Exhibit 10.2
** **
KAT CONSTRUCTION SERVICES, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”) is made as of ____________, 2026, by and between KAT Construction Services, Inc., a Delaware corporation (the “Company”), and ______________________________ (“Indemnitee”).
RECITALS
WHEREAS, highly qualified persons may be reluctant to serve publicly held corporations as directors or officers unless they are provided with adequate protection through insurance and contractual indemnification against risks arising from such service;
WHEREAS, Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”), the Company’s Certificate of Incorporation and the Company’s Bylaws contemplate that rights to indemnification and advancement may be provided by agreement and are not necessarily exclusive of other rights;
WHEREAS, the Board has determined that it is reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify Indemnitee and advance Expenses to the fullest extent permitted by applicable law, subject to the terms of this Agreement; and
WHEREAS, Indemnitee is willing to serve or continue to serve the Company in reliance upon the rights provided by this Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the parties agree as follows:
1. Service to the Company.
Indemnitee agrees to serve or continue to serve as a director and/or officer of the Company, as applicable, for so long as Indemnitee is duly elected or appointed or until Indemnitee resigns or is removed in accordance with applicable law and the Company’s governing documents. This Agreement does not create any right to continued service or employment. The rights provided by this Agreement continue after Indemnitee ceases to serve in any Corporate Status with respect to acts or omissions occurring while serving in such Corporate Status.
2. Definitions.
“Change in Control” means, unless otherwise determined by the Board before the applicable event, the occurrence after the date of this Agreement of (i) any Person becoming the beneficial owner of more than 50% of the combined voting power of the Company’s then outstanding voting securities, other than through a transaction in which the holders immediately before the transaction continue to hold more than 50% of the voting power of the surviving or parent entity; (ii) a merger, consolidation or similar business combination in which the Company’s stockholders immediately before the transaction do not retain more than 50% of the voting power of the surviving or parent entity; (iii) the sale or other disposition of all or substantially all of the Company’s assets; or (iv) the approval by the stockholders of a plan of complete liquidation or dissolution of the Company.
“Corporate Status” means the status of a person who is or was a director, officer, employee, trustee, fiduciary or agent of the Company, or who is or was serving at the request of the Company as a director, officer, employee, trustee, fiduciary or agent of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise.
“Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
“Expenses” includes all reasonable attorneys’ fees, retainers, court costs, transcript costs, expert and witness fees, fees of private investigators and professional advisors, travel expenses, duplicating and printing costs, telephone and electronic communication charges, postage, delivery service fees, appeal-bond premiums and other costs or expenses of the types customarily incurred in connection with investigating, defending, preparing to defend, being or preparing to be a witness in, prosecuting, appealing or otherwise participating in a Proceeding, including Expenses incurred to enforce rights under this Agreement to the extent provided herein. Expenses do not include judgments, fines, penalties or amounts paid in settlement.
“Independent Counsel” means a law firm or lawyer experienced in Delaware corporation law that is independent with respect to the Company, Indemnitee and the Proceeding and that does not have a conflict of interest under applicable professional-conduct rules.
“Person” has the meaning set forth in Sections 13(d) and 14(d) of the Exchange Act, but excludes the Company, any employee benefit plan of the Company and any entity owned directly or indirectly by the Company’s stockholders in substantially the same proportions as their ownership of the Company.
“Proceeding” includes any threatened, pending or completed action, suit, arbitration, mediation, alternative dispute resolution matter, investigation, inquiry, administrative hearing, regulatory matter, legislative hearing, subpoena, request for testimony or documents, or other proceeding, whether civil, criminal, administrative, investigative or otherwise, and any appeal therefrom, in which Indemnitee is or may be involved as a party, potential party, witness or otherwise by reason of Indemnitee’s Corporate Status or by reason of any action taken or omitted in such Corporate Status, whether or not Indemnitee is serving in that Corporate Status when the liability or Expense is incurred.
3. Indemnification in Third-Party Proceedings.
If, by reason of Indemnitee’s Corporate Status, Indemnitee is or is threatened to be made a party to or participant in any Proceeding other than a Proceeding by or in the right of the Company, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses, judgments, fines, penalties and amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with the Proceeding, provided that the applicable standard of conduct under the DGCL is satisfied.
4. Indemnification in Proceedings by or in the Right of the Company.
If, by reason of Indemnitee’s Corporate Status, Indemnitee is or is threatened to be made a party to or participant in a Proceeding by or in the right of the Company, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law against Expenses actually and reasonably incurred by or on behalf of Indemnitee in connection with the Proceeding. No indemnification shall be made in respect of a claim, issue or matter as to which Indemnitee has been finally adjudged liable to the Company except to the extent the Delaware Court of Chancery or the court in which the Proceeding was brought determines that, despite the adjudication of liability and in view of all the circumstances, Indemnitee is fairly and reasonably entitled to indemnification for such Expenses.
5. Mandatory Indemnification for Successful Defense.
Notwithstanding any other provision of this Agreement, to the extent Indemnitee has been successful on the merits or otherwise in defense of any Proceeding described in Sections 3 or 4, or in defense of any claim, issue or matter therein, the Company shall indemnify Indemnitee against Expenses actually and reasonably incurred in connection therewith to the fullest extent required by Section 145(c) of the DGCL. If Indemnitee is successful as to fewer than all claims, issues or matters, Indemnitee shall be indemnified for Expenses relating to each successfully resolved claim, issue or matter.
6. Witness and Other Participation.
To the fullest extent permitted by applicable law, if Indemnitee, by reason of Corporate Status, is a witness, is interviewed, responds to a subpoena or document request, or otherwise participates in a Proceeding to which Indemnitee is not a party, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by or on behalf of Indemnitee in connection therewith.
27. Advancement of Expenses.
The Company shall advance Expenses incurred by Indemnitee in connection with a Proceeding described in this Agreement within twenty (20) days after receipt of a written request from Indemnitee accompanied by reasonable supporting documentation. Advances shall be unsecured and interest-free and shall be made without regard to Indemnitee’s ability to repay.
As a condition to advancement, Indemnitee shall provide an undertaking to repay amounts advanced if and to the extent it is ultimately determined by a final, non-appealable adjudication that Indemnitee is not entitled to indemnification under this Agreement or applicable law. Execution of this Agreement constitutes such undertaking to the fullest extent permitted by the DGCL, and no additional form of undertaking shall be required unless applicable law requires otherwise.
8. Procedure for Indemnification.
To obtain indemnification after final disposition of a Proceeding, Indemnitee shall submit a written request to the Company containing such information as is reasonably available and reasonably necessary to determine entitlement. The omission or delay by Indemnitee in providing notice of a Proceeding does not relieve the Company of any obligation under this Agreement except to the extent the Company is materially prejudiced by such omission or delay.
If a determination of entitlement is required by applicable law, the determination shall be made by one of the methods permitted by Section 145(d) of the DGCL. Following a Change in Control, if requested by Indemnitee, the determination shall be made by Independent Counsel selected by Indemnitee and reasonably acceptable to the Company. The Company shall pay the reasonable fees and expenses of Independent Counsel.
9. Presumptions and Burden of Proof.
In making any determination concerning Indemnitee’s entitlement to indemnification, the person or body making the determination shall, to the fullest extent permitted by law, presume that Indemnitee is entitled to indemnification under this Agreement, and the Company shall bear the burden of proving by clear and convincing evidence that Indemnitee is not entitled to indemnification. The termination of any Proceeding by judgment, order, settlement, conviction or plea does not, of itself, create a presumption that Indemnitee failed to satisfy any applicable standard of conduct.
Neither the failure of the Company to make a determination before the commencement of an enforcement proceeding nor an adverse determination by the Company shall create a presumption that Indemnitee is not entitled to indemnification or advancement.
10. Defense and Settlement.
The Company may participate in the defense of any Proceeding at its own expense. The Company may assume the defense of a Proceeding with counsel reasonably satisfactory to Indemnitee unless Indemnitee reasonably determines, based on advice of counsel, that an actual conflict of interest exists between Indemnitee and the Company in the conduct of the defense. If the Company assumes the defense, the Company shall not be liable for fees of separate counsel subsequently incurred by Indemnitee except as otherwise provided in this Section.
The Company shall not settle any Proceeding in a manner that imposes any admission of wrongdoing, monetary obligation not fully indemnified, material non-monetary restriction or other material adverse consequence on Indemnitee without Indemnitee’s prior written consent, not to be unreasonably withheld. Indemnitee shall not settle any Proceeding for which indemnification is sought without the Company’s prior written consent, not to be unreasonably withheld.
311. Exclusions.
The Company is not obligated under this Agreement to make any payment (i) to the extent payment has actually been made to or on behalf of Indemnitee under an insurance policy or other indemnity provision, except for any excess; (ii) for disgorgement of profits under Section 16(b) of the Exchange Act; (iii) for reimbursement to the Company of incentive-based compensation, profits or other amounts required to be recovered under applicable law, SEC or Nasdaq rules or the Company’s clawback policy; or (iv) in connection with a Proceeding or claim initiated by Indemnitee against the Company or another indemnitee, except for a Proceeding to enforce Indemnitee’s rights under this Agreement, a Proceeding authorized by the Board, a compulsory counterclaim, or a Proceeding in which indemnification is otherwise required by applicable law.
12. Non-Exclusivity; Other Rights.
The rights provided by this Agreement are in addition to and are not exclusive of any rights to indemnification, advancement or contribution to which Indemnitee may be entitled under the DGCL, the Company’s Certificate of Incorporation, Bylaws, any vote of stockholders or disinterested directors, any other agreement or otherwise. No amendment or repeal of the Company’s governing documents or of applicable law occurring after the date of this Agreement shall adversely affect any right of Indemnitee with respect to any act or omission occurring before such amendment or repeal, except to the extent required by law.
13. Insurance.
To the extent the Company maintains directors’ and officers’ liability insurance, the Company shall use commercially reasonable efforts to cause Indemnitee to be covered by such insurance on substantially the same basis as other similarly situated directors and officers. The Company shall promptly notify applicable insurers of a Proceeding after receiving notice from Indemnitee and shall reasonably cooperate in obtaining coverage. Nothing in this Agreement requires the Company to obtain or maintain any particular amount or type of insurance if the Board determines in good faith that such insurance is unavailable on commercially reasonable terms.
14. Contribution.
If indemnification is unavailable to Indemnitee for any reason other than an exclusion under Section 11, the Company shall, to the fullest extent permitted by law, contribute to the amount of Expenses, judgments, fines, penalties and settlement amounts actually and reasonably incurred by Indemnitee in connection with a Proceeding in such proportion as is fair and reasonable in light of the relative benefits received and relative fault of the Company and Indemnitee, and any other relevant equitable considerations.
15. Enforcement.
If the Company fails to advance Expenses when due or fails to pay a claim for indemnification within sixty (60) days after receipt of a written request following final disposition of the applicable Proceeding, Indemnitee may bring an action in the Delaware Court of Chancery to recover the unpaid amount. If Indemnitee is successful in whole or in part in such action, or in an action brought by the Company to recover advances, the Company shall indemnify Indemnitee for Expenses reasonably incurred in connection with the action to the fullest extent permitted by law.
The Company shall be precluded from asserting in any such action that the procedures and presumptions of this Agreement are not valid, binding and enforceable, except to the extent prohibited by applicable law.
16. Subrogation.
In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all rights of recovery of Indemnitee against third parties, and Indemnitee shall execute documents and take reasonable actions necessary to secure such rights, without prejudice to Indemnitee’s rights to any uninsured or unreimbursed amounts.
417. Duration; Heirs and Successors.
This Agreement continues until and terminates upon the later of (i) ten (10) years after Indemnitee ceases to serve in any Corporate Status and (ii) one (1) year after the final termination of all Proceedings then pending or threatened and of all related enforcement proceedings. The rights of Indemnitee shall continue for matters arising from acts or omissions during Corporate Status and shall inure to the benefit of Indemnitee’s heirs, executors, administrators and personal representatives. This Agreement is binding upon the Company and its successors and assigns, including any successor by merger, consolidation or acquisition of all or substantially all assets.
18. Severability; Interpretation.
If any provision of this Agreement is held invalid or unenforceable, it shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall continue in full force. This Agreement is intended to provide Indemnitee with rights to indemnification and advancement to the fullest extent permitted by applicable law and shall be construed accordingly. If the DGCL is amended after the date of this Agreement to permit broader indemnification or advancement, Indemnitee shall receive the benefits of such amendment to the fullest extent permitted by law.
19. Notices.
All notices under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by nationally recognized overnight courier, or sent by electronic mail with confirmation of transmission, in each case to the address or email address most recently provided by the receiving party to the other party.
20. Governing Law; Exclusive Forum.
This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Delaware. The Delaware Court of Chancery shall have exclusive jurisdiction over any action for advancement or indemnification under this Agreement to the fullest extent provided by Section 145(k) of the DGCL. If the Court of Chancery lacks subject-matter jurisdiction over another dispute arising under this Agreement, the parties submit to the exclusive jurisdiction of another state or federal court located in the State of Delaware.
21. Entire Agreement; Amendments; Waiver.
This Agreement supersedes prior indemnification agreements between the Company and Indemnitee concerning the subject matter hereof, but does not limit rights arising under the Company’s governing documents or applicable law. No amendment, modification or waiver of this Agreement is effective unless in writing signed by both parties, and no amendment may retroactively diminish Indemnitee’s rights with respect to acts or omissions occurring before the amendment.
22. Counterparts; Electronic Signatures.
This Agreement may be executed in counterparts, each of which is deemed an original and all of which constitute one instrument. Signatures delivered electronically or in portable document format shall be effective as originals.
5IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as of the date first written above.
| KAT CONSTRUCTION SERVICES, INC. | INDEMNITEE | |||
| By: | ||||
| Name: | Name: | |||
| Title: |
6
** **