Exhibit 10.3
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of October
13, 2004, by and between DAG Enterprises, Inc. and Xxxxxxx X. Xxxxxx (the
"Indemnitors"), and Accesstel, Inc., a Utah corporation (the "Indemnitee").
RECITALS
In connection with the acquisition of Global Invest Holdings, Inc.
("Global") by Indemnitee, on October 13, 2004 (the "Acquisition"), and to
induce the stockholders of Global to proceed with the Acquisition, the
Indemnitors have agreed to assume all liabilities shown on the balance sheet
of Indemnitee as at June 30, 2004 and detailed in Schedule I hereto (the
"Liabilities").
AGREEMENT
NOW, THEREFORE, do hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, against the Indemnitee, whether of a
civil, criminal or administrative or investigative nature, by reason of or
related to the Liabilities.
(b) The term "Expenses" includes, without limitation, attorneys'
fees, disbursements and retainers, accounting and witness fees, travel and
deposition costs, expenses of investigations, judicial or administrative
proceedings or appeals, amounts paid in settlement by or on behalf of the
Indemnitee, and any expenses of establishing a right to indemnification
pursuant to this Agreement or otherwise including reasonable compensation for
time spent by the Indemnitee in connection with the investigation, defense or
appeal of a Proceeding or action for indemnification for which it is not
otherwise compensated by the Indemnitors or any third party.
2. Agreement to Assume Liabilities; Stock Pledge. The Indemnitors
agree to assume the Liabilities for purposes inducing the stockholders of
Global to proceed with the Acquisition. The Indemnitors shall pledge with
Indemnitee Two Hundred Thousand (200,000) shares of common stock of
Indemnitee (the "Pledged Shares") to secure to Indemnitee payment by
Indemnitors of any amounts due from Indemnitors to Indemnitee hereunder. The
Pledged Shares shall be valued at Sixty (60%) Percent of the market price for
the common stock of Indemnitee at the time of any release from escrow to
Indemnitee to satisfy Liabilities. The Pledged Shares shall be released to
Indemnitors on the earlier of proof of settlement of all Liabilities or one
(1) year from the date of this Agreement.
3. Indemnification in Third Party Actions. The Indemnitors shall
indemnify the Indemnitee in accordance with the provisions of this section if
the Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding, against all expenses, judgments, fines, and
penalties actually and reasonably incurred by the Indemnitee in connection
with the defense or settlement of such Proceeding, to the fullest extent
permitted by Utah law; provided that any settlement be approved in writing by
the Indemnitors. The liability of the Indemnitors hereunder shall be joint
and several.
4. Indemnification Procedure.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the Indemnitee will, if a claim in respect
thereof is to be made against the Indemnitors under this Agreement, notify the
Indemnitors of the commencement thereof. The omission so to notify the
Indemnitors will not relieve it from any liability which it may have to the
Indemnitee otherwise than under this Agreement.
(b) If a claim under this Agreement is not paid by the Indemnitors
within thirty (30) days of receipt of written notice, the right to
indemnification as provided by this Agreement shall be enforceable by the
Indemnitee in any court of competent jurisdiction. Indemnitee shall not be
obligated to utilize or credit the value of any Pledged Shares prior to
enforcing any right to indemnification hereunder in court against Indemnitors.
The burden of proving by clear and convincing evidence that indemnification or
advances are not appropriate shall be on the Indemnitors.
(c) The Indemnitee's Expenses incurred in connection with any
Proceeding concerning its right to indemnification or advances in whole or in
part pursuant to this Agreement shall also be indemnified by the Indemnitors
regardless of the outcome of such Proceeding, unless a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such Proceeding was not made in good faith or was frivolous.
(d) With respect to any Proceeding for which indemnification is
requested, the Indemnitors shall assume the defense thereof, with counsel
reasonably satisfactory to the Indemnitee. After notice from the Indemnitors
to the Indemnitee of their assumption of the defense of a Proceeding, the
Indemnitors will not be liable to the Indemnitee under this Agreement for any
legal or other expenses subsequently incurred by the Indemnitee in connection
with the defense thereof, other than reasonable costs of investigation or as
otherwise provided below. The Indemnitors shall not settle any Proceeding in
any manner which would impose any penalty or limitation on the Indemnitee
without the Indemnitee's written consent. The Indemnitee shall have the right
to employ its own counsel in any Proceeding but the fees and expenses of such
counsel incurred after notice from the Indemnitors of its assumption of the
defense thereof shall be at the expense of the Indemnitee, unless (i) the
employment of counsel by the Indemnitee has been authorized by the
Indemnitors, (ii) the Indemnitee shall have reasonably concluded that there
may be a conflict of interest between the Indemnitors and the Indemnitee in
the conduct of the defense of a Proceeding (and such conclusion is concurred
in by independent counsel selected by the Indemnitors, the selection of whom
has been reasonably approved by Indemnitee); or (iii) the Indemnitors shall
not in fact have employed counsel to assume the defense of a Proceeding, in
each of which cases the fees and expenses of the Indemnitee's counsel shall be
at the expense of the Indemnitors.
5. Indemnification Hereunder Not Exclusive. The indemnification
provided by this Agreement shall not be deemed exclusive of any other rights
to which the Indemnitee may be entitled under any other agreement or
otherwise.
6. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Indemnitee and its successors and assigns,
and the Indemnitors and their respective successors and assigns, heirs and
personal representatives.
7. Separability. Each provision 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 or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof.
8. Interpretation; Governing Law. This Agreement shall be construed as a
whole and in accordance with its fair meaning. Headings are for convenience
only and shall not be used in interpreting the provisions hereunder. This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Utah.
9. Amendments. No amendment, waiver, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
the party against whom enforcement is sought.
10. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.
11. Notices. Any notice required to be given under this Agreement shall
be directed to Indemnitors at 0000 Xxxx 0xx Xxxxxx, Xxxxx 000, Xxxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxx, and to Indemnitee at 00 Xxxxxxx Xxxx,
Xxxxxxxxx, XX 00000, or to such other address as either shall designate in
writing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
DAG ENTERPRISE, INC. ACCESSTEL, INC.
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx Xxxxxx
By:________________ By:_________________
President President
Its:________________ Its:_________________
/s/ Xxxxxxx Xxxxxx
________________________
Xxxxxxx X. Xxxxxx
