ZNOMICS, INC. INDEMNIFICATION AGREEMENT
Exhibit
99.2
THIS
AGREEMENT is entered into, effective as of [Insert
Date] by and between Znomics, Inc., a Nevada corporation (the “Company”), and [Insert
Name] (“Indemnitee”).
WHEREAS,
it is essential to the Company to retain and attract as directors and officers
the most capable persons available;
WHEREAS,
Indemnitee is a director and/or officer of the Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of litigation and
other claims currently being asserted against directors and officers of
corporations;
WHEREAS,
the Articles of Incorporation and Bylaws of the Company require the Company to
indemnify and advance expenses to its directors and officers to the fullest
extent permitted under Chapter 78 of the Nevada Revised Statutes, and the
Indemnitee has been serving and continues to serve as a director and/or officer
of the Company in part in reliance on the Company’s Articles of Incorporation
and Bylaws; and
WHEREAS,
in recognition of Indemnitee’s need for (i) substantial protection against
personal liability based on Indemnitee’s reliance on the aforesaid Articles of
Incorporation and Bylaws, (ii) specific contractual assurance that the
protection promised by the Articles of Incorporation and Bylaws will be
available to Indemnitee (regardless of, among other things, any amendment to or
revocation of the Articles of Incorporation and Bylaws or any change in the
composition of the Company’s Board of Directors or acquisition transaction
relating to the Company) and (iii) an inducement to provide effective
services to the Company as a director and/or officer, the Company wishes to
provide in this Agreement for the indemnification of and the advancing of
expenses to Indemnitee to the fullest extent (whether partial or complete)
permitted under Nevada law and as set forth in this Agreement, and, to the
extent insurance is maintained, to provide for the continued coverage of
Indemnitee under the Company’s directors’ and officers’ liability insurance
policies.
NOW,
THEREFORE, in consideration of the above premises and of Indemnitee continuing
to serve the Company directly or, at its request, with another enterprise, and
intending to be legally bound hereby, the parties agree as follows:
1. Certain
Definitions:
(a) “Board” shall mean the
Board of Directors of the Company.
(b) “Affiliate” shall mean
any corporation or other person or entity that directly, or indirectly through
one or more intermediaries, controls or is controlled by or is under common
control with, the person specified, including, without limitation, with respect
to the Company, any direct or indirect subsidiary of the Company.
(c) A “Change in Control”
shall be deemed to have occurred if (i) any “person” (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”)) (other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, and other than any
person holding shares of the Company on the date that the Company first
registers under the Act or any transferee of such individual if such transferee
is a spouse or lineal descendant of the transferee or a trust for the benefit of
the individual, his or her spouse or lineal descendants), is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the total voting power represented
by the Company’s then outstanding Voting Securities, (ii) during any period
of two consecutive years, individuals who at the beginning of such period
constitute the Board and any new director whose election by the Board or
nomination for election by the Company’s stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority of the Board, (iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other entity, other than a
merger or consolidation that would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (iv) the stockholders of
the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company (in one transaction or a
series of transactions) of all or substantially all of the Company’s
assets.
(d) “Expenses” shall mean
any expense, liability or loss, including attorneys’ fees, judgments, fines,
ERISA excise taxes and penalties, amounts paid or to be paid in settlement, any
interest, assessments or other charges imposed thereon, any federal, state,
local or foreign taxes imposed as a result of the actual or deemed receipt of
any payments under this Agreement and all other costs and obligations, paid or
incurred in connection with investigating, defending, being a witness in,
participating in (including on appeal) or preparing for any of the foregoing in,
any Proceeding relating to any Indemnifiable Event.
(e) “Indemnifiable Event”
shall mean any event or occurrence that takes place either prior to or after the
execution of this Agreement, related to the fact that Indemnitee is or was a
director or officer of the Company or an
Affiliate of the Company, or while a
director or officer is or was serving at the request of the Company or an Affiliate of the Company as a director,
officer, employee, trustee, agent or fiduciary of another foreign or domestic
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise or was a director, officer, employee or agent of a foreign or
domestic corporation that was a predecessor corporation of the Company or of
another enterprise at the request of such predecessor corporation, or related to
anything done or not done by Indemnitee in any such capacity, whether or not the
basis of the Proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent of the Company or an
Affiliate of the Company, as
described above.
(f) “Independent Counsel”
shall mean the person or body appointed in connection with
Section 3.
(g) “Proceeding” shall
mean any threatened, pending or completed action, suit or proceeding or any
alternative dispute resolution mechanism (including an action by or in the right
of the Company or an Affiliate of the Company) or any inquiry, hearing or
investigation, whether formal or informal, whether conducted by the Company or an Affiliate of the Company or any other
party, that Indemnitee in good faith believes might lead to the institution of
any such action, suit or proceeding, whether civil, criminal, administrative,
investigative or other.
(h) “Reviewing Party”
shall mean the person or body appointed in accordance with
Section 3.
(i) “Voting Securities”
shall mean any securities of the Company that vote generally in the election of
directors.
2. Agreement to
Indemnify.
(a) General
Agreement. In the event Indemnitee was, is or becomes a party
to or witness or other participant in, or is threatened to be made a party to or
witness or other participant in, a Proceeding by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify Indemnitee from and
against any and all Expenses to the fullest extent permitted by law, as the same
exists or may hereafter be amended or interpreted (but in the case of any such
amendment or interpretation, only to the extent that such amendment or
interpretation permits the Company to provide broader indemnification rights
than were permitted prior thereto). The parties hereto intend that this
Agreement shall provide for indemnification in excess of that expressly
permitted by statute, including, without limitation, any indemnification
provided by the Company’s Articles of Incorporation, its Bylaws, vote of its
stockholders or disinterested directors or applicable law.
(b) Initiation of
Proceeding. Notwithstanding anything in this Agreement to the
contrary, Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with any Proceeding initiated by Indemnitee against the
Company or any director or officer of the Company unless (i) the Company
has joined in or the Board has consented to the initiation of such Proceeding,
(ii) the Proceeding is one to enforce indemnification rights under
Section 5 or (iii) the Proceeding is instituted after a Change in
Control (other than a Change in Control approved by a majority of the directors
on the Board who were directors immediately prior to such Change in Control) and
Independent Counsel has approved its initiation.
(c) Expense
Advances. All Expenses incurred by or on behalf of Indemnitee
prior to the final disposition of a Proceeding shall be advanced by the Company
to Indemnitee within 30 days after the receipt by the Company of a written
request for such advance unless and until there has been a final determination
by a court of competent jurisdiction that Indemnitee is not entitled to be
indemnified for such Expenses. Notwithstanding the foregoing, to the
extent the Indemnitee has been successful on the merits or otherwise in the
defense of any Proceeding, Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred
by Indemnitee in connection therewith. Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement which shall constitute an undertaking providing that the Indemnitee undertakes to the fullest extent permitted by law to reimburse the advance if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by the Company. No other form of undertaking shall be required other than the execution of this Agreement. Indemnitee’s obligation to reimburse the Company for advances shall be unsecured and no interest shall be charged thereon. This Section 2(c) shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 2(b) or 2(f).
(d) Mandatory
Indemnification. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, Indemnitee
shall be indemnified against all Expenses incurred in connection
therewith.
(e) Partial
Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of
Expenses, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled.
(f) Prohibited
Indemnification. No indemnification pursuant to this Agreement
shall be paid by the Company on account of any Proceeding in which a final judgment is rendered against Indemnitee
or Indemnitee enters into a settlement, in each case (i) for an accounting of
profits made from the purchase or sale by Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the Exchange Act or
similar provisions of any federal, state or local laws; (ii) for which payment
has actually been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess beyond the
amount paid under any insurance policy or other indemnity provision; or (iii)
for which payment is prohibited by law. Notwithstanding anything to the contrary
stated or implied in this Section
2(f), indemnification pursuant to this
Agreement relating to any Proceeding against Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the Exchange Act or
similar provisions of any federal, state or local laws shall not be prohibited
if Indemnitee ultimately establishes in any
Proceeding that no recovery of such profits from Indemnitee is permitted under
Section 16(b) of the Exchange Act or similar provisions of any federal, state or
local laws.
3. Reviewing
Party. Prior to any Change in Control, the Reviewing Party
shall be any appropriate person or body consisting of a member or members of the
Board or any other person or body appointed by the Board who is not a party to
the particular Proceeding with respect to which Indemnitee is seeking
indemnification; provided that if all members of the Board are parties to the
particular Proceeding with respect to which Indemnitee is seeking
indemnification, the Independent Counsel referred to below shall become the
Reviewing Party; after a Change in Control, the Independent Counsel referred to
below shall become the Reviewing Party. With respect to all matters
arising before a Change in Control for which Independent Counsel shall be the
Reviewing Party and all matters arising after a Change in Control, in each case
concerning the rights of
Indemnitee
to indemnity payments and Expense Advances under this Agreement or any other
agreement or under applicable law or the Company’s Articles of Incorporation or
Bylaws now or hereafter in effect relating to indemnification for Indemnifiable
Events, the Company shall seek legal advice only from Independent Counsel
selected by Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld or delayed), and who
has not otherwise performed services for the Company or the Indemnitee (other
than in connection with indemnification matters) within the last five years. The
Independent Counsel shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to
determine Indemnitee’s rights under this Agreement. Such counsel,
among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee should be permitted
to be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the Independent Counsel and to indemnify fully such counsel
against any and all expenses (including attorneys’ fees), claims, liabilities,
loss and damages arising out of or relating to this Agreement or the engagement
of Independent Counsel pursuant hereto.
4. Indemnification Process and
Appeal.
(a) Indemnification
Payment. Indemnitee shall be entitled to indemnification of
Expenses, and shall receive payment thereof, from the Company in accordance with
this Agreement as soon as practicable after Indemnitee has made written demand
on the Company for indemnification, but in no
event later than thirty (30) days after demand, unless the Reviewing Party
has given a written opinion to the Company that Indemnitee is not entitled to
indemnification under applicable law. Indemnitee shall cooperate with
the Reviewing Party making a determination with respect to Indemnitee's
entitlement to indemnification, including providing to the Reviewing Party upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such
determination. In the event the Reviewing Party has failed to make
such determination within thirty (30) days after the Company’s receipt of
Indemnitee’s written demand for indemnification, the requisite determination
that Indemnitee is entitled to indemnification shall be deemed to have been
made.
(b) Suit to Enforce
Rights. Regardless of any action by the Reviewing Party, if
Indemnitee has not received full indemnification within thirty (30)
days after making a demand in accordance with Section 4(a), Indemnitee
shall have the right to enforce its indemnification rights under this Agreement
by commencing litigation in any court in the State of Oregon or the State of
Nevada having subject matter jurisdiction thereof seeking an initial
determination by the court or challenging any determination by the Reviewing
Party or any aspect thereof. The Company hereby consents to service
of process and to appear in any such proceeding. The Company shall be
precluded from asserting in any such proceeding that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement. The remedy provided for in this Section 4 shall be in
addition to any other remedies available to Indemnitee at law or in
equity.
(c) Defense to Indemnification,
Burden of Proof, and Presumptions. It shall be a defense to
any action brought by Indemnitee against the Company to enforce this Agreement
that it is not permissible under applicable law for the Company to indemnify
Indemnitee for the amount claimed. In connection with any such action
or any determination by the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of proving such a
defense or determination shall be on the Company. Neither the failure
of the Reviewing Party or the Company (including its Board, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action by Indemnitee that indemnification of the claimant
is proper under the circumstances because Indemnitee has met the standard of
conduct set forth in applicable law, nor an actual determination by the
Reviewing Party or Company (including its Board, independent legal counsel or
its stockholders) that the Indemnitee had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct. For
purposes of this Agreement, the termination of any claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without court
approval), conviction or upon a plea of nolo contendere or its equivalent, shall
not create a presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law. For purposes of
any determination of good faith under any applicable standard of conduct,
Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is
based on the records or books of account of the Company, including financial
statements, or on information supplied to Indemnitee by the officers of the
Company in the course of their duties, or on the advice of legal counsel for the
Company or the Board or counsel selected by any committee of the Board or on
information or records given or reports made to the Company by an independent
certified public accountant or by an appraiser, investment banker, compensation
consultant, or other expert selected with reasonable care by the Company or the
Board or any committee of the Board. The provisions of the preceding
sentence shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable
standard of conduct. The knowledge and/or actions, or failure to act,
or any director, officer, agent or employee of the Company shall not be imputed
to Indemnitee for purposes of determining the right to indemnification under
this Agreement.
5. Indemnification for Expenses
Incurred in Enforcing Rights. The Company shall indemnify
Indemnitee against any and all Expenses that are incurred by Indemnitee in
connection with any action brought by Indemnitee for
(i) indemnification
or advance payment of Expenses by the Company under this Agreement or any other
agreement or under applicable law or the Company’s Articles of Incorporation or
Bylaws now or hereafter in effect relating to indemnification for Indemnifiable
Events, regardless of whether Indemnitee is ultimately successful in such
action, unless as a part of such action a court of competent jurisdiction over
such action determines that each of the material assertions made by Indemnitee
as a basis for such action was not made in good faith or was frivolous,
and/or
(ii) recovery
under directors’ and officers’ liability insurance policies maintained by the
Company; but only in the event that Indemnitee ultimately is determined to be
entitled to such indemnification or insurance recovery, as the case may
be. In addition, the Company shall, if so requested by Indemnitee,
advance the foregoing Expenses to Indemnitee, subject to and in accordance with
Section 2(c).
6. Notification and Defense of
Proceeding.
(a) Notice. Promptly
after receipt by Indemnitee of notice of the commencement of any Proceeding,
Indemnitee shall, 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 so to notify the Company will not relieve the Company from any
liability that it may have to Indemnitee, except as provided in
Section 6(c).
(b) Defense. With
respect to any Proceeding as to which Indemnitee notifies the Company of the
commencement thereof, the Company will be entitled to participate in the
Proceeding at its own expense and except as otherwise provided below, to the
extent the Company so wishes, it may assume the defense thereof with counsel
reasonably satisfactory to Indemnitee. After notice from the Company
to Indemnitee of its election to assume the defense of any Proceeding, the
Company shall not be liable to Indemnitee under this Agreement or otherwise for
any Expenses subsequently incurred by Indemnitee in connection with the defense
of such Proceeding other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ legal
counsel in such Proceeding, but all Expenses related thereto incurred after
notice from the Company of its assumption of the defense shall be at
Indemnitee’s expense unless: (i) the employment of legal counsel by
Indemnitee has been authorized by the Company, (ii) Indemnitee has
reasonably determined that there may be a conflict of interest between
Indemnitee and the Company in the defense of the Proceeding, (iii) after a
Change in Control, the employment of counsel by Indemnitee has been approved by
the Independent Counsel or (iv) the Company shall not in fact have employed
counsel to assume the defense of such Proceeding, in each of which cases all
Expenses of the Proceeding shall be borne by the Company. The Company shall not
be entitled to assume the defense of any Proceeding brought by or on behalf of
the Company, or as to which Indemnitee shall have made the determination
provided for in (ii) above or under the circumstances provided for in (iii) and
(iv) above.
(c) Settlement of
Claims. The Company shall not be liable to indemnify
Indemnitee under this Agreement or otherwise for any amounts paid in settlement
of any Proceeding effected without the Company’s written consent, such consent
not to be unreasonably withheld; provided, however, that if a Change in Control
has occurred, the Company shall be liable for indemnification of Indemnitee for
amounts paid in settlement if the Independent Counsel has approved the
settlement. The Company shall not settle any Proceeding in any manner that would
impose any penalty or limitation on Indemnitee without Indemnitee’s written
consent. The Company shall not be liable to indemnify the Indemnitee
under this Agreement with regard to any judicial award if the Company was not
given a reasonable and timely opportunity as a
result of Indemnitees’ failure to provide notice, at its expense, to
participate in the defense of such action, and the
lack of such notice materially prejudiced the Company’s ability to participate
in defense of such action. The Company’s liability hereunder
shall not be excused if participation in the Proceeding by the Company was
barred by this Agreement.
7. Establishment of
Trust. In the event of a Change in Control, the Company shall, upon written request by
Indemnitee, create a Trust for the benefit of the Indemnitee and from time to
time upon written request of Indemnitee shall fund the Trust in an amount
sufficient to satisfy any and all Expenses reasonably anticipated at the time of
each such request to be incurred in connection with investigating, preparing
for, participating in, and/or defending any Proceeding relating to an
Indemnifiable Event. The amount or amounts to be deposited in the Trust pursuant
to the foregoing funding obligation shall be determined by the Independent
Counsel. The terms of the Trust shall provide that (i) the Trust
shall not be revoked or the principal thereof invaded without the written
consent of the Indemnitee, (ii) the Trustee shall advance, within thirty
(30) days of a request by the Indemnitee, any and all Expenses to the Indemnitee
(and the Indemnitee hereby agrees to reimburse the Trust under the same
circumstances for which the Indemnitee would be required to reimburse the
Company under Section 2(c) of this Agreement), (iii) the Trust shall
continue to be funded by the Company in accordance with the funding obligation
set forth above, (iv) the Trustee shall promptly pay to the Indemnitee all
amounts for which the Indemnitee shall be entitled to indemnification pursuant
to this Agreement or otherwise no later than
thirty (30) days after notice pursuant to Section 4(a) and
(v) all unexpended funds in the Trust shall revert to the Company upon a
final determination by the Independent Counsel or a court of competent
jurisdiction, as the case may be, that the Indemnitee has been fully indemnified
under the terms of this Agreement. The Trustee shall be chosen by the
Indemnitee. Nothing in this Section 7 shall relieve the Company
of any of its obligations under this Agreement. All income earned on
the assets held in the Trust shall be reported as income by the Company for
federal, state, local and foreign tax purposes. The Company shall pay
all costs of establishing and maintaining the Trust and shall indemnify the
Trustee against any and all expenses (including attorneys’ fees), claims,
liabilities, loss and damages arising out of or relating to this Agreement or
the establishment and maintenance of the Trust.
8. Non-Exclusivity. The
rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Company’s Articles of Incorporation, Bylaws,
applicable law or otherwise; provided, however, that this Agreement shall
supersede any prior indemnification agreement between the Company and the
Indemnitee. To the extent that a change in applicable law (whether by
statute or judicial decision) permits greater indemnification than would be
afforded currently under the Company’s Articles of Incorporation, Bylaws,
applicable law or this Agreement, it is the intent of the parties that
Indemnitee enjoy by this Agreement the greater benefits so afforded by such
change.
9. Liability
Insurance. For the duration of Indemnitee’s service as a
director and/or officer of the Company, and thereafter for so long as Indemnitee
shall be subject to any pending or possible Proceeding by reason of (or arising
in part out of) an Indemnifiable Event, the Company shall use commercially
reasonable efforts (taking into account the scope and amount of coverage
available relative to the cost thereof) to cause to be maintained in effect
policies of directors’ and officers’ liability insurance providing coverage for
directors and/or officers of the Company that is at least substantially
comparable in scope and amount to that provided by the Company’s current
policies of directors’ and officers’ liability
insurance. Notwithstanding the foregoing, the Company shall not be
required to maintain said policies of directors’ and officers’ liability
insurance during any time period in which such insurance is not reasonably
available or if it is determined in good faith by the then directors of the
Company either that: (a) the premium cost of such insurance is
substantially disproportionate to the amount of coverage provided thereunder, or
(b) the protection provided by such insurance is so limited by exclusions,
deductions or otherwise that there is insufficient benefit to warrant the cost
of maintaining such insurance.
The
Company shall provide Indemnitee with a copy of all directors’ and officers’
liability insurance applications, binders, policies, declarations, endorsements
and other related materials, and shall provide Indemnitee with a reasonable
opportunity to review and comment on the same.
10. Amendment of this
Agreement. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
binding unless in the form of a writing signed by the party against whom
enforcement of the waiver is sought, and no such waiver shall operate as a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver. Except as specifically
provided herein, no failure to exercise or any delay in exercising any right or
remedy hereunder shall constitute a waiver thereof.
11. 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 papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.
12. No Duplication of
Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any claim made against Indemnitee to the
extent Indemnitee has otherwise received payment (under any insurance policy,
Bylaw or otherwise) of the amounts otherwise indemnifiable
hereunder.
13. Duration of
Agreement. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is a director,
officer, employee or other agent of the Company (or is or was serving at the
request of the Company as a director, officer, employee or other agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise) and shall continue thereafter so long as Indemnitee shall be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil or criminal, arbitrational, administrative or
investigative, by reason of the fact that Indemnitee was serving in the capacity
referred to herein.
14. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business and/or
assets of the Company), assigns, spouses, heirs and personal and legal
representatives. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all or a substantial part, of the business and/or assets of
the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. The indemnification provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity pertaining to an Indemnifiable
Event even though Indemnitee may have ceased to serve in such capacity at the
time of any Proceeding.
15. Severability. If
any provision (or portion thereof) of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, (a) the
remaining provisions shall remain enforceable to the fullest extent permitted by
law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the
intent of the parties hereto; and (c) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of
this Agreement containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, void or unenforceable.
16. Contribution. To
the fullest extent permissible under applicable law, whether or not the
indemnification provided for in this Agreement is available to Indemnitee for
any reason whatsoever, the Company shall pay all or a portion of the amount that
would otherwise be incurred by Indemnitee for Expenses in connection with any
claim relating to an Indemnifiable Event, as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the
relative fault of the Company (and its directors, officers, employees and
agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
17. Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada applicable to
contracts made and to be performed in such State without giving effect to its
principles of conflicts of laws.
18. Notices. All
notices, demands and other communications required or permitted hereunder shall
be made in writing and shall be deemed to have been duly given if delivered by
hand, against receipt or mailed, postage prepaid, certified or registered mail,
return receipt requested and addressed to the Company at:
2600XX
0xx
Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
and to
Indemnitee at the address set forth below Indemnitee’s signature
hereto. Notice of change of address shall be effective only when
given in accordance with this Section. All notices complying with
this Section shall be deemed to have been received on the date of hand
delivery or on the third business day after mailing.
19. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
*
* * * *
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Indemnification Agreement as of the day specified above.
a Nevada
corporation
By:
_____________________________
Print
Name: ___________________
Title:
________________________
INDEMNITEE,
an
individual
___________________________
[Insert
Name]
Address:
___________________________
___________________________
___________________________
