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EXHIBIT 10.15
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this 25th day of January, 2000
by and between MigraTEC, Inc., a Florida corporation (the "Corporation"), and
__________ ("Agent").
RECITALS
WHEREAS, Agent performs a valuable service to the Corporation in his
capacity as a Director of the Corporation; and
WHEREAS, the shareholders of the Corporation have adopted bylaws (the
"Bylaws") providing for the indemnification of the directors, officers,
employees and other agents of the Corporation, including persons serving at the
request of the Corporation in such capacities with other corporations or
enterprises, as authorized by the Florida Business Corporation Act, as amended
(the "Code"); and
WHEREAS, the Bylaws and the Code, by their non-exclusive nature, permit
contracts between the Corporation and its agents, officers, employees and other
agents with respect to indemnification of such persons; and
WHEREAS, in order to induce Agent to serve and continue to serve as
Director of the Corporation, the Corporation has determined and agreed to enter
into this Agreement with Agent;
NOW, THEREFORE, in consideration of Agent's service and continued
service as after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Services to the Corporation. Agent will serve as Director of the
Corporation or as a director, officer or other fiduciary of an affiliate of the
Corporation (including any employee benefit plan of the Corporation) faithfully
and to the best of his ability so long as he is duly elected and qualified in
accordance with the provisions of the Bylaws or other applicable charter
documents of the Corporation or such affiliate; provided, however, that Agent
may at any time and for any reason resign from such position.
2. Indemnification of Agent. The Corporation hereby agrees to defend,
hold harmless and indemnify Agent to the fullest extent authorized or permitted
by the provisions of the Bylaws and the Code, as the same may be amended from
time to time (but, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than the Bylaws or the
Code permitted prior to adoption of such amendment).
3. Additional Indemnification. In addition to and not in limitation of
the indemnification otherwise provided for herein, and subject only to the
exclusions set forth in Section 4 hereof, the Corporation hereby further agrees
to defend, hold harmless and indemnify Agent:
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(i) against any and all expenses (including attorneys' fees),
witness fees, damages, judgments, fines and amounts paid in settlement
and any other amounts that Agent becomes legally obligated to pay
because of any claim or claims made against or by him in connection
with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitrational, administrative or investigative
(including an action by or in the right of the Corporation) to which
Agent is, was or at any time becomes a party, or is threatened to be
made a party, by reason of the fact that Agent is, was or at any time
becomes a director, officer, employee or other agent of Corporation, or
is or was serving or at any time serves at the request of the
Corporation as a director, officer, employee or other agent of another
corporation, partnership joint venture, trust, employee benefit plan or
other enterprise; and
(ii) otherwise to the fullest extent as may be provided to
Agent by the Corporation under the non-exclusivity provisions of the
Code and the Bylaws.
4. Limitations on Additional Indemnification. No indemnity pursuant to
Section 3 hereof shall be paid by the Corporation:
(i) on account of any claim against Agent for an accounting of
profits made from the purchase or sale by Agent of securities of the
Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law; or
(ii) if such indemnification is not lawful, and in such case,
only to the extent such indemnification is not lawful.
5. Continuation of Indemnification. All agreements and obligations of
the Corporation contained herein shall continue during the period Agent is a
director, officer, employee or other agent of the Corporation (or is or was
serving at the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so long as Agent
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 Agent was serving in
the capacity referred to herein.
6. Partial Indemnification. Agent shall be entitled under this
Agreement to indemnification by the Corporation for a portion of the expenses
(including attorneys' fees), witness fees, damages, judgments, fines and amounts
paid in settlement and any other amounts that Agent becomes legally obligated to
pay in connection with any action, suit or proceeding referred to in Section 3
hereof even if not entitled hereunder to indemnification for the total amount
thereof, and the Corporation shall indemnify Agent for the maximum portion
thereof to which Agent is lawfully entitled.
7. Notification and Defense of Claim. Not later than fifteen (15) days
after receipt by Agent of notice of the commencement of any action, suit or
proceeding, Agent will, if a claim in
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respect thereof is to be made against the Corporation under this Agreement,
notify the Corporation of the commencement thereof, but the omission so to
notify the Corporation will not relieve it from any liability which it may have
to Agent otherwise than under this Agreement, or under this Agreement except to
the extent the Corporation is directly prejudiced by such failure to so notify
the Corporation. With respect to any such action, suit or proceeding:
(i) the Corporation will be entitled to participate therein at
its own expense;
(ii) except as otherwise provided below, the Corporation may,
at its option and jointly with any other indemnifying party similarly
notified and electing to assume such defense, assume the defense
thereof, with counsel reasonably satisfactory to Agent. After notice
from the Corporation to Agent of its election to assume the defense
thereof, the Corporation will not be liable to Agent under this
Agreement for any legal or other expenses subsequently incurred by
Agent in connection with the defense thereof except for reasonable
costs of investigation or otherwise as provided below. Agent shall have
the right to employ separate counsel in such action, suit or 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 Agent unless (i) the employment of counsel by Agent has
been authorized by the Corporation, (ii) Agent shall have reasonably
concluded that there may be a conflict of interest between the
Corporation and Agent in the conduct of the defense of such action or
(iii) the Corporation shall not in fact have employed counsel
reasonably satisfactory to Agent to assume the defense of such action,
in each of which cases the fees and expenses of Agent's separate
counsel shall be at the expense of the Corporation. The Corporation
shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Corporation or as to which
Agent shall have made the conclusion provided for in clause (ii) above;
and
(iii) the Corporation shall not be liable to indemnify Agent
under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent, which shall not be
unreasonably withheld. The Corporation shall be permitted to settle any
action except that it shall not settle any action or claim in any
manner which would impose any penalty or limitation on Agent, or any
non-monetary obligation, without Agent's written consent, which may be
given or withheld in Agent's sole discretion.
8. Expenses. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all expenses
incurred by Agent in connection with such proceeding upon receipt of an
undertaking by or on behalf of Agent to repay said amounts if it shall be
determined ultimately that Agent is not entitled to be indemnified under the
provisions of this Agreement, the Bylaws or the Code.
9. Enforcement. Any right to indemnification or advances granted by
this Agreement to Agent shall be enforceable by or on behalf of Agent in any
court of competent jurisdiction if (i) the claim for indemnification or advances
is denied, in whole or in part, (ii) no disposition of such claim
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is made within thirty (30) days of request therefor, or (iii) the Corporation
should fail to comply with the provisions of Section 8 hereof Agent, in such
enforcement action, if successful in whole or in part, shall be entitled to be
paid also the expense of prosecuting his claim. It shall be a defense to any
action for which a claim for indemnification is made under Section 3 hereof
(other than an action brought to enforce a claim for expenses pursuant to
Section 8 hereof, provided that the required undertaking has been tendered to
the Corporation) that Agent is not entitled to indemnification because of the
limitations set forth in Section 4 hereof. Neither the failure of the
Corporation (including its Board of Directors or its stockholders) to have made
a determination prior to the commencement of such enforcement action that
indemnification of Agent is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors or its
stockholders) that such indemnification is improper shall be a defense to the
action or create a presumption that Agent is not entitled to indemnification
under this Agreement or otherwise.
10. Non-Exclusivity of Rights. The rights conferred on Agent by this
Agreement shall not be exclusive of any other right which Agent may have or
hereafter acquire under any statute, provision of the Corporation's Articles of
Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
11. Survival of Rights.
(i) The rights of Agent by this Agreement shall continue after
Agent has ceased to be a director, officer, employee or other agent of
the Corporation or to serve at the request of the Corporation as a
director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise and shall inure to the benefit of Agent's heirs, executors
and administrators.
(ii) The Corporation shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Corporation,
expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to
perform if no such succession had taken place.
12. Separability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Corporation shall nevertheless indemnify Agent
to the fullest extent provided by the Bylaws, the Code or any other applicable
law.
13. Choice of Law. This Agreement shall be governed by the laws of the
State of Florida, excluding its choice of law provisions.
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14. Amendment and Termination. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
15. Identical Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute but one and the same
Agreement. Only one such counterpart need be produced to evidence the existence
of this Agreement.
16. Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
17. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given upon
delivery or attempted delivery during normal business hours to Agent, to its
most recent address as set forth in the Company's records, or to the Company, to
its principal executive offices, or to such other address as may have been
furnished to Agent by the Corporation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
MIGRATEC, INC.
By:
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Xxxxxx Xxxxxxxxxx
President
AGENT
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