EXHIBIT 3.2.1
FORM OF INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, dated as of ___________, is between the ("
Companies"), and the person listed on the signature page hereto ("Indemnity").
Recitals
A. "Indemnity" is a director or officer of the " Company " and in such capacity
is performing valuable services for the " Company ".
B e " Company " and "Indemnity" recognize the difficulty in obtaining directors'
and officers' liability insurance, the significant cost of such insurance and
the periodic reduction in the coverage of such insurance.
B. The " Company --" and "Indemnity" further recognize the substantial increase
in litigation subjecting directors and officers to expensive litigation risks at
the same time such liability insurance is being severely limited.
C. The " Company --" has adopted and its stockholders have approved bylaws (the"
Bylaws") providing for the indemnification of the " Company--" directors and
officers to the full extent permitted by Section ___ of the General Corporation
Law of Nevada (the "Statute").
E. The Bylaws and the Statute specifically provide that they are not exclusive,
and they thereby contemplate that contracts may be entered into between the
"Company --" and its directors and officers with respect to indemnification of
such directors and officers.
F. To induce "Indemnity" to serve or continue to serve the " Company __", the "
Company__ to confirm the contract indemnification rights provided in the Bylaws
and agrees to provide "Indemnity" with the benefits contemplated by this
Agreement.
Agreements
1. "Indemnity"
1.1. Scope
The " Company --" agrees to hold harmless and indemnify "Indemnity" to the full
extent permitted by law, notwithstanding that the basis for such indemnification
is not specifically enumerated in this Agreement, the " Company --" Restated
Certificate of Incorporation, the Bylaws, any other statute or otherwise. In the
event of any change, after the date of this Agreement, in any applicable law,
statute or rule regarding the right of a Delaware corporation to indemnify a
member of its Board of Directors or an officer, such change, to the extent it
would expand "Indemnity's" rights hereunder, shall be included within
"Indemnity's" rights and the " Company--" obligations hereunder, and, to
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the extent it would narrow "Indemnity's" rights or the " Company " obligations
hereunder, shall be excluded from this Agreement; provided, however, that any
change required by applicable laws, statutes or rules to be applied to this
Agreement shall be so applied regardless of whether the effect of such change is
to narrow "Indemnity's" rights or the " Company --" obligations hereunder.
1.2. Non exclusivity
The indemnification provided by this Agreement shall not be deemed exclusive of
any rights to which "Indemnity" may be entitled under the " Company " Restated
Certificate of Incorporation, the Bylaws, any agreement, any vote of
stockholders or disinterested directors, the Statute or otherwise, whether as to
action in "Indemnity's" official capacity or otherwise.
1.3. Included Coverage
If "Indemnity" was or is made a party, or is threatened to be made a party, to
or is otherwise involved (including, without limitation, as a witness) in any
Proceeding (as defined below), the " Company " shall hold harmless and indemnify
"Indemnity" from and against any and all losses, claims, damages, liabilities or
expenses, including, without limitation, attorneys' fees, Judgments, fines,
ERISA excise taxes or penalties, witness fees, amounts paid in settlement and
other expenses incurred in connection with such Proceeding, as well as any
federal, state or local taxes imposed on such "Indemnity" as a result of the
actual or deemed receipt of any payments under this Agreement, including all
interest, assessments and other charges paid or payable in connection with such
expenses (collectively, "Damages").
1.4. Definition of Proceeding
For purposes of this Agreement, "Proceeding" shall mean any completed, actual,
pending or threatened action, suit, claim or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of the " Company and whether formal or informal, in which "Indemnity" is,
was or becomes involved by reason of the fact that "Indemnity" is or was a
director, officer, employee, trustee or agent of the " Company " or that, being
or having been such a director, officer, employee, trustee or agent, "Indemnity"
is or was serving at the request of the " Company" as a director, officer,
employee, trustee or agent of another corporation or of a partnership, Joint
venture, trust or other enterprise (collectively, a "Related " Company""),
including service with respect to an employee benefit plan, whether the basis of
such proceeding is alleged action (or inaction) by "Indemnity" in an official
capacity as a director, officer, employee, trustee or agent or in any other
capacity while serving as a director, officer, employee, trustee or agent;
provided, however, that, except with respect to an action to enforce the
provisions of this Agreement, "Proceeding" shall not include any action, suit,
claim or proceeding instituted by or at the direction of "Indemnity", unless
such action, suit, claim or proceeding is or was authorized by the " Company's
Board of Directors.
1.5. Determination of Entitlement
In the event that a determination of "Indemnity's" entitlement to
indemnification is required pursuant
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to Section 145(d) of the Statute or a successor statute or pursuant to other
applicable law, the appropriate decision maker shall make such determination;
provided, however, that "Indemnity" shall initially be presumed in all cases to
be entitled to indemnification, that "Indemnity" may establish a conclusive
presumption of any fact necessary to such a determination by delivering to the "
Company" a declaration made under penalty of perjury that such fact is true and
that, unless the " Company" shall deliver to "Indemnity" a written notice that
"Indemnity" is not entitled to indemnification within 20 days after the "
Company " receipt of "Indemnity's" initial written request for indemnification,
such determination shall conclusively be deemed to have been made in favor of
the " Company" provision of indemnification, and that the " Companies not to
assert otherwise.
1.6. Contribution
If the indemnification provided under Section 1.1 is unavailable by reason of a
court decision, based on grounds other than any of those set forth in paragraphs
(b) through (d) of Section 4.1, then, in respect of any Proceeding in which the
" Company " is Jointly liable with "Indemnity" (or would be if joined in such
Proceeding), the " Company" shall contribute to the amount of Damages (including
attorneys' fees) actually and reasonably incurred and paid or payable by
"Indemnity" in such proportion as is appropriate to reflect (I) the relative
benefits received by the " Company" on the one hand and "Indemnity" on the other
from the transaction from which such Proceeding arose and (ii) the relative
fault of the " Company " on the one hand and have "Indemnity" on the other in
connection with the events that resulted in such Damages as well as any other
relevant equitable considerations. The relative fault of the " Company " on the
one hand and of "Indemnity" 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 Damages. The " Company" agrees that it would not be just and equitable if
contribution pursuant to this Section 1.6 were determined by pro rata allocation
or any other method of allocation that does not take account of the foregoing
equitable considerations.
In connection with the registration of the " Company" securities, the
relative benefits received by the " Company " and the "Indemnity" shall be
deemed to be in the same respective proportions that the net proceeds from the
offering (before deducting expenses) received by the " Company " and the
"Indemnity", in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
securities so offered. The relative fault of the " Company " and the "Indemnity"
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the " Company" or
the "Indemnity" and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The " Company " and the "Indemnity" agree that it would not be just and
equitable if contribution pursuant to this Section 1.6 were determined by pro
rata or per capita allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. In connection with the registration of the " Company, in no
event shall "Indemnity" be required to contribute any amount under this Section
1.6 in excess of the lesser of (i) that proportion of the total of such losses,
claims, damages or liabilities indemnified
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against equal to the proportion of the total securities sold under such
registration statement that is being sold by such "Indemnity" or (ii) the
proceeds received by such "Indemnity" from its sale of securities under such
registration statement. No person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent
misrepresentation.
1.7. Survival
The indemnification and contribution provided under this Agreement shall apply
to any and all Proceedings, notwithstanding that "Indemnity" has ceased to serve
the " Company " or a Related " Company", and shall continue so long as
"Indemnity" shall be subject to any possible Proceeding, whether civil, criminal
or investigative, by reason of the fact that "Indemnity" was a director or
officer of the " Company" or serving in any other capacity referred to in
Section 1.4 of this Agreement. The indemnification and contribution provided for
in this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the "Indemnity" or any director, officer,
controlling person, employee or agent of "Indemnity".
2. Expense Advances
2.1. Generally
The right to indemnification of Damages conferred by Section 1 shall include the
right to have the " Company" pay "Indemnity's" expenses in any Proceeding as
such expenses are incurred and in advance of such Proceeding's final disposition
(such right, an "Expense Advance").
2.2. Conditions to Expense Advance
The " Company" obligation to provide an Expense Advance is subject to the
following conditions:
2.2.1. Undertaking
If the Proceeding arose in connection with "Indemnity's" service as a director
or officer of the " Company" (and not in any other capacity in which "Indemnity"
rendered service, including service to any Related " Company, then "Indemnity"
or "Indemnity's" representative shall have executed and delivered to the "
Company" an undertaking, which need not be secured and shall be accepted without
reference to "Indemnity's" financial ability to make repayment, by or on behalf
of "Indemnity", to repay all Expense Advances if it shall ultimately be
determined by a final, unappealable decision rendered by a court having
Jurisdiction over the parties that "Indemnity" is not entitled to be indemnified
by the " Company".
2.2.2. Cooperation
"Indemnity" shall give the " Company" such information and cooperation as it may
reasonably request and as shall be within "Indemnity's" power.
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3. Procedures for Enforcement
3.1. Enforcement
In the event that any claim for indemnity, whether an Expense Advance or
otherwise, is made hereunder and is not paid in full within 60 days after
written notice of such claim is delivered to the " Company ", "Indemnity" may,
but need not, at any time thereafter bring suit against the " Company " to
recover the unpaid amount of the claim (an "Enforcement Action").
3.2. Presumptions in Enforcement Action
In any Enforcement Action, the following presumptions (and limitation on
presumptions) shall apply:
(a) The " Company" expressly affirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereunder to induce
"Indemnity" to continue as a director or officer of the " Company
(b) her (i) the failure of the " Company " (including the " Company" Board of
Directors, independent or special legal counsel or the " Company " stockholders)
to have made a determination prior to the commencement of the Enforcement Action
that indemnification of "Indemnity" is proper in the circumstances nor (ii) an
actual determination by the "Company", its Board of Directors, independent or
special legal counsel or stockholders that "Indemnity" is not entitled to
indemnification shall be a defense to the Enforcement Action or create a
presumption that "Indemnity" is not entitled to indemnification hereunder; and
(c) If "Indemnity" is or was serving as a director or officer of a corporation
of which a majority of the shares entitled to vote in the election of its
directors is held by the " Company" or in an "Indemnity" or management capacity
in a partnership, Joint venture, trust or other enterprise of which the "
Company " or a wholly owned subsidiary of the " Company " is a general partner
or has a majority ownership, then such corporation, partnership, Joint venture,
trust or other enterprise shall conclusively be deemed a Related " Company" and
"Indemnity" shall conclusively be deemed to be serving such Related " Company "
at the " Company " request.
3.3. Attorneys' Fees and Expenses for Enforcement Action
In the event "Indemnity" is required to bring an Enforcement Action, the "
Company ____shall pay all of "Indemnity's" fees and expenses in bringing and
pursuing the Enforcement Action (including attorneys' fees at any stage,
including on appeal); provided, however, that the " Company" shall not be
required to provide such payment for such attorneys' fees or expenses if a court
of competent Jurisdiction determines that each of the material assertions made
by "Indemnity" in such Enforcement Action was not made in good faith.
4. Limitations on Indemnity; Mutual Acknowledgment
4.1. Limitations on Indemnity
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The " Company " shall provide no indemnity pursuant to this Agreement:
(a) On account of any suit in which a final, unappealable Judgment is rendered
against "Indemnity" for an accounting of profits made from the purchase or sale
by "Indemnity" of securities of the " Company ___" in violation of the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended;
(b) For Damages that have been paid directly to "Indemnity" by an insurance
carrier under a policy of directors' and officers' liability insurance
maintained by the " Company ";
(c) With respect to remuneration paid to "Indemnity" if it shall be determined
by a final Judgment or other final adjudication that such remuneration was in
violation of law;
(d) On account of "Indemnity's" conduct which is finally adjudged to have been
intentional misconduct, a knowing violation of law, a violation of Section 174
of the Statute or a transaction from which "Indemnity" derived an improper
personal benefit; or
(e) If a final decision by a court having Jurisdiction in the matter shall
determine that such indemnification is not lawful.
4.2. SEC Undertaking
"Indemnity" understands and acknowledges that the " Company ____" may be
required in the future to undertake with the Securities and Exchange Commission
(the "SEC") to submit in certain circumstances the question of indemnification
to a court for a determination of the " Company _____" right under public policy
to indemnify "Indemnity".
5. Notifications and Defense of Claim
5.1. Notification
Promptly after receipt by "Indemnity" of notice of the commencement of any
Proceeding, "Indemnity" shall, if a claim in respect thereof is to be made
against the " Company" under this Agreement, notify the " Company " of the
commencement thereof; but the omission so to notify the " Company " will not,
however relieve the " Company " from any liability which it may have to
"Indemnity" under this Agreement unless and only to the extent that such
omission can be shown to have prejudiced the " Company " ability to defend the
Proceeding.
5.2. Defense of Claim
With respect to any such Proceeding as to which "Indemnity" notifies the "
Company of the commencement thereof:
(a) The " Company " may participate therein at its own expense;
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(b) The " Company ", Jointly with any other indemnifying party similarly
notified, may assume the defense thereof, and with counsel satisfactory to
"Indemnity". After notice from the " Company" to "Indemnity" of its election so
to assume the defense thereof, the " Company" shall not be liable to "Indemnity"
under this Agreement for any legal or other expenses (other than reasonable
costs of investigation) subsequently incurred by "Indemnity" in connection with
the defense thereof unless (i) the employment of counsel by "Indemnity" has been
authorized by the " Company ", (ii) "Indemnity" shall have reasonably concluded
that there may be a conflict of interest between the " Company" (or any other
person or persons included in the Joint defense) and "Indemnity" in the conduct
of the defense of such action, or (iii) the " Company" 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 shall be at the " Company " expense. The "
Company " shall not be entitled to assume the defense of any Proceeding brought
by or on behalf of the " Company as to which "Indemnity" shall have reasonably
made the conclusion provided for in (ii) above;
(c) The " Company " shall not be liable to "Indemnity" under this Agreement for
any amounts paid in settlement of any Proceeding affected without its written
consent;
(d) The " Company" shall not settle any action or claim in any manner that would
impose any penalty or limitation on "Indemnity" without "Indemnity's" written
consent; and
(e) Neither the " Company" nor "Indemnity" shall unreasonably withhold its
consent to any proposed settlement, provided that "Indemnity" may withhold
consent to any settlement that does not provide a complete release of
"Indemnity".
6. Severability
Nothing in this Agreement is intended to require or shall be construed as
requiring the " Company " to do or to fail to do any act in violation of
applicable law. The " Company" inability, pursuant to court order, to perform
its obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable, as provided in
this Section 6, and if this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent Jurisdiction, the " Company" shall
nevertheless indemnify or make contribution to "Indemnity" to the full extent
permitted by any applicable portion of this Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.
7. Governing Law; Binding Effect; Amendment and Termination
(a) This Agreement shall be interpreted and enforced in accordance with the laws
of Delaware.
(b) This Agreement shall be binding on "Indemnity" and on the " Company " and
its successors and assigns (including any transferee of all or substantially all
of its assets and any successor by merger or otherwise by operation of law), and
shall inure to the benefit of "Indemnity" and "Indemnity's" heirs, personal
representatives and assigns and to the benefit of the " Company" and its
successors and assigns. The " Company" shall not affect any sale of
substantially all of its assets, merger,
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consolidation or other reorganization in which it is not the surviving entity,
unless the surviving entity agrees in writing to assume all such obligations of
the " Company " under this Agreement.
(c) No amendment, modification, termination or cancellation of this Agreement
shall be effective unless in writing signed by both parties hereto.
8. Notices
All notices, claims and other communications hereunder shall be in writing
and made by hand delivery, registered or certified mail (postage prepaid, return
receipt requested), facsimile or overnight air courier guaranteeing next day
delivery:
(a) If to the " Company ____", to: ___
(b) If to "Indemnity", to the address specified on the last page of this
Agreement or to such other address as either party may from time to time furnish
to the other party by a notice given
(c) in accordance with the provisions of this Section 8. All such notices,
claims and communications shall be deemed to have been duly given if (i)
personally delivered, at the time delivered, (ii) mailed, five days after
dispatched, (iii) sent by facsimile transmission, upon confirmation of receipt,
and (iv) sent by any other means, upon receipt.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
VOYAGER GROUP INC
a Delaware Corporation
By: Michael Johnson
Title:_/S/ Marlen Johnson
"INDEMNITEE":
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