INDEMNIFICATION AGREEMENT
Exhibit
10.1
This
Indemnification Agreement is dated as ________, 2011 (this “Agreement”)
and is between C2 Global Technologies Inc., a Florida corporation (the “Company”),
and ________ (the “Indemnitee”).
The
Company believes that, in order to attract and retain highly competent persons
to serve as directors and officers, it must provide such persons with adequate
protection through indemnification against the risks of claims and actions
against them arising out of their services to and activities on behalf of the
Company.
The
Company desires and has requested the Indemnitee to serve as an officer or
director of the Company and, in order to induce the Indemnitee to serve as an
officer or director of the Company, the Company is willing to grant the
Indemnitee the indemnification provided for herein. The Indemnitee is
willing to so serve on the basis that such indemnification be
provided.
The
parties by this Agreement desire to set forth their agreement regarding
indemnification and the advancement of expenses.
In
consideration of the Indemnitee’s service to the Company and the covenants and
agreements set forth below, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows.
1. The
Company will pay on behalf of the Indemnitee and his or her heirs, executors,
administrators, or assigns, any amount which he or she is or becomes legally
obligated to pay because of any action, suit, or proceeding, whether civil,
criminal, administrative or investigative, the Indemnitee is made or is
threatened to be made a party to or involved in (“Proceeding”)
because of any act or omission or neglect or breach of duty, including any
actual or alleged error or misstatement or misleading statement, which he or she
commits or suffers while in his or her capacity as a director or officer of the
Company, or at the request of the Company, acting as a director, officer,
trustee, fiduciary, employee, or agent (collectively, “Agent”)
of another foreign or domestic corporation, limited liability company,
partnership, joint venture, trust, or any other enterprise or entity whatsoever,
including without limitation, employee benefit plans (collectively, “Affiliate”),
or by reason of the fact that the Indemnitee is or was a director or officer of
the Company or is or was serving at the request of the Company as an Agent of an
Affiliate, whether the basis of such Proceeding is alleged action in an official
capacity, or in any other capacity, to the fullest extent authorized by the
Florida Business Corporation Act (or in the event the Company reincorporates in
another state, the corporation act of such other state, on and after the
effective date of such reincorporation), as the same exists on the date hereof
or as may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment); provided, however, that except with respect to Proceedings
seeking to enforce rights to indemnification hereunder, the Company shall
indemnify the Indemnitee with respect to Proceedings initiated by the Indemnitee
only if such Proceeding was authorized by the Board of Directors of the Company.
The indemnification provided for herein shall continue after the Indemnitee has
ceased to be a director or officer of the Company or an Agent of an
Affiliate.
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2. The
payments which the Company will be obligated to make hereunder shall include any
expense, liability or loss of the Indemnitee, including without limitation,
damages, judgments, fines, penalties, amounts paid or to be paid in settlement
or in costs, costs of investigation, attorneys’ fees and any other costs of
defense of legal actions, claims or proceedings and appeals therefrom, and costs
of attachment or similar bonds, and any other amounts actually incurred or
suffered by the Indemnitee in connection with any Proceeding. The
Company shall advance to the Indemnitee as soon as practicable any and all
attorneys’ fees and any other costs of investigation or defense upon receipt by
the Company of an undertaking, if such undertaking is required by law, by or on
the behalf of the Indemnitee to repay all amounts so advanced if a final
adjudication shall establish that the Indemnitee was not entitled to be
indemnified.
3. The
Company shall not be liable under this Agreement to make any payment in
connection with any Proceeding:
(a) to
the extent of any payment that is actually made to the Indemnitee under a valid
and collectible insurance policy;
(b) for
which the Indemnitee is indemnified by the Company otherwise than pursuant to
this Agreement; or
(c) if a
judgment or other final adjudication shall establish that such payment is
prohibited by applicable law or is against public policy.
4. If
a claim under this Agreement is not paid by the Company, or on its behalf,
within sixty (60) days after a written claim has been received by the Company
(except in the case of a claim for expenses incurred in a Proceeding in advance
of its final disposition in which case the applicable period shall be twenty
(20) days), the Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim; and, if successful in whole
or in part in such suit or in a suit brought by the Company to recover an
advancement of expenses pursuant to the terms of an undertaking, the Indemnitee
shall also be entitled to be paid the expense of prosecuting or defending such
claim.
5. The
Company shall maintain in full force and effect, at its own expense, insurance
coverage for the Indemnitee in amounts and scope customary for companies of like
size and business, such insurance coverage to provide the Indemnitee with
coverage for any liability asserted against, and incurred by, the Indemnitee or
on the Indemnitee’s behalf by reason of the fact that the Indemnitee is or was
or has agreed to serve as a director or officer of the Company or at the
Company’s request as an Agent of an Affiliate. Such insurance policies shall
have coverage terms and policy limits at least as favorable to the Indemnitee as
the insurance coverage provided to any other director or officer of the Company.
The Company agrees that money damages would not be a sufficient remedy for any
breach of this provision and that the Indemnitee shall be entitled to specific
performance and injunctive or other equitable relief as remedies for any such
breach and that such remedies shall not be deemed to be the exclusive remedies
of the Indemnitee, and shall be in addition to all other remedies available at
law or in equity to the Indemnitee.
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6. The
Indemnitee shall give to the Company notice as soon practicable of any
Proceeding for which indemnity will or could be sought under this Agreement, the
Company’s Bylaws, or any other obligation whatsoever of the Company to indemnify
the Indemnitee or for which insurance coverage could be available.
7. The
Indemnitee shall give the Company and any insurance company providing Insurance
coverage, such information and cooperation in the defense of a Proceeding as
they may reasonably require and as shall be within the Indemnitee’s power;
provided, however, that if a Proceeding is brought by the Company, or if the
Company is assisting or cooperating in the prosecution of a Proceeding against
the Indemnitee, the Indemnitee shall only be required to provide information to
and cooperate with any insurance company providing insurance
coverage.
8. Nothing
herein shall be deemed to diminish or otherwise restrict the Indemnitee’s right
to indemnification under any provision of the Certificate of Incorporation or
Bylaws of the Company, under Florida law (or in the event the Company
reincorporates in another state, such other state’s law on or after the
effective date of such reincorporation), or under any other obligation
whatsoever of the Company to indemnify the Indemnitee.
9. 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 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. The
provisions of this Agreement shall be severable in the event that any of the
provisions hereof are held by a court of competent jurisdiction to be invalid,
void or otherwise unenforceable, and the remaining provisions shall remain
enforceable to the fullest extent permitted by law. Furthermore, to
the fullest extent permitted, the provisions of this Agreement shall be
construed so as to give effect to the intent manifested by any provision held
invalid, void or otherwise unenforceable.
11. This
Agreement shall be binding upon all successors and assigns of the Company
(including any transferee of all or substantially all of its assets and any
successor by merger, consolidation, or operation of law) and shall inure to the
benefit of the heirs, personal representatives and estate of the
Indemnitee.
12. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one instrument.
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13. This
Agreement shall be governed by and construed in accordance with the laws of the
state of Florida without reference to its conflicts of law principles. The
foregoing notwithstanding, in the event the Company reincorporates in another
state, on and after the effective date of such reincorporation, this Agreement
shall be governed by the laws of such state without reference to such state’s
conflicts of law principles.
[signature
page follows]
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The
parties hereto have caused this Agreement to be duly executed and signed as of
the day and year first above written.
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C2
GLOBAL TECHNOLOGIES INC.
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By:
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Name:
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Title:
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INDEMNITEE:
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Name:
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