exv10w38



 






EXHIBIT 10.38




INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (the “Agreement”) is made as of February 23, 2004, by
and between GlobalSecure Holdings Ltd., a Delaware corporation (the “Company”), and C.
Thomas McMillen (the “Indemnitee”).



RECITALS




     The Company and Indemnitee recognize the increasing difficulty in obtaining liability
insurance for directors, officers and key employees, the significant increases in the cost of such
insurance and the general reductions in the coverage of such insurance. The Company and Indemnitee
further recognize the substantial increase in corporate litigation in general, subjecting
directors, officers and key employees to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited. Indemnitee does not
regard the current protection available as adequate under the present circumstances, and Indemnitee
and agents of the Company may not be willing to continue to serve as agents of the Company without
additional protection. The Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, and to indemnify its directors, officers and key employees so as
to provide them with the maximum protection permitted by law.



AGREEMENT




     In consideration of the mutual promises made in this Agreement, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Company and Indemnitee hereby
agree as follows:



     1. Indemnification.



          (a) Third Party Proceedings. The Company shall indemnify Indemnitee if Indemnitee is
or was a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Company) by reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the Company, or any subsidiary of the Company, by reason of any
action or inaction on the part of Indemnitee while an officer, director, employee or agent or by
reason of the fact that Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement (if such settlement is approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by Indemnitee in connection with such
action, suit or proceeding if Indemnitee 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 [missing text]
conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company, or, with respect
to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful.




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          (b) Proceedings By or in the Right of the Company. The Company shall indemnify
Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any threatened,
pending or completed action or proceeding by or in the right of the Company or any subsidiary of
the Company to procure a judgment in its favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any subsidiary of the Company, by reason of
any action or inaction on the part of Indemnitee while an officer, director, employee oragent or by
reason of the fact that Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees) and, to the fullest extent permitted by
law, amounts paid in settlement (if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld), in each case to the extent actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such action or suit if
Indemnitee 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 its stockholders, except that no indemnification
shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudicated by court order or judgment to be liable to the Company in the performance of
Indemnitee’s duty to the Company and its stockholders unless and only to the extent that the court
in which such action or proceeding is or was pending shall determine upon application that, in view
of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for
such expenses which such court shall deem proper.




          (c) Mandatory Payment of Expenses. To the extent that Indemnitee has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 1(a)
or Section 1(b) or the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by
Indemnitee in connection therewith.




     2. No Employment Rights. Nothing contained in this Agreement is intended to create in
Indemnitee any right to continued employment.



     3. Expenses; Indemnification Procedure.



          (a) Advancement of Expenses. The Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense, settlement or appeal of any civil or
criminal action, suit or proceeding referred to in Section 1(a) or Section 1(b) hereof (including
amounts actually paid in settlement of any such action, suit or proceeding). Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the Company as authorized hereby.




          (b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition precedent to
his or her right to be indemnified under this Agreement, give the Company notice in writing as soon
as practicable of any claim made against Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be directed to the Chief Executive
Officer of the Company and shall be given in accordance with the provisions of




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Section 12(d) below. In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee’s power.




          (c) Procedure. Any indemnification and advances provided for in Section 1 and this
Section 3 shall be made no later than twenty (20) days after receipt of the written request of
Indemnitee. If a claim under this Agreement, under any statute, or under any provision of the
Company’s Certificate of Incorporation or Bylaws providing for indemnification, is not paid in full
by the Company within twenty (20) days after a written request for payment thereof has first been
received by the Company, Indemnitee may, but need not, at any time thereafter bring an action
against the Company to recover the unpaid amount of the claim and, subject to Section 11 of this
Agreement, Indemnitee shall also be entitled to be paid for the expenses (including attorneys’
fees) of bringing such action. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any action, suit or proceeding
in advance of its final disposition) that Indemnitee has not met the standards of conduct which
make it permissible under applicable law for the Company to indemnify Indemnitee for the amount
claimed, but the burden of proving such defense shall be on the Company and Indemnitee shall be
entitled to receive interim payments of expenses pursuant to Section 3(a) unless and until such
defense may be finally adjudicated by court order or judgment from which no further right of appeal
exists. It is the parties’ intention that if the Company contests Indemnitee’s right to
indemnification, the question of Indemnitee’s right to indemnification shall be for the court to
decide, and neither the failure of the Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or its stockholders) to have made a
determination that indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by applicable law, nor an actual determination
by the Company (including its Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its stockholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that Indemnitee has or has not met the
applicable standard of conduct.




          (d) Notice to Insurers. If, at the time of the receipt of a notice of a claim
pursuant to Section 3(b) hereof, the Company has director and officer liability 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.




          (e) Selection of Counsel. In the event the Company shall be obligated under Section
3(a) hereof to pay the expenses of any proceeding against Indemnitee, the Company if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel approved by Indemnitee
(which approval shall not be unreasonably withheld or unduly delayed), upon the delivery to
Indemnitee of written notice of its election so to do. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not
be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same proceeding, provided that (i) Indemnitee shall have the right
to employ counsel in any such proceeding at Indemnitee’s expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized




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by the Company, (B) Indemnity 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 (C) the Company
shall not, in fact, have employed counsel to assume the defense of such proceeding, then the fees
and expenses of Indemnitee’s counsel shall be at the expense of the Company.




     4. Additional Indemnification Rights; Nonexclusivity.



          (a) Scope. Notwithstanding any other provision of this Agreement, the Company hereby
agrees to indemnify the Indemnitee to the fullest extent permitted by law, notwithstanding that
such indemnification is not specifically authorized by the other provisions of this Agreement, the
Company’s Certificate of Incorporation, the Company’s Bylaws or by statute. In the event of any
change, after the date of this Agreement, in any applicable law, statute, or rule which expands the
right of a Delaware corporation to indemnify a member of its board of directors or an officer, such
changes shall be deemed to be within the purview of Indemnitee’s rights and the Company’s
obligations under this Agreement. In the event of any change in any applicable law, statute or
rule which narrows the right of a Delaware corporation to indemnify a member of its board of
directors or an officer, such changes, to the extent not otherwise required by such law, statute or
rule to be applied to this Agreement shall have no effect on this Agreement or the parties’ rights
and obligations hereunder.




          (b) Nonexclusivity. The indemnification provided by this Agreement shall not be
deemed exclusive of any rights to which Indemnitee may be entitled under the Company’s Certificate
of Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested members of
the Company’s Board of Directors, the General Corporation Law of the State of Delaware, or
otherwise, both as to action in Indemnitee’s official capacity and as to action in another capacity
while holding such office. The indemnification provided under this Agreement shall continue as to
Indemnitee for any action taken or not taken while serving in an indemnified capacity even though
he or she may have ceased to serve in any such capacity at the time of any action, suit or other
covered proceeding.




     5. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the expenses, judgments, fines
or penalties actually or reasonably incurred in the investigation, defense, appeal or settlement of
any civil or criminal action, suit or proceeding, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments,
fines or penalties to which Indemnitee is entitled.



     6. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge that in certain
instance, Federal law or public policy may override applicable state law and prohibit the Company
from indemnifying its directors and officers under this Agreement or otherwise. For example, the
Company and Indemnitee acknowledge that the Securities and Exchange Commission (the “SEC”)
has taken the position that indemnification is not permissible for liabilities arising under
certain federal securities laws, and federal legislation prohibits indemnification for certain
ERISA violations. Indemnitee understands and acknowledges that the Company has undertaken or may
be required in the future to undertake with the SEC to submit the question of indemnification to a
court in certain circumstances for a determination of the Company’s right under public policy to
indemnify Indemnitee.



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     7. Officer and Director Liability Insurance. The Company shall, from time to time,
make the good faith determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of insurance with reputable insurance companies providing the
officers and directors of the Company with coverage for losses from wrongful acts, or to ensure the
Company’s performance of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance coverage against the
protection afforded by such coverage. In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide Indemnitee the same rights
and benefits as are accorded to the most favorably insured of the Company’s directors, if
Indemnitee is a director; or of the Company’s officers, if Indemnitee is not a director of the
Company but is an officer; or of the Company’s key employees, if Indemnitee is not an officer or
director but is a key employee. Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain such insurance if the Company determines in good faith that such
insurance is not reasonably available, if the premium costs for such insurance are disproportionate
to the amount of coverage provided, if the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit, or if Indemnitee is covered by similar
insurance maintained by a parent or subsidiary of the Company.



     8. Severability. Nothing in this Agreement is intended to require or shall be
construed as requiring the Company to do or fail to do any act in violation of applicable law. The
Company’s 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 8. If this Agreement or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee 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.



     9. 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 Indemnitee
with respect to proceedings or claims initiated or brought voluntarily by 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 145 of the Delaware General Corporation Law, 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;




          (b) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by
Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the material assertions
made by Indemnitee in such proceeding was not made in good faith or was frivolous;




          (c) Insured Claims. To indemnify Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) to the extent such expenses or liabilities have been




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paid directly to Indemnitee by an insurance carrier under a policy of officers’ and directors’
liability insurance maintained by the Company;




          (d) Claims under Section 16(b). To indemnify Indemnitee for expenses or 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;




          (e) Certain Claim related to Compensation. To indemnify Indemnitee in respect of
claims relating 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; or




          (f) Adverse Determination. To indemnify Indemnitee in any proceeding if it shall be
determined by a final judgment or other final adjudication that the Indemnity’s conduct was
knowingly fraudulent or deliberately dishonest or constituted willful misconduct; or




          (g) Indemnification Unlawful. To indemnify Indemnitee in any proceeding if it shall
be determined by a final judgment or other final adjudication that such indemnification is not
lawful.




     10. Construction of Certain Phrases.



          (a) For purposes of this Agreement, references to the “Company” shall include, in
addition to the resulting corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and employees or agents,
so that if Indemnitee is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.




          (b) For purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to “serving at the request
of the Company” shall include [MISSING] of the company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the
best interests of the Company” as referred to in this Agreement.




     11. Attorneys’ Fees. In the event that any action is instituted by Indemnitee under
this Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be entitled to be
paid all court costs and expenses, including reasonable attorneys’ fees, incurred by Indemnitee
with respect to such action, unless as a part of such action, the court of competent jurisdiction
determines that each of the material assertions made by Indemnitee as a basis for such action



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were not made in good faith or were frivolous. In the event of an action instituted by or in
the name of the Company 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
attorneys’ fees, incurred by Indemnitee in defense of such action (including with respect to
Indemnitee’s counterclaims and cross-claims made in such action), unless as a part of such action
the court determines that each of Indemnitee’s material defenses to such action were made in bad
faith or were frivolous.




     12. Miscellaneous.



          (a) Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to principles of conflict
of law.




          (b) Entire Agreement; Enforcement of Rights. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter herein and merges all
prior discussions between them. No modification of or amendment to this Agreement, nor any waiver
of any rights under this Agreement, shall be effective unless in writing signed by the parties to
this Agreement. The failure by either party to enforce any rights under this Agreement shall not
be construed as a waiver of any rights of such party.




          (c) Construction. This Agreement is the result of negotiations between and has been
reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this
Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be
construed in favor of or against any one of the parties hereto.




          (d) Notices. Any notice, demand or request required or permitted to be given under
this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent
by telegram or fax, or forty-eight (48) hours after being deposited in the U.S. mail, as certified
or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s
address as set forth below or as subsequently modified by written notice.




          (e) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed original and all of which taken together shall constitute one instrument.




          (f) Successor and Assigns. This Agreement shall be binding upon the Company and its
successors and assigns, and inure to the benefit of Indemnitee and Indemnitee’s heirs, legal
representatives and assigns.




          (g) Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all documents required and shall do all acts that may be necessary to secure such rights
and to enable the Company to effectively bring suit to enforce such rights.




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set
forth on the first page of this Agreement.



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	 	 	GlobalSecure Holdings Ltd.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Craig R. Bandes
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:
	 	President
	 
	 	 	 	 
	 

	 	Address:
	 	8401 Corporate Drive
	 

	 	 	 	Suite 230
	 

	 	 	 	Landover, MD 20785






	 	 	 
	AGREED TO AND ACCEPTED:
	 	 
	 
	 	 
	C. Thomas McMillen
	 	 
	(Print or type name)
	 	 
	 
	 	 
	/s/ C. Thomas McMillen
	 	 
	 	 	 
	(Signature)
	 	 






	 	 	 
	Address:

	 	1103 South Carolina Avenue, SE
	 

	 	Washington, D.C. 20003







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