly, and in any event within thirty (30) days
after receipt by the Corporation of the written request of the
Indemnified Party. The right to indemnification or advances as
granted by this Agreement shall be enforceable by the Indemnified
Party in any court of competent jurisdiction if the Corporation
denies such request, in whole or in part, or if no disposition
thereof is made within the thirty (30) day period referred to
above. The Indemnified Party’s costs, charges and expenses
(including reasonable attorneys’ fees) incurred in connection
with successfully establishing his right to indemnification, in
whole or in part, in any such proceeding shall also be indemnified
by the Corporation. Unless otherwise provided by governing law, the
burden of proving that the Indemnified Party is not entitled to
indemnification or advancement of expenses under this Agreement
shall be on the Corporation.
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8. Other
Rights. The indemnification and advancement of Expenses
provided by this Agreement shall not be deemed exclusive of any
other rights to which the Indemnified Party may be entitled under
the Certificate of Incorporation of the Corporation, the Bylaws of
the Corporation or any law (common or statutory), agreement or vote
of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in any other
capacity while holding office for the Corporation, and shall
continue as to the Indemnified Party even though he shall have
ceased to be a director or officer, and shall inure to the benefit
of the estate, heirs, executors and administrators of the
Indemnified Party.
9. Partial
Indemnification. If the Indemnified Party is entitled under
any provision of this Agreement to indemnification by the
Corporation for some or a portion of the Expenses incurred by or on
behalf of the Indemnified Party in connection with any Proceeding
or Witness Proceeding but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify the
Indemnified Party for the portion of such Expenses to which the
Indemnified Party is entitled.
10. Prohibited
Indemnification. No
indemnification pursuant to this Agreement shall be paid by the
Corporation on account of any Proceeding in which judgment is
rendered against Indemnified Party for an accounting of profits
made from the purchase or sale by Indemnified Party of securities
of the Corporation pursuant to the provisions of Section 16(b) of
the Exchange Act, or similar provisions of any federal, state, or
local laws or for which payment is prohibited by
law.
11. Initiation
of Proceeding. Notwithstanding anything in this Agreement to
the contrary, Indemnified Party shall not be entitled to
indemnification pursuant to this Agreement in connection with any
Proceeding initiated by Indemnified Party against the Corporation
or any director or officer of the Corporation unless (i) the
Corporation has joined in or the board of directors has consented
to the initiation of such Proceeding; (ii) the Proceeding is one to
enforce Indemnified Party’s rights under this Agreement, or
any other agreement or insurance policy or the Corporation’s
Certificate of Incorporation or Bylaws to indemnification or
advancement of expenses; or (iii) as otherwise required under
applicable law.
12. Reimbursement
to Corporation by Indemnified Party; Limitation on Amounts Paid by
Corporation. To the extent the Indemnified Party has been
indemnified by the Corporation hereunder for certain Expenses, and
the Corporation has fully and completely fulfilled all its
obligations to the Indemnified Party hereunder, and the Indemnified
Party later receives payments from any insurance carrier covering
the same Expenses paid by the Corporation hereunder, the
Indemnified Party shall reimburse the Corporation hereunder for
such amounts received from the insurer net of costs of collection.
To the extent the Indemnified Party has been indemnified by the
Corporation hereunder and it is later determined by a court of
competent jurisdiction that the Indemnified Party was not entitled
to indemnification under Section 2 or 3, as the case may be, the
Indemnified Party shall immediately reimburse the Corporation
hereunder for all such amounts. Notwithstanding anything contained
herein to the contrary, the Indemnified Party shall not be entitled
to recover amounts under this Agreement which, when added to the
amount of indemnification payments made to, or on behalf of, the
Indemnified Party, under the Certificate of Incorporation or Bylaws
of the Corporation, in the aggregate exceed the Expenses actually
and reasonably incurred by the Indemnified Party
(“Excess
Amounts”). To the extent the Corporation has paid
Excess Amounts to the Indemnified Party, the Indemnified Party
shall be obligated to promptly reimburse the Corporation for such
Excess Amounts.
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13. Continuation
of Rights and Obligations. All rights and obligations of the
Corporation and the Indemnified Party hereunder shall continue in
full force and effect despite the subsequent amendment or
modification of the Corporation’s Certificate of
Incorporation or Bylaws, as such are in effect on the date hereof,
and such rights and obligations shall not be affected by any such
amendment or modification, any resolution of directors or
stockholders of the Corporation, or by any other corporate action
which conflicts with or purports to amend, modify, limit or
eliminate any of the rights or obligations of the Corporation
and/or the Indemnified Party hereunder.
14. Severability;
Survival. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction,
the Corporation shall nevertheless indemnify the Indemnified Party
as to Expenses to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated or
by any other applicable law. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors,
successors and assigns, including, without limitation, any
successor to the Corporation by way of merger, consolidation and/or
sale or disposition of all or substantially all of the shares of
the Corporation.
15. Counterparts;
Facsimile Signatures. This Agreement may be executed in one
or more counterparts, including via facsimile or other electronic
means, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the
same Agreement.
16. Modification
and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all of the
parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
17. Notice
by Indemnified Party. Indemnified Party agrees promptly to
notify the Corporation 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. Failure of Indemnified Party to provide such notice
shall not constitute a waiver of any of the rights or privileges of
the Indemnified Party hereunder or render the By-laws, any other
source of indemnification or applicable law.
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18. Notices.
Any and all notices or elections permitted or required to be made
under this Agreement shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed electronic mail or facsimile
if sent during normal business hours of the recipient, (c) five (5)
days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) day after
deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All
communications shall be sent to the respective parties at their
address as set forth on the signature page, or to such e-mail
address, facsimile number or address as subsequently modified by
written notice given in accordance with this Paragraph 15. If
notice is given to the Corporation, a copy shall also be sent to
[XXXX OR XXXXX CONTACT] .
19. Liability
Insurance. To the extent the Corporation maintains an
insurance policy or policies providing general and/or
directors’ and officers’ liability insurance,
Indemnified Party shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the
coverage available for any Corporation director or
officers.
20. Governing
Law. The parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the
State of North Carolina.
IN
WITNESS WHEREOF, the parties hereby have caused this Agreement to
be duly executed and signed effective as of the day and year first
above written.
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LEVEL
BRANDS INC.
By:
Name: Xxxx
Xxxxxxx
Title:
CFO
INDEMNIFIED
PARTY:
.
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