INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT, made and entered into this ____ day of
________________, 2008 (“Agreement”), by and between Renewable Energy
Acquisition Corp., a Nevada corporation (the “Company”) and
___________________________ (“Indemnitee”).
WHEREAS,
competent persons are becoming more reluctant to serve corporations as directors
or in other capacities unless they are provided with adequate protection through
insurance or adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf
of
the corporation, and
WHEREAS,
the Board of Directors of the Company has determined that the inability to
attract and retain such persons is detrimental to the best interests of the
Company’s stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future; and
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the Company free
from undue concern that they will not be so indemnified; and
WHEREAS,
Indemnitee is willing to serve, continue to serve and to take on additional
service for or on behalf of the Company on the condition that Indemnitee be
so
indemnified;
NOW,
THEREFORE, in consideration of the promises, conditions, representations and
warranties set forth herein, including Indemnitee’s continued service to the
Company, the Company and Indemnitee hereby covenant and agree as follows:
ARTICLE
I
DEFINITIONS
For
purposes of this Agreement, the following terms shall have the meaning given
here:
1.01 “Board”
shall mean the Board of Directors of the Company.
1.02 “Corporate
Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit or other enterprise which
such person is or was serving at the express written request of the Company.
1.03 “Covered
Act” means any breach of duty, neglect, error, misstatement, misleading
statement, omission or other act done or wrongfully attempted by Indemnitee
or
against any of the foregoing alleged by any claimant or any claim against
Indemnitee by reason of being a director, officer or stockholder of the Company.
1.04 “D&O
Insurance” means the directors’ and officers’ liability insurance in favor of
the Company and as reflected by the policy or policies issued by the insurer(s),
and having the policy number(s), amount(s) and deductible(s) now existing or
hereafter acquired and included in the Company’s files or replacement or
substitute policies issued by one or more reputable insurers.
1.05 “Determination”
means a determination, based on the facts known at the time, made by:
(a) A
majority vote of a quorum of disinterested directors; or
(b) Independent
Counsel in a written opinion prepared at the request of a majority of a quorum
of Disinterested Directors; or
(c) A
majority of the disinterested stockholders of the Company; or
(d) A
final
adjudication by a court of competent jurisdiction.
“Determined”
shall have a correlative meaning.
1.06 “Disinterested
Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by Indemnitee.
1.07 “Effective
Date” means _________________, 2008.
1.08 “Excluded
Claim” means any payment for Losses or Expenses in connection with any claim:
(a) Based
upon or attributable to Indemnitee gaining in fact any personal profit or
advantage to which Indemnitee is not entitled; or
(b) For
the
return by Indemnitee of any remuneration paid to Indemnitee without the previous
approval of the stockholders of the Company which is illegal; or
(c) For
an
accounting of profits in fact made from the purchase or sale by Indemnitee
of
securities of the Company within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, or similar provisions of any state law; or
(d) Resulting
from Indemnitee’s knowingly fraudulent, dishonest or willful misconduct; or
(e) The
payment of which by the Company under this Agreement is not permitted by
applicable law.
1.09 “Expenses”
shall include all reasonable attorneys fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
all costs of e-discovery, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in
a
Proceeding, but shall not include Fines.
1.10 “Fines”
mean any fine, penalty or, with respect to an employee benefit plan, any excise
tax or penalty assessed with respect thereto.
1.11 “Good
Faith” shall mean Indemnitee having acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests
of
the Company and, with respect to any criminal Proceeding, having had no
reasonable cause to believe Indemnitee’s conduct was unlawful.
1.12 “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past three
years
has been, retained to represent (i) the Company or Indemnitee in any matter
material to either such party or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing
the
term “Independent Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.
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1.13 “Loss”
means any amount which Indemnitee is legally obligated to pay as a result of
a
claim or claims made against him or her for Covered Acts including, without
limitation, damages and judgments and sums paid in settlement of a claim or
claims, but shall not include Fines.
1.14 “Proceeding”
includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other actual threatened or
completed proceeding whether civil, criminal, administrative or investigative,
other than one initiated by Indemnitee. For purposes of the foregoing sentence,
a “Proceeding” shall not be deemed to have been initiated by Indemnitee where
Indemnitee seeks pursuant to Article IX of this Agreement to enforce
Indemnitee’s rights under this Agreement relating thereto.
ARTICLE
II
SERVICES
BY, AND CAPACITIES, OF INDEMNITEE
Indemnitee
has agreed to serve as a director or officer of the Company or may serve in
both
of such capacities. The positions under which Indemnitee will render services
to
the Company shall be all those which are reflected in the meeting minutes of
the
Company’s stockholders or directors or both, as the case may be, and will
include any and all services rendered in the capacity as a stockholder of the
Company. Indemnitee may at any time and for any reason resign from such
position(s), subject to any other contractual obligation or any obligation
imposed by operation of law.
ARTICLE
III
D&O
INSURANCE
3.01 Description
of D&O Insurance.
Following the closing of the Company’s initial public offering of its
securities, the Company shall use commercially reasonable efforts to establish
and maintain one or more policies of directors’ and officers’ liability
insurance. Indemnitee shall have the right to receive a copy or copies of all
such policies upon reasonable request at any time.
3.02 Named
Insured.
In any
policies of D&O Insurance which are maintained by the Company, Indemnitee
shall be named as an insured in such a manner as to provide Indemnitee the
same
rights and benefits, subject to the same limitations, as are accorded to the
Company’s directors and officers most favorably insured by such policy.
3.03 No
Obligation.
Nothing
herein shall impose upon the Company the obligation to maintain D&O
Insurance if the Company determines in good faith that such insurance is not
reasonably available, the premium costs for such insurance are disproportionate
to the amount of coverage provided, or the coverage provided by such insurance
is limited by exclusions so as to provide an insufficient benefit.
ARTICLE
IV
INDEMNIFICATION
4.01 Indemnification
in General.
The
Company shall indemnify and hold Indemnitee harmless for any Losses, Expenses,
judgments, penalties, Fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with
such Proceeding or any claim, issue or matter therein, if Indemnitee acted
in
Good Faith.
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4.02 Excluded
Coverage.
The
Company shall have no obligation to indemnify and hold Indemnitee harmless
from
any Losses or Expense which has been Determined to constitute an Excluded Claim.
Notwithstanding the provisions of Section 4.01, no such indemnification shall
be
made in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company if applicable
law prohibits such indemnification; provided, however, that, if applicable
law
so permits, indemnification shall nevertheless be made by the Company in such
event if and only to the extent that the court in which such Proceeding shall
have been brought or pending, shall Determine.
4.03 Indemnification
of a Party Who Is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, Indemnitee shall
be
indemnified to the maximum extent permitted by law, against all Losses,
Expenses, judgments, penalties, Fines and amounts paid in settlement, actually
and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee to the maximum extent permitted by law, against all Losses, Expenses,
judgments, penalties, Fines and amounts paid in settlement, actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with
each successfully resolved claim, issue or matter. For purposes of this Section
4.03 and without limitation, the termination of any claim, issue or matter
in
such a Proceeding by dismissal, with or without prejudice, shall be deemed
to be
a successful result as to such claim, issue or matter, so long as there has
been
no finding (either adjudicated or pursuant to Article VI) Indemnitee did not
act
in Good Faith.
4.04 Indemnification
For Expenses of a Witness.
Notwithstanding any other provision of this Agreement to the extent that
Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness in a
Proceeding, Indemnitee shall be indemnified against all Losses and Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith.
ARTICLE
V
ADVANCEMENT
OF EXPENSES
Notwithstanding
any provision to the contrary in Article VI, the Company shall advance all
reasonable Expenses which, by reason of Indemnitee’s Corporate Status, are
incurred by or on behalf of Indemnitee in connection with any Proceeding, within
twenty (20) days after the receipt by the Company of a statement or statements
from Indemnitee requesting such advance or advances, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall include or
be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to
repay
any Expenses if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses. Such statements may be
redacted to the extent necessary to preserve attorney-client confidentiality,
work product or other applicable privileges, if any. Any advance and
undertakings to repay pursuant to this Article V shall be unsecured and interest
free.
ARTICLE
VI
PROCEDURES
FOR DETERMINATION OF ENTITLEMENT
6.01 Initial
Notice.
Promptly after receipt by Indemnitee of notice of the commencement of or the
threat of commencement of any Proceeding, Indemnitee shall, if indemnification
with respect thereto may be sought from the Company under this Agreement, notify
the Company of the commencement thereof. Indemnitee shall include therein or
therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the Company shall
promptly advise the Board in writing that Indemnitee has requested
indemnification.
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6.02 D&O
Insurance.
If, at
the time of the receipt of such notice, the Company has D&O Insurance in
effect, the Company shall give prompt notice of the commencement of such
Proceeding to the insurers in accordance with the procedures set forth in the
respective policies in favor of Indemnitee. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, on behalf
of
Indemnitee, all Losses and Expenses payable as a result of such Proceeding
in
accordance with the terms of such policies.
6.03 Employment
of Counsel.
To the
extent the Company does not, at the time of the commencement of or the threat
of
commencement of a Proceeding, have applicable D&O Insurance, or if a
Determination is made that any Expenses arising out of such Proceeding will
not
be payable under the D&O Insurance then in effect, the Company shall be
obligated to pay the Expenses of any such Proceeding in advance of the final
disposition thereof as provided in Article V and the Company, if appropriate,
shall be entitled to assume the defense of such Proceeding, with counsel
satisfactory to Indemnitee, upon the delivery to Indemnitee of written notice
of
its election so to do. After delivery of such notice, the Company will not
be
liable to Indemnitee under this Agreement for any legal or other Expenses
subsequently incurred by Indemnitee in connection with such defense other than
reasonable Expenses of investigation provided that Indemnitee shall have the
right to employ its own counsel in any such Proceeding but the fees and expenses
of such counsel incurred after delivery of notice from the Company of its
assumption of such defense shall be at Indemnitee’s expense and provided further
that if (i) the employment of counsel by Indemnitee has been previously
authorized by the Company, (ii) Indemnitee and counsel shall have reasonably
concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense or (iii) the Company shall not,
in
fact, have employed counsel to assume the defense of such Proceeding, the fees
and expenses of counsel shall be at the expense of the Company.
6.04 Payment.
All
payments on account of the Company’s indemnification obligations under this
Agreement shall be made within sixty (60) days of Indemnitee’s written request
there for unless a Determination is made that the claims giving rise to
Indemnitee’s request are Excluded Claims or otherwise not payable under this
Agreement or applicable law.
6.05 Reimbursement
by Indemnitee.
Indemnitee agrees that he or she will reimburse the Company for all Losses
and
Expenses paid by the Company in connection with any Proceeding against
Indemnitee in the event and only to the extent that a Determination shall have
been made by a court in a final adjudication from which there is no further
right of appeal that Indemnitee is not entitled to be indemnified by the Company
for such Expenses because the claim is an Excluded Claim or because Indemnitee
is otherwise not entitled to payment under this Agreement.
6.06 Cooperation.
Indemnitee shall cooperate with the person, persons or entity making the
Determination with respect to Indemnitee’s entitlement to indemnification under
this Agreement, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such Determination. Any
costs or Expenses (including attorneys’ fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such
Determination shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification) and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
ARTICLE
VII
SETTLEMENT
The
Company shall have no obligation to indemnify Indemnitee under this Agreement
for any amounts paid in settlement of any Proceeding effected without the
Company’s prior written consent. The Company shall not settle any claim in any
manner which would impose any Fine or other obligation on Indemnitee without
Indemnitee’s written consent. Neither the Company nor Indemnitee shall
unreasonably withhold their consent to any proposed settlement.
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ARTICLE
VIII
RIGHTS
NOT EXCLUSIVE
The
rights provided hereunder shall not be deemed exclusive of any other rights
to
which Indemnitee may be entitled under any bylaw, agreement, vote of
stockholders or of Disinterested Directors or otherwise, both as to action
in
his official capacity and as to action in any other capacity by holding such
office, and shall continue after Indemnitee ceases to serve the Corporation
as a
director or officer.
ARTICLE
IX
ENFORCEMENT
9.01 Burden
of Proof.
Indemnitee’s right to indemnification shall been enforceable by Indemnitee in
any state court having jurisdiction of the matter and shall be enforceable
notwithstanding any adverse Determination. In any such action, if a prior
adverse Determination has been made, the burden of proving that indemnification
is required under this Agreement shall be on Indemnitee. The Company shall
have
the burden of proving that indemnification is not required under this Agreement
if no prior adverse Determination shall have been made.
9.02 Costs
And Expenses.
In the
event that any action is instituted by Indemnitee under this Agreement, or
to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable counsel
fees, incurred by Indemnitee with respect to such action, unless the court
determines that each of the material assertions made by Indemnitee as a basis
for such action were not made in Good Faith or were frivolous.
ARTICLE
X
GENERAL
PROVISIONS
10.01 Successors
And Assigns.
This
Agreement shall be binding upon the Company and its successors and assigns
and
shall inure to the benefit of Indemnitee and Indemnitee’s heirs, executors,
personal representatives and administrators.
10.02 No
Duplicate Indemnity or Recovery.
Notwithstanding any provisions to the contrary herein, this Agreement shall
not
be interpreted or construed in such a manner as to provide Indemnitee duplicate
indemnities or recoveries to the extent Indemnitee is entitled (x) under
applicable law, D&O policies or other contracts or agreements, to (y)
indemnity or reimbursement of Losses, Expenses, judgments, penalties, Fines
and
amounts paid in settlement actually and reasonably incurred by Indemnitee or
on
Indemnitee’s behalf in connection with a Proceeding or any claim, issue or
matter therein.
10.02 Severability.
If any
provision or provisions of this Agreement is determined by a court to be
invalid, illegal or unenforceable for any reason whatsoever, such provision
shall be limited or modified in its application to the minimum extent necessary
to avoid a violation of law, and, as so limited or modified, such provision
and
the balance of this Agreement shall be enforceable in accordance with its
terms.
10.03 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 one and the same Agreement. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced to evidence
the
existence of this Agreement.
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10.04 Headings.
The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
10.05 Modification
and Waiver.
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.
10.06 Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand
and
receipted for by the party to whom said notice or other communication shall
have
been directed, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed.
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If
to Indemnitee to:
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As
shown with Indemnitee’s signature below
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If
to the Company to:
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0000
Xxxx Xxxx Xxxx Xxxx, Xxxxx 000
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Xxxxxxxxxxx,
Xxxxxxxxx 00000
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Boulder
Specialty Brands, Inc.
0000
Xxxxxxx Xxxxx Xxxxx
Xxxxxxxx,
Xxxxxxxx 00000
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With
a copy to:
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Xxxxxx
X. Xxxxxx, Esq.
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or
to
such other address as may have been furnished to Indemnitee by the Company
or to
the Company by Indemnitee, as the case may be.
10.07 Governing
Law.
The
parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Nevada without application
of the conflict of laws principles thereof.
10.08 Consent
to Jurisdiction.
The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction
of
the courts of the States of Nevada and Minnesota for all purposes in connection
with any Proceeding which arises out of or relates to this Agreement, and agree
that any action instituted under this Agreement shall be brought only in the
state courts of the States of Nevada and Minnesota.
10.09 Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding between the parties
hereto in reference to all the matters herein agreed upon. This Agreement
replaces in full all prior indemnification agreements or understandings of
the
parties hereto, and any and all such prior agreements or understandings are
hereby rescinded by mutual agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and
year first above written.
By:
Name: ____________________________
Title:
INDEMNITEE:
_____________________________
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