EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this 11th day of December, 1997, by and between
INNOTRAC CORPORATION, a Georgia corporation (the "CORPORATION"), and
_____________________ (the "INDEMNIFIED PARTY").
W I T N E S S E T H:
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WHEREAS, the Indemnified Party currently serves as a director, officer, or
both of the Corporation, and in such capacity is performing a valuable service;
and
WHEREAS, pursuant to the Corporation's Articles of Incorporation and
Bylaws, each as amended to date (collectively the "CHARTER"), the Corporation
may indemnify its directors and officers to the fullest extent authorized by
applicable law; and
WHEREAS, Section 14-2-851 of the Georgia Business Corporation Code, as
amended to date (the "STATE STATUTE"), provides the statutory basis for the
indemnification of directors and officers of a Georgia corporation; and
WHEREAS, in order to induce the Indemnified Party to continue to serve, the
Corporation has determined and agreed to enter into this Agreement with the
Indemnified Party;
NOW, THEREFORE, in consideration of Indemnified Party's continued service
on behalf of the Corporation after the date hereof, the parties hereto agree as
follows:
1. INDEMNITY. The Corporation hereby agrees to hold harmless and
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indemnify the Indemnified Party to the fullest extent authorized or permitted by
the provisions of the State Statute with respect to the indemnification of
directors and officers, or by any amendment thereof or other statutory provision
authorizing or permitting such indemnification that is adopted after the date
hereof.
2. ADDITIONAL INDEMNITY. Subject only to the exclusions set forth in
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SECTION 3 hereof, the Corporation hereby further agrees to hold harmless and
indemnify Indemnified Party against any and all expenses (including reasonable
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by Indemnified Party in connection with any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (including an action by or in the right of the
Corporation) to which Indemnified Party is, was or at any time becomes a party,
or is threatened to be made a party, by reason of the fact that Indemnified
Party is, was or at any time becomes a director, officer, employee, or agent of
the Corporation, or is or was serving or at any time serves at the request of
the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
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SECTIONS 1 or 2 hereof shall be paid by the Corporation:
(a) In respect of expenses, judgments, fines, and settlement amounts
to the extent attributable to remuneration paid or other financial benefit
provided to the Indemnified Party by the Corporation if it shall be determined
by a final judgment or other final adjudication that such remuneration or
financial benefit was paid or provided in violation of the Indemnified Party's
duties and obligations to the Corporation;
(b) On account of any suit in which judgment is rendered against
Indemnified Party for an accounting of profits, made from the purchase or sale
by the Indemnified Party of securities of the Corporation, pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended,
or similar provisions of any federal or state law, or on account of any payment
by the Indemnified Party to the Corporation in respect of any claim for such
accounting;
(c) On account of the Indemnified Party's conduct if it shall be
determined by a final judgment or other final adjudication to have been
knowingly fraudulent, deliberately dishonest, or grossly negligent, or to have
constituted willful misconduct; or
(d) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
4. CONTRIBUTION. (a) If the indemnification provided in SECTIONS 1 OR 2
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is unavailable and may not be paid to the Indemnified Party for any reason
(other than pursuant to SECTIONS 3(A), (B), (C) AND (D)), then in respect of any
threatened, pending, or completed action, suit, or proceeding in which the
Corporation is jointly liable with the Indemnified Party (or would be if joined
in such action, suit, or proceeding), the Corporation shall contribute to the
amount of expenses, judgments, fines, penalties, and settlements paid or payable
by the Indemnified Party in such proportion as is appropriate to reflect (i) the
relative benefits received by the Corporation on the one hand and the
Indemnified Party on the other from the transaction from which such action,
suit, or proceeding arose, and (ii) the relative fault of the Corporation on the
one hand and of the Indemnified Party on the other in connection with the events
that resulted in such expenses, judgments, fines, penalties, or settlement
amounts, as well as any other relevant equitable considerations. The relative
fault of the Corporation on the one hand and of the Indemnified Party on the
other shall be determined by reference to, among other things, the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent the circumstances resulting in such expenses, judgments, fines,
penalties, or settlement amounts. The Corporation agrees that it would not be
just and equitable if contribution pursuant to this SECTION 4 were determined by
pro rata allocation or any other method of allocation that does not take account
of the foregoing equitable considerations.
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(b) The determination as to the amount of the contribution, if any,
shall be made by: (i) a court of competent jurisdiction upon the application
of both the Indemnified Party and the Corporation (if an action or suit had been
brought in, and final determination had been rendered by, such court); (ii) the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit, or proceeding; or (iii) regular outside
counsel of the Corporation, if a quorum is not obtainable for purposes of clause
(ii) above, or, even if obtainable, a quorum of disinterested directors so
directs.
5. CONTINUATION OF OBLIGATIONS. All agreements and obligations of the
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Corporation contained herein shall continue during the period the Indemnified
Party is a director, officer, employee, or agent of the Corporation (or is
serving at the request of the Corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise), and shall continue thereafter for so long as
the Indemnified Party shall be subject to any possible claim or threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that the Indemnified
Party was serving in any such capacity on behalf of the Corporation.
6. ADVANCEMENT OF EXPENSES. Expenses (including attorneys' fees),
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judgments, fines, penalties, and amounts paid in settlement actually and
reasonably incurred by the Indemnified Party with respect to any action, suit,
or proceeding referred to in SECTIONS 1 or 2 shall be advanced by the
Corporation prior to the time of the disposition of such action, suit, or
proceeding promptly upon the receipt of a (a) written affirmation from the
Indemnified Party of his good faith belief that he is entitled to be indemnified
by the Corporation for such expenses, judgments, fines, penalties, or amounts
paid in settlement under the provisions of the State Statute, the Charter, this
Agreement, or otherwise, and (b) written undertaking to return promptly any
amounts advanced hereunder if it shall ultimately be determined that the
Indemnified Party is not entitled to indemnification from the Corporation for
such amounts under the provisions of the State Statute, the Charter, this
Agreement, or otherwise.
7. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
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Indemnified Party of notice of the commencement of any action, suit, or
proceeding, the Indemnified Party will, if a claim in respect thereof is to be
made against the Corporation under this Agreement, notify the Corporation of the
commencement thereof, but the failure to notify the Corporation will not relieve
it from any liability that it may have to the Indemnified Party otherwise than
under this Agreement. With respect to any such action, suit, or proceeding as
to which the Indemnified Party so notifies the Corporation:
(a) The Corporation will be entitled to participate at its own
expense;
(b) Except as otherwise provided below, the Corporation may assume the
defense thereof, with counsel reasonably satisfactory to the Indemnified Party.
After notice from the Corporation to the Indemnified Party of its election to
assume such defense, the Corporation will not be liable to the Indemnified Party
under this Agreement for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof, other than
reasonable costs of investigation or as otherwise provided below. The
Indemnified Party shall have
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the right to employ its own 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 the Indemnified
Party, unless (i) the employment of counsel by the Indemnified Party has been
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authorized by the Corporation, (ii) counsel to the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Corporation and the Indemnified Party in the conduct of the defense of such
action and has advised the Indemnified Party in writing that such a conflict of
interest exists, 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. 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 the Indemnified Party shall have made the conclusion provided for in
clause (ii) above; and
(c) The Corporation shall have no obligation to indemnify the
Indemnified Party under this Agreement for any amounts paid in settlement of any
action or claim effected without the Corporation's prior written consent. The
Corporation shall not settle any action or claim in any manner that would impose
any penalty or limitation on the Indemnified Party without the Indemnified
Party's prior written consent. Neither the Corporation nor the Indemnified
Party will unreasonably withhold their consent to any proposed settlement.
8. REPAYMENT OF EXPENSES. The Indemnified Party agrees to reimburse the
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Corporation for all reasonable expenses, judgments, fines, penalties, and
settlement amounts paid by the Corporation in defending any civil, criminal,
administrative, or investigative action, suit, or proceeding against the
Indemnified Party or advanced by the Corporation to the Indemnified Party in
such event, but only to the extent that it shall be ultimately determined that
the Indemnified Party is not entitled to be indemnified by the Corporation for
such expenses, judgments, fines, penalties, or amounts paid in settlement under
the provisions of the State Statute, the Charter, this Agreement, or otherwise.
9. ENFORCEMENT. (a) The Corporation expressly confirms and agrees that
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it has entered into this Agreement and assumed the obligations imposed on it
hereby in order to induce the Indemnified Party to continue to serve on behalf
of the Corporation, and acknowledges that the Indemnified Party is relying upon
this Agreement in continuing to serve in such capacity.
(b) If the Indemnified Party is required to bring any action to
enforce rights or to collect moneys due under this Agreement and is successful
in such action, then the Corporation shall reimburse the Indemnified Party for
all of the Indemnified Party's reasonable fees and expenses in bringing and
pursuing such action.
10. SEVERABILITY. Each of the provisions of this Agreement is a separate
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and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable in whole or in part for any
reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
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11. GENERAL AND MISCELLANEOUS. (a) This Agreement shall be governed by
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and construed and enforced in accordance with the laws of the State of Georgia,
without regard to its conflicts of laws rules.
(b) This Agreement shall be binding upon the Indemnified Party, his
heirs, personal representative, and assigns and upon the Corporation and its
successors and assigns, and shall inure to the benefit of and be enforceable by
the Indemnified Party, his heirs, personal representatives, and assigns, and by
the Corporation and its successors and assigns.
(c) No amendment, modification, termination, or cancellation of this
Agreement shall be effective unless in a writing signed by both parties hereto.
12. NO DUPLICATION OF PAYMENTS. The Corporation shall not be liable under
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this Agreement to make any payment to the extent the Indemnified Party has
otherwise actually received payment (under any insurance policy, Charter
provision, or otherwise) of the amounts otherwise indemnifiable hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
CORPORATION:
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INNOTRAC CORPORATION
By:
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Name:
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Title:
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INDEMNIFIED PARTY:
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