bkti_ex101





 







Exhibit 10.1


 



FORM OF INDEMNIFICATION AGREEMENT


 


THIS AGREEMENT is made this ______ day
of _______________, 20__ by and between BK Technologies
Corporation, a Nevada corporation (the “Corporation”),
and ___________________ (the “Director and/or
Officer”).


 


WHEREAS, the Director and/or Officer has
agreed to serve, or continue to serve, as a director and/or officer
of the Corporation or as a director, officer, trustee, manager,
participating member and/or in any other similar capacity of an
Other Entity (as defined below) (anyone or more of which capacities
constitute an “Indemnified
Capacity”), providing that adequate liability
insurance, indemnification or a combination thereof is, and will
continue to be, provided;


 


WHEREAS, the Corporation, in order to
induce the Director and/or Officer to serve or continue to serve
the Corporation and/or an Other Entity, has agreed to execute this
Agreement to evidence the indemnification of the Director and/or
Officer to the fullest extent permitted by law; and


 


WHEREAS, as a result of such
indemnification, the Director and/or Officer has agreed to serve or
to continue to serve in an Indemnified Capacity;


 


NOW THEREFORE, in consideration of the
promises, conditions, representations and warranties set forth
herein, including the Director and/or Officer’s service or
continued service to the Corporation and/or Other Entity, the
Corporation and the Director and/or Officer hereby agree as
follows:


 



1. 

Definitions:
In addition to the other defined words and phrases contained in
this Agreement, as used in this Agreement, the following terms have
the following meanings, respectively:






 



(a) 

“Agreement” means this
Indemnification Agreement, as amended, supplemented or restated
from time to time;






 



(b) 

“Covered Proceeding” means all
civil, criminal, quasi-criminal, administrative, regulatory,
investigative or other claims, suits, actions, applications,
hearings, arbitrations or proceedings of any nature or kind in
which the Director and/or Officer has been named as party or
respondent or is required by law to participate or respond because
of his or her association with the Corporation or Other Entity, or
in which the Director and/or Officer participates either at the
request of the Corporation or Other Entity or based on his or her
reasonable belief that he or she may be subsequently named in that
proceeding, and also includes any and all proceedings that relate
to, arise from or are based upon the Director and/or Officer's
service in an Indemnified Capacity, so long as:






 




 

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(i) 

the Director and/or
Officer acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests
of the Corporation and/or Other Entity, as the case may
be;





 



(ii) 

in the case of a
criminal, quasi-criminal, regulatory or administrative action,
proceeding or hearing that is enforced by a monetary penalty, the
Director and/or Officer had reasonable cause to believe that the
Director and/or Officer’s conduct was lawful;
and






 



(iii) 

the Director and/or
Officer is not liable pursuant to NRS 78.138.






 


(which
conduct collectively constitutes the “Standards of
Conduct”);


 



(c) 

“Excluded Proceeding” means any
civil, criminal, quasi-criminal, administrative, regulatory, or
investigative or other claim, suit, action, application, bearing,
arbitration or proceeding of any nature or kind:






 



(i) 

initiated by the
Director and/or Officer against the Corporation or Other Entity,
unless it is brought to establish or enforce any right under this
Agreement;






 



(ii) 

initiated by the
Director and/or Officer against any director or officer (or an
individual holding a similar capacity) of the Corporation or Other
Entity unless the Corporation or Other Entity, as the case may be,
has joined in or consented to the initiation of such
proceeding;






 



(iii) 

initiated by the
Director and/or Officer against any other corporation, partnership,
trust, joint venture, unincorporated entity or person, unless it is
a counterclaim;






 



(iv) 

involving the
payment or reimbursement for Losses or Expenses to the Director
and/or Officer by the Corporation not permitted by applicable law
including, without limitation, NRS 78.751 and/or 78.7502;
or






 



(v)           

which is not a
Covered Proceeding;






 



(d) 

“Expenses” means any and all fees,
charges, disbursements and expenses which may be reasonably
incurred by the Director and/or Officer in connection with or as a
result of the investigation and defense of a Covered Proceeding,
including, without limitation, reasonable and necessary
attorneys’ fees, expert witness fees, costs, expenses and
disbursements, costs of investigative, judicial, regulatory or
administrative proceedings, arbitrations or appeals and, subject to
the terms of this Agreement, all such fees, charges, disbursements
and expenses which the Director and/or Officer may reasonably incur
in any proceedings to enforce rights and/or defend against or
respond to a Covered Proceeding under this Agreement;






 




 

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(e)           

“Indemnified Capacity” has the
meaning set out in the recitals to this Agreement;






 



(f) 

“Losses” means all judgements,
damages, fines, penalties, liabilities, settlement amounts or any
other expense which the Director and/or Officer may incur or become
liable to pay as a result of any Covered Proceeding, whether
incurred alone or jointly with others, and includes
Expenses;






 



(g) 

“Other Entity” means each
subsidiary or affiliate of the Corporation and each of the
respective committees or bodies of such subsidiary or affiliate, in
each case, for which the Director and/or Officer has agreed to
serve in an Indemnified Capacity at the request of the Corporation;
and






 



(h)           

 “Standards of Conduct” has the
meaning set out at subsection 1(b) herein.






 



2. 

Indemnification:
The Corporation shall indemnify and hold the Director and/or
Officer harmless against any and all Losses and Expenses which the
Director and/or Officer may incur or be required to pay as a result
of any Covered Proceeding subject, in each case, to the provisions
of this Agreement and the following:






 



(a) 

unless a court or
other authority of competent jurisdiction has expressly so ruled in
respect of the Director and/or Officer, the resolution of any
Covered Proceeding by judgment, order, settlement or conviction
shall not of itself create a presumption either that the Director
and/or Officer did not adhere to the Standards of Conduct in the
circumstances relating to the Covered Proceeding or that the
Director and/or Officer is not entitled to indemnity under this
Agreement; and






 



(b) 

in respect of an
action by or on behalf of the Corporation to procure judgement in
its favor to which the Director and/or Officer is made a party by
reason of having served in an Indemnified Capacity, the Corporation
shall make application for approval of the court having
jurisdiction to furnish indemnity and make advances as needed by
the Director and/or Officer, provided that the Director and/or
Officer adhered to the Standards of Conduct.






 



3. 

Excluded
Coverage: The
Corporation shall have NO obligation to indemnify and hold the
Director and/or Officer harmless against any Losses or Expenses
which have been judicially determined to constitute an Excluded
Proceeding.






 



4.            

Indemnification
Procedures:






 



(a) 

Promptly after
receipt by the Director and/or Officer of notice of the
commencement, or the threat of commencement, of a Covered
Proceeding or potential Covered Proceeding (a “Commencement Notice”), the
Director and/or Officer shall, if indemnification with respect
thereto may be sought from the Corporation under this Agreement,
notify the Corporation in writing in respect thereof and provide to
the Corporation concurrently there with copies of any demand
letter, Statement of Claim, complaint, pleading, request for
arbitration, regulatory or administrative demand, indictment or
other claim document. If the Corporation becomes aware of any
Covered Proceeding or reasonably expects that a Covered Proceeding
or potential Covered Proceeding may be made, the Corporation will
promptly give the Director and/or Officer notice thereof in writing
(also a “Commencement
Notice”).






 




 

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(b) 

If, at the time of
the receipt or delivery of a Commencement Notice, the Corporation
has applicable directors’ and officers’ liability
insurance in effect, the Corporation shall give immediate notice of
the commencement, or the threat of commencement, of such Covered
Proceeding or potential Covered Proceeding to its insurers, primary
and excess, in accordance with the procedures set forth in the
respective policies in favor of the Director and/or Officer. The
Corporation shall thereafter take all necessary or desirable action
to cause such insurers to pay, on behalf of the Director and/or
Officer, all Losses and Expenses payable as a result of such
Covered Proceeding or potential Covered Proceeding in accordance
with the terms of such policies, including but not limited to the
payment of any applicable deductible or retention.






 



(c) 

To the extent the
Corporation does not, at the time of the commencement of or the
threat of commencement of a Covered Proceeding or potential Covered
Proceeding, have applicable directors’ and officers’
liability insurance in effect, or if a determination is made by the
insurance carrier that any Expenses arising out of such Covered
Proceeding or potential Covered Proceeding will not be payable
under the directors’ and officers’ liability insurance
then in effect, the Corporation shall be obligated to pay
contemporaneously the Expenses of any such action, suit,
arbitration or proceeding in advance of the final disposition
thereof; and the Corporation shall be entitled, at its expense and
in a timely manner, to assume the defense of such Covered
Proceeding or potential Covered Proceeding with counsel
satisfactory to the Director and/or Officer, acting reasonably,
upon the delivery to the Director and/or Officer of written notice
of its election so to do (a “Defense Notice”). After
the Director and/or Officer is in receipt of a Defense Notice, the
Corporation will not be liable to the Director and/or Officer under
this Agreement for any Expenses subsequently informed by the
Director and/or Officer in connection with any such Covered
Proceeding or potential Covered Proceeding and the Corporation will
keep the Director and/or Officer informed on a timely basis
regarding all material steps and developments, provided that the
Director and/or Officer shall have the right to employ his or her
own counsel in any such Covered Proceeding or potential Covered
Proceeding, but the fees and expenses of such counsel incurred
after receipt of the Defense Notice shall be at the Director and/or
Officer’s expense, provided however that if:






 



(i) 

the employment of
counsel by the Director and/or Officer has been previously
authorized by the Corporation;






 




 

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(ii) 

the Director and/or
Officer shall have reasonably concluded that there may be a
conflict of interest between the Corporation and the Director
and/or Officer in the conduct of any such defense; or






 



(iii) 

the Corporation
does not in a timely manner employ counsel to assume the defense of
such Covered Proceeding or potential Covered Proceeding or
undertake such legal steps as may from time to time be needed to
properly defend the Director and/or Officer against such Covered
Proceeding or potential Covered Proceeding; then the
attorneys’ fees, costs and expenses of such counsel employed
by the Director and/or Officer shall be at the sole expense of the
Corporation.






 



(d) 

The Director and/or
Officer and his or her advisors, including, but not limited to,
legal counsel, may, with the consent of the Corporation’s
chairperson or board of directors (which consent shall not be
unreasonably withheld or delayed), review during regular business
hours all documents, records and other information under the
Corporation’s control with respect to the Corporation or any
Other Entity in which the Director and/or Officer has served in an
Indemnified Capacity and which may be reasonably necessary in order
for the Director and/or Officer to defend himself or herself
against any Covered Proceeding or potential Covered Proceeding,
provided that the Director and/or Officer and his or her advisors,
including legal counsel, shall maintain all such information in the
strictest confidence except to the extent necessary for his or her
defense in the Covered Proceeding or potential Covered Proceeding.
At any time after there has been a change of control of the
Corporation, or a receiver, rehabilitator, liquidator or trustee in
bankruptcy has been appointed in respect of the Corporation, the
Director and/or Officer and his or her advisors shall be entitled
to review the information referred to in this subsection 4(d),
subject to the conditions set out herein, whether or not the
Corporation’s new chairperson or board of directors or the
receiver or trustee in bankruptcy has provided the consent referred
to herein. The Director and/or Officer’s right to review
documents shall not apply where the claim or proceeding is
initiated by the Corporation or by any of its subsidiaries,
provided, however, that this limitation is not meant to in any way
limit or preclude any party’s right to discovery, production
of documents or other legal process.






 



(e) 

All payments on
account of the Corporation’s obligations under subsection
4(c) of this Agreement prior to the final disposition of any
Covered Proceeding or potential Covered Proceeding shall be made
within twenty (20) days of the Director and/or Officer’s
written request therefore (which written request shall be
accompanied by applicable supporting documentation) and such
obligation shall not be subject to any such determination, but
shall be subject to subsection 4(c) of this Agreement.






 




 

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(f) 

The Director and/or
Officer undertakes and agrees that he or she will reimburse the
Corporation for all Losses and Expenses paid or reimbursed by the
Corporation in connection with any action, suit or proceeding
against the Director and/or Officer in the event and only to the
extent that a determination shall have been made by a court in a
final adjudication, from which all rights of appeal have expired,
that the Director and/or Officer is not entitled to be indemnified
by the Corporation for such Losses and Expenses because the claim
is an Excluded Proceeding or because the Director and/or Officer is
otherwise not entitled to payment under this
Agreement.






 



(g) 

All payments on
account of the Corporation’s indemnification obligations
under this Agreement, other those addressed by subsection 4(c),
shall be made within twenty (20) days of the Corporation’s
determination that indemnification is proper under the specific
circumstances, unless a judicial determination has been made that
the claims giving rise to the Director and/or Officer’s
request are or are not Excluded Proceedings or otherwise payable or
not payable under this Agreement, in which case that judicial
determination shall govern.






 



(i) 

The Corporation
shall have no duty to indemnify any amounts, other than those
addressed by subsection 4(c), absent a written request from the
Director and/or Officer, which written request shall be accompanied
by applicable supporting documentation.






 



(ii) 

The determination
required under subsection 4(g) shall be made, in the first
instance, by the board of directors, by majority vote of a quorum
consisting of directors who were not parties to the action, suit or
proceeding. Such determination shall be made, if necessary, by
independent legal counsel, in a written opinion, if: (1) A majority
vote of a quorum consisting of directors who were not parties to
the action, suit or proceeding so orders; or (2) A quorum
consisting of directors who were not parties to the action, suit or
proceeding cannot be obtained. In the event that a determination by
the board of directors and by independent legal counsel both prove
unfeasible, the determination shall be made by the stockholders of
the Corporation.






 



(iii) 

The determination
required under subsection 4(g) shall be made either (1) within
thirty (30) days of the Director and/or Officer’s written
request therefore, if made by the board of directors or independent
legal counsel, or (2) within ninety (90) days of the Director
and/or Officer’s written request therefore, if made by the
stockholders of the Corporation.






 




 

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5. 

Settlement:
The Corporation shall have no obligation to indemnify the Director
and/or Officer under this Agreement for any amounts paid in
settlement of any Covered Proceeding effected without the
Corporation’s prior written consent. The Corporation shall
not conclude a settlement of any Covered Proceeding or potential
Covered Proceeding on the Director and/or Officer's behalf without
the Director and/or Officer’s prior written consent. Neither
the Corporation nor the Director and/or Officer shall unreasonably
withhold or delay consent to any proposed settlement of a Covered
Proceeding. If the Director and/or Officer refuses to consent to
the terms of a proposed settlement the Corporation may require the
Director and/or Officer, at his or her own expense, to assume
defense of the Covered Proceeding. In such a case, any amount
recovered by the claimant in excess of the amount for which
settlement could have otherwise been achieved shall not be
recoverable under this Agreement. A Director and/or Officer shall
at all times have the right, at his or her own expense, to
negotiate and conclude settlement of a Covered Proceeding made
against the Director and/or Officer.






 



6. 

Rights Not
Exclusive: This
Agreement shall not operate to abridge or exclude any other rights,
in law or in equity, to which the Director and/or Officer may be
entitled by operation of law or under any statute, bylaw,
agreement, vote of security holders or of disinterested directors
or otherwise, both as to action in an Indemnified Capacity and as
to action in any other capacity by holding such office, and shall
continue after the Director and/or Officer ceases to serve the
Corporation in an Indemnified Capacity.






 



7.            

Enforcement:






 



(a) 

Except where
prohibited by law, the burden of proving that indemnification is
not required under this Agreement shall be on the Corporation and
must be made by a court of law.






 



(b) 

In the event that
any action or proceeding is instituted by the Director and/or
Officer under this Agreement to enforce or interpret any of the
terms of this Agreement, the Director and/or Officer shall be
entitled to be paid all court, arbitration or mediation costs and
expenses, including but not limited to reasonable legal fees and
disbursements, incurred by the Director and/or Officer with respect
to such action or proceeding, unless the court, arbitrator or
mediator determines that each of the material assertions made by
the Director and/or Officer as a basis for such action or
proceeding were not made in good faith or were
frivolous.






 



8.            

Duration:






 



(a) 

Notwithstanding the
date(s) of its execution and delivery, this Agreement shall be
conclusively deemed to commence on the day upon which the Director
and/or Officer first became or becomes a director, officer,
trustee, manager and/or participating member of the Corporation
and/or an Other Entity or first undertook or undertakes the
responsibilities associated with an Indemnified
Capacity.






 



(b) 

The obligations of
the Corporation under this Agreement shall continue after the
Director and/or Officer ceases to serve in an Indemnified Capacity.
Upon ceasing to so act, the Director and/or Officer shall continue
to be entitled to all stipulated rights and indemnification
hereunder.






 



(c) 

The liability of
the Corporation under this Agreement shall not be affected,
discharged, impaired, mitigated or released by reason of the
discharge or release of the Director and/or Officer in any
bankruptcy, insolvency, receivership or other similar proceeding of
creditors.






 


 




 

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9.            

Insurance:






 



(a) 

The Corporation
shall maintain in full force and effect a comprehensive program of
liability insurance, including policies providing coverage for the
liability exposures of directors and officers (the
“Policies”). To the extent commercially feasible, the
salient coverage features of the Policies to be maintained shall be
substantially the same as those applicable under the Policies
obtained by the Corporation and in effect on the date
hereof.






 



(b) 

If for any reason
whatsoever the Director and/or Officer ceases to act in an
Indemnified Capacity, the Corporation shall ensure that the
liability insurance coverage available to the Director and/or
Officer and his or her heirs and legal representatives is at all
times substantially equivalent to the coverage maintained for the
then current directors and officers. The Corporation shall maintain
such continuing coverage for a minimum of six years following the
Director and/or Officer ceasing to act in an Indemnified
Capacity.






 



(c) 

In the event that a
claim is brought in which the Director and/or Officer is named as
party, the Corporation shall promptly pay the insurance deductible
or retention applicable under any responding Policies providing
coverage to the Director and/or Officer.






 



(d) 

If one or more of
the Policies providing coverage on a “claims-made”
basis is cancelled or is not renewed, the Corporation will promptly
purchase the maximum degree of extended reporting or discovery
period coverage available under such Policies unless.






 



(i) 

replacement
liability insurance has been obtained that does not contain a
“retroactive date” or similar provision that might
deprive the Director and/or Officer of coverage for wrongful acts
alleged to have been committed prior to the inception date of such
replacement insurance; or






 



(ii) 

the Corporation is
unable to fund the purchase of such extended coverage by reason of
its insolvency or bankruptcy, in which case the Director and/or
Officer shall be given reasonable notice regarding its inability to
fund such purchase together with an identification of the
additional premium that would be required to exercise the extended
reporting or discovery period coverage option of the relevant
Policies.






 



(e)           

The Corporation
shall promptly advise the Director and/or Officer if:






 



(i) 

any Policy lapses,
is cancelled, or undergoes any material adverse change in coverage
or is rescinded in whole or in part; or






 




 

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(ii) 

any insurer informs
the Corporation that all or part of a particular Covered Proceeding
or potential Covered Proceedings not covered by one or more of the
Policies.






 



10. 

Severability:
In the event that any provision of this Agreement is determined by
a court to require the Corporation to do or to fail to do any act
which is in violation of applicable law, 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 their terms.






 



11. 

Choice of Law;
Jurisdiction: This
Agreement shall be deemed to have been made in and shall be
governed by and construed and enforced in accordance with the laws
of the State of Nevada. The parties hereby agree that any claims,
disputes or questions arising out of or in relation to this
Agreement may be submitted to the jurisdiction of the courts of the
State of Nevada. Each of the parties hereto irrevocably attorns to
the jurisdiction of the courts of the State of Nevada with respect
to any claims, disputes or questions arising out of or in relation
to this Agreement.






 



12. 

Subrogation:
In the event of any indemnification payment under this Agreement to
or on behalf of the Director and/or Officer, the Corporation shall
be subrogated to the extent of such payment to all of the rights of
recovery of the Director and/or Officer, who shall execute all
documents and take all actions reasonably requested by the
Corporation to implement such right of subrogation.






 



13. 

Successor and
Assigns: This
Agreement shall be binding upon all successors and assigns of the
Corporation (including any transferee of all or substantially all
of its assets and any successor by merger or otherwise by operation
of law), and shall be binding upon and inure to the benefit of the
Director and/or Officer and his or her heirs, executors,
administrators, legal personal representatives and
estate.






 



14. 

Amendment;
Waiver: No amendment,
modification, termination or cancellation of this Agreement shall
be effective unless made in writing signed by each of 1he parties
hereto. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision nor shall any waiver of
any provision of this Agreement constitute a continuing waiver
unless o1herwise expressly provided.






 



15. 

Execution In
Counterparts: This
Agreement may be executed in several counterparts, by original or
facsimile signature or by or through such other electronic form in
which a party may place or evidence its signature hereon (including
an electronic scan of same), each of which so executed shall be
deemed to be an original and such counterparts together shall be
deemed to be one and the same instrument, which shall be deemed to
be executed as of the day and year first above
written.






 


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IN WITNESS WHEREOF, the Corporation and the Director and/or
Officer have executed this Agreement as of the day and year first
above written.


 

 


	

 



 


 

	

 





BK Technologies Corporation


 


By:
_________________________________


Name:


Title


 


_________________________________


Name:


Title

 
 
 
 


	

 



SIGNED, SEALED, AND DELIVERED


In the
presence of:

	

 


)


)

	
 


	

 


 


___________________________________


Signature
of Witness

	

)


)


)   
_____________________________________


)   
Name


)

	

 


 



	

 


 


___________________________________


Print
Full Name of Witness

	

)


)


)


)


)

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 







 


 


 


 


 


 




 

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