Indoor Harvest, Corp. 8-K 


 


Exhibit 10.2


 





INDEMNITY
AGREEMENT


 


This
Indemnity Agreement, effective as of January 15, 2018, is made by and between Indoor Harvest Corp, a Texas corporation with
executive offices located at 5300 East Freeway, Suite A, Houston, Texas, 77020 (the “Company”), and Sandra Fowler
and Chief Marketing Officer of the Company (the “Indemnitee”).


 


RECITALS


 


A.
The Company is aware that competent and experienced persons are increasingly reluctant to serve as directors or officers of cannabis
related corporations unless they are protected by comprehensive liability insurance or indemnification, due to increased exposure
to litigation costs and risks resulting from their service to such cannabis related corporations, and due to the fact that the
exposure frequently bears no reasonable relationship to the compensation of such directors and officers;


 


B.
The statutes and judicial decisions regarding the duties of directors and officers are often difficult to apply, ambiguous, or
conflicting, and therefore fail to provide such directors and officers with adequate, reliable knowledge of legal risks to which
they are exposed or information regarding the proper course of action to take;


 


C.
Plaintiffs often seek damages in such large amounts and the costs of litigation may be so substantial (whether or not the case
is meritorious), that the defense and/or settlement of such litigation is often beyond the personal resources of officers and
directors;


 


D.
The Company believes that it is unfair for its directors and officers and the directors and officers of its subsidiaries to assume
the risk of large judgments and other expense that may be incurred in cases in which the director or officer received no personal
profit and in cases where the director or officer was not culpable;


 


E.
The Company recognizes that the issues in controversy in litigation against a director or officer of a corporation such as the
Company or a subsidiary of the Company are often related to the knowledge, motives and intent of such director or officer, that
he or she is usually the only witness with knowledge of the essential facts and exculpating circumstances regarding such matters
and that the long period of time which usually elapses before the trial or other disposition of which litigation often extends
beyond the time that the director or officer can reasonably recall such matters; and may extend beyond the normal time for retirement
or in the event of his or her death, his or her spouse, heirs, executors or administrators, may be faced with limited ability
and undue hardship in maintaining an adequate defense, which may discourage such a director or officer from serving in that position;


 


F.
Based upon their experience as business managers, the Board of Directors of the Company (the “Board”) has concluded
that, to retain and attract talented and experienced individuals to serve as officers and directors of the Company and its subsidiaries
and to encourage such individuals to take the business risks necessary for the success of the Company and its subsidiaries, it
is necessary for the Company to contractually indemnify its officers and directors and the officers and directors of its subsidiaries,
and to assume for itself maximum liability for expenses and damages in connection with claims against such officers and directors
in connection with their service to the Company and its subsidiaries, and has further concluded that the failure to provide such
contractual indemnification could result in great harm to the Company and its subsidiaries and the Company’s stockholders;


 


G.
Section 8.101 of the Business Organizations Code of Texas, under which the Company is organized (“Section 8 of BOC”),
empowers the Company to indemnify by agreement its officers, directors, employees and agents, and persons who serve, at the request
of the Company, as directors, officers, employees or agents of other corporations or enterprises, and expressly provides that
the indemnification provided by Section 8 of BOC is not exclusive;


 


H.
The Company, after reasonable investigation prior to the date hereof, has determined that the liability insurance coverage
available to the Company and its subsidiaries as of the date hereof is inadequate and/or unreasonably expensive. The Company
believes, therefore, that the interest of the Company’s stockholders would best be served by a combination of such
insurance as the Company may obtain, or request a subsidiary to obtain, pursuant to the Company’s obligations
hereunder, and the indemnification by the Company of the directors and officers of the Company and its
subsidiaries;


 






     


     


    

 


I.
The Company desires and has requested the Indemnitee to serve or continue to serve as a director or officer of the Company and/or
the subsidiaries of the Company free from undue concern for claims for damages arising out of or related to such services to the
Company and/or a subsidiary of the Company; and


 


J.
The Indemnitee is willing to serve, or to continue to serve, the Company and/or the subsidiaries of the Company, provided that
he or she is furnished the indemnity provided for herein.


 


AGREEMENT


 


NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:


 


1. Definitions.


 


(a) Agent.
For the purposes of this Agreement, “agent” of the Company means any person who is or was a director, officer, employee
or other agent of the Company or a subsidiary of the Company; or is or was serving at the request of, for the convenience of or
to represent the interest of the Company or a subsidiary of the Company as a director, officer, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust or other enterprise; or was a director, officer, employee or agent
of a foreign or domestic corporation which was a predecessor corporation of the Company or a subsidiary of the Company, or was
a director, officer, employee or agent of another enterprise at the request of, for the convenience of or to represent the interests
of such predecessor corporation.


 


(b) Expenses. For
purposes of this Agreement, “expenses” includes all direct and indirect costs of any type or nature whatsoever (including,
without limitation, all attorneys’ fees and related disbursements, and other out-of-pocket costs) actually and reasonably
incurred by the Indemnitee in connection with either the investigation, defense or appeal of a proceeding or establishing or enforcing
a right to indemnification under this Agreement.


 


(c) Proceeding. For
the purposes of this Agreement, “proceeding” means any threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, investigative or any other type whatsoever, by reason of the fact that the Indemnitee
is or was an agent of the Company, or any of the Company’s Subsidiaries or affiliates, or by reason of anything done or
not done by him or her in any such capacity..


 


(d) Subsidiary. For
purposes of this Agreement, “subsidiary” means any corporation of which more than 50% of the outstanding voting securities
is owned directly or indirectly by the Company, by the Company and one or more other subsidiaries, or by one or more other subsidiaries.


 


2. Agreement
to Serve. The Indemnitee agrees to serve and/or continue to serve as an agent of the Company, at its will (or under separate
agreement, if such agreement exists), in the capacity the Indemnitee currently serves as an agent of the Company, so long as he
or she is duly appointed or elected and qualified in accordance with the applicable provisions of the Bylaws of the Company or
any subsidiary of the Company or until such time as he or she tenders his resignation in writing or he or she is removed from
such position, provided, however, that nothing contained in this Agreement is intended to create any right to continued employment
by the Indemnitee.


 


3. Maintenance
of Liability Insurance.


 


(a)
The Company hereby covenants and agrees that, so long as the Indemnitee shall continue to serve as an agent of the Company
and thereafter so long as the Indemnitee shall be subject to any possible proceeding by reason of the fact that the
Indemnitee was an agent of the Company, the Company, subject to Section 3(b), shall use reasonable efforts to obtain and
maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”)
in reasonable amounts from established and reputable insurers.


 






     


     


    

 


(b)
Notwithstanding the foregoing, the Company shall have no obligation to obtain or 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, the coverage is reduced by exclusions so as to provide an insufficient benefit, or the Indemnitee
is covered by similar insurance maintained by a subsidiary of the Company. If the Company decides in good faith that D&O insurance
is not required, the Company is required to notify the Indemnity in writing and in advance of any decision to cancel D&O Insurance


 


4. Mandatory
Indemnification. The Company shall indemnify the Indemnitee from:


 


(a) Third
Party Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any proceeding (other
than an action by or in the right of the Company) by reason of the fact that he or she is or was an agent of the Company, or by
reason of anything done or not done by him or her in any such capacity, against any and all expenses and liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement)
actually and reasonably incurred by him or her in connection with the investigation, defense, settlement or appeal of such proceeding
if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful; and


 


(b) Derivative
Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any proceeding by
or in the right of the Company to procure a judgment in its favor by reason of the fact that he or she is or was an agent of the
Company, or by reason of anything done or not done by him or her in any such capacity, against any amounts paid in settlement
of any such proceeding and all expenses actually and reasonably incurred by him or her in connection with the investigation, defense,
settlement, or appeal of such proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Company; except that no indemnification under this subsection shall be made in
respect of any claim, issue or matter as to which such person shall have been finally adjudged to be liable to the Company after
the time for an appeal has expired by a court of competent jurisdiction due to willful misconduct of a culpable nature in the
performance of his or her duty to the Company unless and only to the extent that the court in which such proceeding was brought
shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such amounts which the court shall deem proper; and


 


(c) Actions
Where Indemnitee is Deceased. If the Indemnitee is a person who was or is a party or is threatened to be made a
party to any proceeding by reason of the fact that he or she is or was an agent of the Company, or by reason of anything done
or not done by him or her in any such capacity, against any and all expenses and liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) actually
and reasonably incurred by him or her in connection with the investigation, defense, settlement or appeal of such proceeding
if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the Company, and prior to, during the pendency or after completion of such proceeding the Indemnitee is deceased, except
that in a proceeding by or in the right of the Company no indemnification shall be due under the provisions of this
subsection in respect of any claim, issue or matter as to which such person shall have been finally adjudged to be liable to
the Company after the time for an appeal has expired, by a court of competent jurisdiction due to willful misconduct of a
culpable nature in the performance of his or her duty to the Company, unless and only to the extent that the court in which
such proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such amounts which the court
shall deem proper; and


 






     


     


    

 


(d) Exception
for Amounts Covered by Insurance. Notwithstanding the foregoing, the Company shall not be obligated to indemnify the
Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fees, ERISA excise taxes
or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee under D&O Insurance.


 


5. Partial
Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company
for some or a portion of any expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines,
ERISA excise taxes or penalties, and amounts paid in settlement) incurred by him or her in the investigation, defense, settlement
or appeal of a proceeding but not entitled, however, to indemnification for all of the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for such total amount except as to the portion thereof to which the Indemnitee is not entitled.


 


6. Mandatory
Advancement of Expenses. Subject to Section 10 below, the Company shall advance all expenses incurred by the Indemnitee
in connection with the investigation, defense, settlement or appeal of any proceeding to which the Indemnitee is a party or is
threatened to be made a party by reason of the fact that the Indemnitee is or was an agent of the Company or by reason of anything
done or not done by him or her in any such capacity. Indemnitee hereby undertakes to repay such amounts advanced only if, and
to the extent that, it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid by the Company to the Indemnitee within twenty (20) days
following delivery of a written request therefor by the Indemnitee to the Company.


 


7. Notice
and Other Indemnification Procedures.


 


(a)
Promptly after receipt by the Indemnitee of notice of the commencement of or the threat of commencement of any proceeding, the
Indemnitee shall, if the Indemnitee believes that indemnification with respect thereto may be sought from the Company under this
Agreement, notify the Company of the commencement or threat of commencement thereof.


 


(b)
If, at the time of the receipt of a notice of the commencement of a proceeding pursuant to Section 7(a) hereof, 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. The Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.


 


8. Determination
of Right to Indemnification.


 


(a)
To the extent the Indemnitee has been successful on the merits or otherwise in defense of any proceeding referred to in Section 4(a),
4(b) or 4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify
the Indemnitee against expenses actually and reasonably incurred by him or her in connection therewith.


 


(b)
In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent
that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that the Indemnitee
has not met the applicable standard of conduct required to entitle the Indemnitee to such indemnification.


 


(c)
The Indemnitee shall be entitled to select the forum in which the validity of the Company’s claim under Section 8(b)
hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:


 






     


     


    

 


(1)
A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;


 


(2)
The stockholders of the Company;


 


(3)
Legal counsel selected by the Indemnitee and reasonably approved by the Board, which counsel shall make such determination in
a written opinion;


 


(4)
A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by the Indemnitee and the last
of whom is selected by the first two arbitrators so selected.


 


(d)
As soon as practicable, and in no event later than 30 days after written notice of the Indemnitee’s choice of forum pursuant
to Section 8(c) above, the Company shall, at its own expense, submit to the selected forum in such manner as the Indemnitee
or the Indemnitee’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification; and
the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.


 


(e)
Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification
with respect to a specific proceeding, the Indemnitee shall have the right to apply to a Texas District Court, the court in which
that proceeding is or was pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee’s
right to indemnification pursuant to the Agreement.


 


(f)
The Company shall indemnify the Indemnitee against all expenses incurred by the Indemnitee in connection with any hearing or proceeding
under this Section 8 involving the Indemnitee and against all expenses incurred by the Indemnitee in connection with any
other proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee
under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee
in any such proceeding was frivolous or not made in good faith.


 


9. Limitation
of Actions and Release of Claims. No proceeding shall be brought and no cause of action shall be asserted by or on behalf
of the Company or any subsidiary against the Indemnitee, his


 


or
her spouse, heirs, estate, executors or administrators after the expiration of one year from the act or omission of the Indemnitee
upon which such proceeding is based; however, in a case where the Indemnitee fraudulently conceals the facts underlying such cause
of action, no proceeding shall be brought and no cause of action shall be asserted after the expiration of one year from the earlier
of (i) the date the Company or any subsidiary of the Company discovers such facts, or (ii) the date the Company or any
subsidiary of the Company could have discovered such facts by the exercise of reasonable diligence. Any claim or cause of action
of the Company or any subsidiary of the Company, including claims predicated upon the negligent act or omission of the Indemnitee,
shall be extinguished and deemed released unless asserted by filing of a legal action within such period. This Section 9
shall not apply to any cause of action which has accrued on the date hereof and of which the Indemnitee is aware on the date hereof,
but as to which the Company has no actual knowledge apart from the Indemnitee’s knowledge.


 


10. Exceptions. Any
other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:


 


(a) Claims
Initiated by Indemnitee. To indemnify or advance expenses to the Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by the Indemnitee and not by way of defense, except with respect to proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under Section 8,
but such indemnification or advancement of expenses may be provided by the Company in specific cases if the Board of Directors
finds it to be appropriate; or


 






     


     


    

 


(b) Lack
of Good Faith. To indemnify the Indemnitee for any expenses incurred by the Indemnitee with respect to any proceeding
instituted by the Indemnitee to enforce or interpret this Agreement, if 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; or


 


(c) Unauthorized
Settlements. To indemnify the Indemnitee under this Agreement for any amounts paid in settlement of a proceeding unless
the Company consents to such settlement; or


 


(d) Claims
by the Company for Willful Misconduct. To indemnify or advance expenses to the Indemnitee under this Agreement for any
expenses incurred by the Indemnitee with respect to any proceeding or claim brought by the Company against the Indemnitee for
willful misconduct, unless a court of competent jurisdiction determines that each of such claims was not made in good faith or
was frivolous; or


 


(e) Section 16(b).
To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities
in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute; or


 


(f) Willful
Misconduct. To indemnify the Indemnitee on account of the Indemnitee’s conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct; or


 


(g) Unlawful
Indemnification. To indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful; or


 


(h) Forfeiture
of Certain Bonuses and Profits. To indemnify Indemnitee for the payment of amounts required to be reimbursed to the Company
pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, as amended, or any similar successor statute.


 


11. Nonexclusivity. The
provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have


 


under
any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote of the Company’s stockholders
or disinterested directors, other agreements, or otherwise, both as to actions in his or her official capacity and to actions
in another capacity while occupying his or her position as an agent of the Company, and the Indemnitee’s rights hereunder
shall continue after the Indemnitee has ceased acting as an agent of the Company and shall inure to the benefit of the heirs,
executors and administrators of the Indemnitee.


 


12. Interpretation
of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to the Indemnitee to the fullest extent now or hereafter permitted by law.


 


13. Severability. If
any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
(i) the validity, legality and enforceability of the remaining provisions of the Agreement (including, without limitation,
all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable
and to give effect to Section 12 hereof.


 






     


     


    

 


14. 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 provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.


 


15. Successors
and Assigns. The terms of this Agreement shall bind, and shall inure to the benefit of, the successors, heirs, executors,
and administrators and assigns of the parties hereto.


 


16. Notice. All
notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee or (ii) if mailed by certified or registered mail with postage
prepaid, on the third business day after the mailing date. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written notice.


 


17. Governing
Law. This Agreement shall be governed exclusively by and construed according to the laws of the State of Texas, as applied
to contracts between Texas residents entered into and to be performed entirely within Texas.


 


18. Consent
to Jurisdiction. The Company and the Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of
the State of Texas for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement.


 


The
parties hereto have entered into this Indemnity Agreement effective as of the date first above written.





	 	 	 	 
	 	INDOOR HARVEST CORP
	 	 
	 	/s/ Rick Gutshall
	 	 
	 	By:	Rick Gutshall
	 	 	 
	 	Its:	Interim CEO, Director
	 	 
	 	INDEMNITEE
	 	 
	 	/s/ Sandra Fowler
	 	 
	 	By: Sandra Fowler