Lucas Energy Inc Form 10-Q

INDEMNIFICATION AGREEMENT

THIS INDEMNIFICATION AGREEMENT is made this day of , , by and between HOLIDAY RV SUPERSTORES, INC., a Florida Corporation (the "Company"), and

Preliminary Statements

A. The Company desires to retain the services of the Indemnitee as a director, officer, employee and/or agent of the Company.

B. Section 607.0850 of the Florida Business Corporation Act (the "Florida Statute") provides a non-exclusive statutory basis for the indemnification of directors, officers, employees and agents of a Florida corporation and authorizes agreements between the Company and its directors, officers, employees and agents with respect to indemnification of such individuals.

C. Recent developments with respect to the terms and availability of directors and officers insurance ("D&O Insurance") have raised questions concerning the adequacy and reliability of the protection afforded to officers and directors by D&O Insurance.

D. Highly competent persons are becoming more reluctant to serve or to continue to serve publicly held corporations as directors or in other capacities unless they are provided with adequate protection through insurance and/or adequate indemnification against claims and actions against them arising out of their service to and activities on behalf of such corporations.

E. It is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified, and the Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he be so indemnified.

Agreement

In order to induce the Indemnitee to serve or to continue to serve as a director, officer, employee and/or agent of the Company and/or a subsidiary of the Company, the Company has determined and agreed to enter into this agreement with the Indemnitee, and the Company and the Indemnitee agree as follows:

1. Indemnification of Indemnitee. The Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent authorized or permitted by the provisions of the Florida Statute, or by any amendment thereof or other statutory provision authorizing or permitting such indemnification adopted after the date hereof that has the effect of broadening (but not narrowing) the scope of indemnification provided under the Florida Statute as it exists as of the date hereof.

2. Additional Indemnification. In addition to any other indemnification to which the Indemnitee may be entitled pursuant to the Florida Statute, the Company's Articles of Incorporation (the "Articles") or Bylaws (the "Bylaws"), or otherwise, and subject only to the limitation set forth in Section 3 hereof, the Company hereby further agrees to hold harmless and indemnify the Indemnitee against any and all costs and expenses (including trial, appellate and other attorneys' fees), judgments, fines, penalties and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection with any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including an action by or in the right of the Company or a corporation, partnership, joint venture, trust, employee benefit plan or other enterprise or by or in the right of any other person) to which the Indemnitee is, was or at any time becomes a party, or is threatened to be made a party, by reason of the fact that the Indemnitee is, was or at any time becomes a director, officer, employee or agent of the Company, or is or was serving or at any time serves at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. Notwithstanding any other provision of this Agreement, the Company shall pay and reimburse all expenses incurred by Indemnitee in connection with his appearance as a witness or other participation in a proceeding at a time when he is not a named defendant or respondent in the proceeding.

3. Limitations on Additional Indemnification. No indemnification pursuant to Section 2 hereof shall be paid by the Company if a judgment (after exhaustion of all appeals) or other final adjudication determines that the Indemnitee's actions, or omissions to act, were material to the cause of action so adjudicated and constitute:

(a) a violation of criminal law, unless the Indemnitee had reasonable cause to believe his conduct was lawful; or had no reasonable cause to believe his conduct was unlawful;

(b) a transaction from which the Indemnitee received an improper personal benefit within the meaning of Section 607.0850(7)(b) of the Florida Statute;

(c) in the case of a director, a circumstance under which the liability provisions of Section 607.0834 of the Florida Business Corporation Act are applicable; or

(d) willful misconduct or a conscious disregard for the best interests of the Company in a proceeding by or in the right of the Company to procure a judgment in its favor or in a proceeding by or in the right of a shareholder of the Company.

4. Disbursement/Repayment of Expenses. In addition to the prompt payment of any indemnification to which the indemnitee may be entitled, upon the demand of the Indemnitee, the Company shall promptly (and in any event within five (5) business days after written demand therefor) advance to or reimburse the Indemnitee for all reasonable expenses (including, without limitation, trial, appellate and other attorneys' fees, court costs, judgments, fines, penalties, amounts paid in settlement and other payments) that the Indemnitee may incur in responding to, investigating, defending, settling or appealing any claim, action, suit or proceeding for which it reasonably appears that the Indemnitee may be entitled to indemnification from the Company, either pursuant to this Agreement, the Florida Statute, the Articles, the Bylaws or otherwise. The Indemnitee agrees to reimburse the Company for all such expenses in the event, and only to the extent, that it shall be ultimately determined that the Indemnitee is not entitled to be indemnified by the Company for such expenses under the provisions of Section 3 of this Agreement. Such undertaking to reimburse the Company for amounts advanced if it is ultimately determined that the Indemnitee is not entitled to be indemnified by the Company is an unlimited general, unsecured and interest-free obligation of the Indemnitee.

5. Indemnification Procedures.

(a) Payment/Determination of Indemnification. Upon any request from the Indemnitee for indemnification from the Company, whether pursuant to this Agreement, the Florida Statute, the Articles, the Bylaws or otherwise, the Company shall promptly pay the full amount of such requested indemnification. If the Company's Board of Directors (the "Board") reasonably believes that all or any portion of such indemnification pursuant to this Agreement is prohibited by Section 3 hereof, the Company shall in any event promptly pay the amount of such indemnification, if any, that may reasonably then be paid and shall promptly make or cause to be made a determination (the "Determination") of whether the payment of the balance is limited by Section 3 hereof. Such Determination shall be made in the following order or preference:

(i) by the Board of Directors by majority vote or consent of a quorum consisting of directors who are not, at the time of the Determination, named parties to such action, suit or proceeding ("Disinterested Directors"); or

(ii) if such a quorum of Disinterested Directors cannot be obtained by majority vote or consent of a committee duly designated by the Board (in which designation all directors, whether or not Disinterested Directors, may participate) consisting solely of two or more Disinterested Directors; or

(iii) if such a committee cannot be established, by the opinion of independent outside legal counsel employed by the Company; or

(iv) if such legal opinion cannot be obtained, by a majority vote or consent of a quorum of shareholders who are not parties to such action, suit or proceedings or, if not such quorum is obtainable, by a majority vote of such shareholders.

(b) Presumptions and Effect of Certain Proceedings. In making a Determination with respect to entitlement to indemnification hereunder, the person or persons or entity making the Determination shall presume that Indemnitee is entitled to indemnification under this Agreement and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any Determination contrary to that presumption. The termination of any claim, action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, be determinative of or create a presumption that the Indemnitee is not entitled to indemnification or reimbursement of expenses hereunder or otherwise.

(c) Reliance as Safe Harbor. For purposes of any Determination hereunder, the Indemnitee shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company; or with respect to any criminal action or proceeding, to have had reasonable cause to believe his conduct was lawful, or no reasonable cause to believe his conduct was unlawful; if his action is based on information, opinions, reports, or statements, including financial statements and other financial data, prepared or presented by one or more officers or employees of the Company whom the Director reasonably believes to be reliable and competent in such matters presented; legal counsel, public accountants, or other persons as to matters the Director reasonably believes are within the persons' professional or expert competence; or a committee of the Board of Directors of which he is not a member if the Director reasonably believes the committee merits confidence.

(d) Success on Merits or Otherwise. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee has been successful on the merits or otherwise in defense of any action, suit or proceeding described herein, or in defense of any claim, issue or matter therein, he shall be indemnified against all costs and expenses (including trial, appellate and other attorneys' fees) actually and reasonably incurred by him in connection with the investigation, defense, settlement or appeal thereof.

(e) Partial Indemnification or Reimbursement. If the Indemnitee is entitled under any provision of this Agreement to indemnification and/or reimbursement by the Company for some or a portion of the costs and expenses (including trial, appellate and other attorneys' fees) judgments, fines, penalties or amounts paid in settlement by the Indemnitee in connection with the investigation, defense, settlement or appeal of any action specified herein, but not, however, for the total amount thereof, the Company shall nevertheless indemnify and/or reimburse the Indemnitee for the portion thereof to which the Indemnitee is entitled.

(f) Costs. All costs of making any Determination required by this Section 5 shall be borne solely by the Company, including, but not limited to, the costs of legal counsel, proxy solicitations and judicial determinations. The Company shall also be solely responsible for paying (i) all reasonable expenses incurred by the Indemnitee to enforce this Agreement including trial, appellate and other attorneys' fees and costs; and (ii) all costs of defending any suits or proceedings challenging payments to the Indemnitee under this Agreement including trial, appellate and other attorneys' fees and costs.

(g) Timing of the Determination. The Company shall use its best efforts to make the Determination contemplated by this Section 5 promptly, but in all events within the following time periods:

(i) if the Determination is to be made by the Board or a committee thereof, such Determination shall be made not later than 30 days after a written request for a Determination (a "Request") is delivered to the Company by the Indemnitee;

(ii) if the Determination is to be made by the Company's outside independent legal counsel, such Determination shall be made not later than 30 days after a Request is delivered to the Company by the Indemnitee; and

(iii) if the Determination is to be made by the Company's shareholders, such Determination shall be made not later than 90 days after a Request is delivered to the Company by the Indemnitee.

(h) Shareholder Vote on Determination. In connection with each meeting at which a Shareholder Determination will be made, the Company shall solicit proxies that expressly include a proposal to indemnify or reimburse the Indemnitee. Subject to the fiduciary duties of its members under applicable law, the Board will not recommend against indemnification or reimbursement in any proxy statement relating to the proposal to indemnify or reimburse the Indemnitee.

(i) Right of Indemnitee to Appeal an Adverse Determination by Board or Committee. If a Determination is made by the Board or a committee thereof that all or any portion of a request for indemnification pursuant to this Agreement is prohibited by Section 3 hereof, then upon the written request of the Indemnitee, the Company shall cause a new Determination to be made by the Company's shareholders at the next regular or special meeting of shareholders.

(j) Right of Indemnitee to Select Forum for Indemnification. If at any time subsequent to the date of this Agreement, "Continuing Directors" (as defined below) do not constitute a majority of the members of the Board, or there is otherwise a change in control of the Company (as contemplated by Item 403(c) of Securities and Exchange Commission Regulation SK), then upon the request of the Indemnitee, the Company shall cause the Determination required by this Section 5 to be made by special legal counsel designated by the Indemnitee and approved by the Board (which approval shall not be unreasonably withheld), which counsel shall be deemed to satisfy the requirements of Section 5(a)(iii) hereof.

(k) Access by the Indemnitee to Determination. The Company shall afford to the Indemnitee and his representative ample opportunity to present evidence of the facts upon which the Indemnitee relies for indemnification or reimbursement, together with other information relating to any requested Determination. The Company shall also afford the Indemnitee the reasonable opportunity to include such evidence and information in any Company proxy statement relating to a Shareholder Determination.

6. Contribution.

(a) If the indemnification provided in Sections 1 and 2 hereof is unavailable and may not be paid to the Indemnitee for any reason other than those set forth in Section 3 hereof, then in respect of any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with the Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute to the amount of expenses, judgments, fines and settlements paid or payable by the Indemnitee in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Indemnitee on the other hand from the transaction from which such action, suit or proceeding arose, and the relative fault of the Company on the one hand and of the Indemnitee on the other in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations.

(b) The determination as to the amount of the contribution, if any, shall be made by a court of competent jurisdiction upon the application of both the Indemnitee and the Company; or the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding; or outside independent legal counsel of the Company, if a quorum is not obtainable.

7. Notification and Defense of Claim. Promptly after receipt of notice of the commencement of any action, suit or proceeding, the Indemnitee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof, but the omission to so notify the Company will not relieve the Company from any liability that it may have to the Indemnitee otherwise than under this Agreement.

(a) The Company will be entitled to participate therein at its own expense.

(b) Except as otherwise provided below, the Company may assume the defense thereof, with counsel satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense, the Company will not be liable to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below.

(c) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without its written consent.

8. Liability Insurance. So long as the Indemnitee shall continue to serve as a director or officer of the Company, the Company will use its best efforts to purchase and maintain in effect for the benefit of the Indemnitee one or more valid, binding and enforceable policy or policies of D&O Insurance providing coverage within limits determined by the Board in its sole discretion.

9. Disclosure of Payments. Except as expressly required by law, neither party shall disclose any payments under this Agreement unless prior approval of the other party is obtained.

10. Covenant Not to Sue; Limitation of Actions and Release of Claims. No legal action shall be brought and no cause of action shall be asserted by or on behalf of the Company (or any of its subsidiaries) against the Indemnitee after the expiration of 2 years from the date the Indemnitee ceases to serve as either a director, officer, employee or agent of the Company.

11. Continuation of Obligations. All agreements and obligations of the Company contained herein shall continue during the period the Indemnitee is a director, officer, employee or agent of the Company, and shall continue thereafter for so long as the Indemnitee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that the Indemnitee was an officer or director of the Company or serving in any other capacity referred to herein.

12. Enforcement.

(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce the Indemnitee to serve or to continue to serve as a director, officer, employee and/or agent of the Company and/or a subsidiary of the Company, and acknowledges that the Indemnitee is relying upon this Agreement in agreeing to serve or to continue to service in such capacity.

(b) In the event the Indemnitee is required to bring any action to enforce his rights as to collect monies due under this Agreement and is successful in such action, the Company shall reimburse the Indemnitee for all of the Indemnitee's reasonable fees and expenses in bringing and pursuing such action, including reasonable attorneys' fees, court costs and other related expenses.

13. Miscellaneous.

(a) Cooperation and Intent. The Company shall cooperate in good faith with the Indemnitee and use its best efforts to ensure that the Indemnitee is indemnified and/or reimbursed for expenses as described herein to the fullest extent permitted under the provisions of this Agreement.

(b) Nonexclusivity; Subrogation; Entire Agreement. The rights of indemnification and reimbursement provided in this Agreement shall be in addition to any rights by which the Indemnitee may otherwise be entitled by the Florida Statute, the Articles, the Bylaws, a vote of the Company's shareholders, or otherwise.

(c) Effective Date. The provisions of this Agreement shall cover claims, actions, suits, and proceedings whether now pending or hereafter commenced and shall be retroactive to cover acts or omissions or alleged acts or omissions that heretofore have taken place.

(d) Severability; Reformation. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable in whole or in part for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof.

(e) Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed by certified or registered mail.

(f) Amendments or Modification. This Agreement may not be amended or modified in any way except by a written instrument executed by all of the parties.

(g) Governing Law. This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the State of Florida, without given effect to the principles of conflicts of law thereof.

(h) Successors and Assigns. This Agreement shall be binding upon the Indemnitee and the Company, its successors and assigns, and shall inure to the benefit of the Indemnitee, his heirs, personal representatives, successors, and assigns and to the benefit of the Company, its successors and assigns.

(i) Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same agreement.

(j) Headings. The headings of this sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.