INDEMNIFICATION AGREEMENT
Exhibit
10.10
AGREEMENT,
effective as of September 20, 2006, between China Mobility Solutions, Inc.,
a
Florida corporation (the “Company”), and [insert name of Officer and/or
Director] (the “Indemnitee”)
WHEREAS,
it is essential to the Company to retain and attract as directors and officers
the most capable persons available;
WHEREAS,
Indemnitee is a director or officer of the Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of litigation
and
other claims being asserted against directors and officers of public companies
in today’s environment;
WHEREAS,
Article V and Article VII of the Bylaws off the Company require the Company
to
indemnify and advance expenses to its directors and officers to the fullest
extent permitted by law and the Indemnitee has been serving and continues to
serve as a director or officer of the Company in part in reliance on such
Bylaws;
WHEREAS,
the Bylaws of the Company and the Florida Revised Statutes each provide that
the
indemnification provided herein shall not be exclusive;
WHEREAS,
in recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in
as effective manner, the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the fullest
extent (whether partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company’s directors’ and officers’ liability
insurance policies;
NOW,
THEREFORE, in consideration of the premises and of Indemnitee continuing to
serve the Company directly or, at its request, another enterprise, and intending
to be legally bound hereby, the parties hereto agree as follows:
1.
Certain Definitions:
(a)
Change in Control: shall be deemed to have occurred if (i) any “person” (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934,
as amended), other than a trustee or other fiduciary holding securities under
an
employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more off the total
voting power represented by the Company’s then outstanding Voting Securities, or
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and
any new director whose election by the Board of. Directors or nomination for
election by the Company’s stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election
was
previously so approved, cease for any reason to constitute a majority thereof,
or (iii) the stockholders of the Company approve a merger or consolidation
of
the Company with any other corporation, other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding immediately
after
such merger or consolidation, or the stockholders of the Company approve a
plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of ‘(in one transaction or a series of transactions)
all or substantially all the Company’s assets.
(b)
Claim: any threatened, pending or completed action, suit or proceeding, or
arty
inquiry or investigation, whether instituted by the Company or any other party,
that Indemnitee in good faith believes might lead to the institution of any
such
action, suit or proceeding, whether civil, criminal, administrative,
investigative or other.
(c)
Expenses: include attorneys’ fees and all other costs, expenses and obligations
paid or incurred in connection with investigating, defending, being a witness
in
or participating in (including on appeal), or preparing to defend, be a witness
in or participate in, any Claim relating to any Indemnifiable
Event.
(d)
Indemnifiable Event: any event or occurrence related to the fact that Indemnitee
is or was a director, officer, employee, agent or fiduciary of the Company,
or
is or was serving at the request of the Company as a director, officer,
employee, trustee, agent or fiduciary of another corporation, partnership,
joint
venture, employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity.
(e)
Independent Legal Counsel: an attorney or firm of attorneys, selected in
accordance with the provisions of Section 3, who shall not have otherwise
performed services for the Company or Indemnitee within the last five years
(other than with respect to matters concerning the tights of Indemnitee under
this Agreement, or of other indemnitees under similar indemnity
agreements).
(f)
Potential Change in Control: shall be deemed to have occurred if (i) the Company
enters into an agreement, the consummation. of which would result in the
occurrence of a Change in Control; (ii) any person (including the Company)
publicly announces an intention to take or to consider taking actions which
if
consummated would constitute a Change in Control; (iii) any person, other than
a
trustee or other fiduciary holding securities under an employee benefit plan
of
the Company or a corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of
stock
of the Company, who is or becomes the beneficial owner, directly or indirectly,
of securities of the Company representing 9.5% or more of the combined voting
power of the Company’s then outstanding Voting Securities, increases his
beneficial ownership of such securities by five percentage points (5%) or more
over the percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
(g)
Reviewing Party: any appropriate person or body consisting of a member or
members of the Company’s Board of Directors or any other person or body
appointed by the Board who is not a party to the particular Claim for which
Indemnitee is seeking indemnification, or Independent Legal
Counsel.
(h)
Voting Securities: any securities of the Company which vote generally in the
election of directors.
2.
Basic Indemnification Arrangement.
(a)
In
the event lndemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, a Claim by xxxxx of (or arising in part out of) an Indemnifiable
Event, the Company shall indemnify Indemnitee to the fullest extent permitted
by
law as soon as practicable but in any event no later than thirty days after
written demand is presented to the Company, against any and all Expenses,
judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection with
or in
respect of such Expenses, judgments, fines, penalties or amounts paid in
settlement) arising from or relating to such Claim. If so requested by
Indemnitee, the Company shall advance (within two business days off such.
request) any and all Expenses to Indemnitee (an “Expense Advance”).
(b)
Notwithstanding the foregoing, (i) the obligations of the Company under Section
2(a) shall be subject to the condition that the Reviewing Party shall not have
determined (in a written opinion, in any case in which the Independent Legal
Counsel referred to in Section 3 hereof is involved) that Indemnitee would
not
be permitted to be indemnified under applicable law, and (ii) the obligation
of
the Company to make an Expense Advance pursuant to Section 2(a) shall be subject
to the condition that, if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if Indemnitee has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure
a
determination that Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee would not be permitted
to be indemnified under applicable law shall not be binding and Indemnitee
shall
not be required to reimburse the Company for any Expense Advance until a final
judicial determination is made with respect thereto (as to which all rights
of
appeal therefrom, have been exhausted or lapsed). If there has not been a Change
in Control, the Reviewing Party shall be selected by the Board of Directors,
and
if there has been such a Change in Control (other than a Change in Control
which, has been approved by a majority of the Company’s Board of Directors who
were directors immediately prior to such Change in Control), the Reviewing
Party
shall be the Independent Legal Counsel referred to in Section 3 hereof. If
there
has been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, Indemnitee shall have
the
right to commence litigation in any court in the State of Florida having subject
matter jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear
in
any such, proceeding. Any determination by the Reviewing Party otherwise shall
be conclusive and binding on the Company and Indemnitee.
3.
Change
in Control. The Company agrees that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by a majority
of
the Company’s Board of Directors who were directors immediately prior to such
Change in Control) then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and Expense Advances
under this Agreement or any other agreement or Company Bylaw now or hereafter
in
effect relating to Claims for Indemnifiable Events, the Company shall seek
legal
advice only from Independent Legal Counsel selected by Indemnitee and approved
by the Company (which approval shall not be unreasonably withheld). Such
counsel, among other things, shall render its written opinion to the Company
and
Indemnitee as to whether and to what extent the Indemnitee would be permitted
to
be indemnified under applicable law. The Company agrees to pay the reasonable
fees of the Independent Legal Counsel referred to above and to indemnify fully
such counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
4.
Establishment of Trust. In the event of a Potential Change in Control, the
Company shall, upon written request by Indemnitee, create a trust for the
benefit of Indemnitee and from time to time upon written request of Indemnitee
shall fund such trust in an amount sufficient to satisfy any and all Expenses
reasonably anticipated at the time of each such request to be incurred in
connection with investigating, preparing for and defending any Claim relating
to
an Indemnifiable Event, and any and all judgments, fines, penalties and
settlement amounts of any and all Claims relating to an Indemnifiable Event
from
time to time actually paid or claimed, reasonably anticipated or proposed to
be
paid. The amount or amounts to be deposited in the trust pursuant to the
foregoing funding obligation shall be determined by the Reviewing Party, in
any
case in which the Independent Legal Counsel referred to above is involved.
The
terms of the trust shall provide that (i) the trust shall not be revoked or
the
principal thereof invaded, without the written consent of the Indemnitee, (ii)
the trustee shall advance, within two business days of a request by the
Indemnitee, any and all Expenses to the Indemnitee (and the Indemnitee hereby
agrees to reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company in
accordance with the funding obligation set forth above, (iv) the trustee shall
promptly pay to Indemnitee all amounts for which lndemnitee shall be entitled
to
indemnification pursuant to this Agreement of otherwise, and (v) all unexpended
funds in such trust shall revert to the Company upon a final determination
by
the Reviewing Party or a court of competent jurisdiction, as the case may be,
that Indemnitee has been fully indemnified under the terms of this Agreement
The
trustee shall be chosen by Indemnitee. Nothing in, this Section 4 shall relieve
the Company of any of its obligations under this Agreement.
5.
Indemnification for Additional Expenses. The Company shall indemnify Indemnitee
against any and all expenses (including attorneys’ fees) and, if requested by
Indemnitee, shall (within two business days of such request) advance such
expenses to Indemnitee, which are incurred by Indemnitee in connection with
any
action brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement or Company
Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors’ and officers’ liability insurance
policies maintained by the Company, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advance expense payment
or
insurance recovery, as the case may be.
6.
Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising
from or relating to a Claim but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense off any or all Claims relating in whole
or
in part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses incurred in connection therewith.
7.
Burden
of Proof in connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder
the
burden of proof shall be on the Company to establish that Indemnitee is not
so
entitled.
8.
No
Presumptions. For purposes of this Agreement, the termination of any claim,
action, suit or proceeding, by judgment, order, settlement (whether with. or
without court approval) or conviction, or upon a plea of nolo contendere, or
its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court
has
determined that indemnification is not permitted by applicable law. In.
addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did
not
have such. belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
applicable law shall be a defense to Indemnitee’s claim or create a presumption
that Indemnitee has not met any particular standard of conduct or did not have
any particular belief.
9.
Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition
to any other rights Indemnitee may have under the Company’s Bylaws or the
Florida Revised Statutes or otherwise. To the extent that a change in the
Florida Revised Statutes (whether by statute or judicial decision) permits
greater indemnification by agreement than would be afforded currently under
the
Company’s Bylaws and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change.
10.
Liability Insurance. To the extent the Company maintains an insurance policy
or
policies providing directors’ and officers’ liability insurance, Indemnitee
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 Company director
or officer.
11.
Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against Indemnitee,
Indemnitee’s spouse, heirs, executors or personal or legal, representatives
after the expiration of two years from the date of accrual of such cause of
action, and any claim or cause of action of the Company shall be extinguished
and deemed released unless asserted by the timely filing of a legal action
within such two-year period; provided, however, that if any shorter period
of
limitations is otherwise applicable to any such cause of action such shorter
period shall govern.
12.
Amendments, Etc. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both 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.
13.
Subrogation. In the event of payment under this Agreement, the Company shall
be
subrogated to the extent of such payment to all of the rights of recovery of
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.
14.
No
Duplication of Payments. The Company shall not be liable under this Agreement
to
make any payment in connection with any Claim made against lndemnitee to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy, Bylaw or otherwise) of the amounts otherwise indemnifiable
hereunder.
15.
Binding Effect, Etc. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets off the Company, spouses, heirs, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, spouses, heirs,
executors and personal and legal representatives. This Agreement shall continue
in. effect regardless of whether Indemnitee continues to serve as an officer
or
director of the Company or of any other enterprise at the Company’s
request.
16.
Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single
section, paragraph or sentence) are held by a :court of competent jurisdiction
to be invalid, void or otherwise unenforceable in any respect, and the validity
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired and shall remain
enforceable to the fullest extent permitted by law.
17.
Governing Law. This Agreement shall be governed by and construed and enforced
in
accordance with the law’s of the State of Florida applicable to contracts made
and to be performed in such state without giving effect to the principles of
conflicts of laws.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
____
day of September, 2006
CHINA
MOBILITY SOLUTIONS, INC.
By:__________________
Name:________________
Title:_________________
INDEMNITEE
By:____________________
Name:__________________
Title:___________________
INDEMNITEE
By:____________________
Name:__________________
Title:___________________
