INDEMNIFICATION AGREEMENT
Exhibit 10.2
This
Indemnification Agreement (the “Agreement”) is entered
into as of June 30, 2021 by and between Panacea Life Sciences
Holdings, Inc., a Nevada corporation f/k/a Exactus, Inc. (the
“Company”), and _______________ (the
“Indemnitee”) and replaces any and all Indemnification
Agreements previously entered into between the
parties.
WHEREAS, competent
and experienced persons are becoming increasingly reluctant to
serve publicly-held corporations as directors, officers, or in
other capacities unless they are provided with adequate protection
through liability insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of
their service to the corporation;
WHEREAS, the board
of directors of the Company (the “Board”) has
determined that the inability to attract and retain such persons is
detrimental to the best interests of the Company’s
shareholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future;
WHEREAS, Title 7,
Chapter 78 of the Nevada Revised Statues (the “NRS”)
authorizes corporations to indemnify their directors, officers,
employees and agents;
WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they will not be so
indemnified;
WHEREAS, the
Indemnitee is willing to serve as a director and/or officer of the
Company, as applicable, on the condition that he be so
indemnified.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and the Indemnitee do
hereby covenant and agree as follows:
1. Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) “Beneficial
Owner” has the meaning given to the term “beneficial
owner” in Rule 13d-3 under the ExchangeAct.
(b) “Claim”
means:
(i) any
threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, arbitrative, investigative or other, and whether
made pursuant to federal, state or other law; or
(ii) any
inquiry, hearing or investigation that the Indemnitee determines
might lead to the institution of any such action, suit, proceeding
or alternative dispute resolution mechanism.
(c) “Disinterested
Director” means a director of the Company who is not and was
not a party to the Claim in respect of which indemnification is
sought by the Indemnitee.
(d) “Exchange
Act” means the Securities Exchange Act of 1934.
(e) “Expenses”
means any and all expenses, including attorneys’ and
experts’ fees, court costs, transcript costs, travel
expenses, duplicating, printing and binding costs, telephone
charges, and all other costs and expenses incurred in connection
with investigating, defending, being a witness in or participating
in (including on appeal), or preparing to defend, be a witness or
participate in, any Claim. Expenses also shall include (i) Expenses
incurred in connection with any appeal resulting from any Claim,
including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal
bond or its equivalent, and (ii) for purposes of Section 5 only,
Expenses incurred by the Indemnitee in connection with the
interpretation, enforcement or defense of the Indemnitee's rights
under this Agreement, by litigation or otherwise. Expenses,
however, shall not include amounts paid in settlement by the
Indemnitee or the amount of judgments or fines against the
Indemnitee. The parties agree that for the purposes of any
advancement of Expenses for which the Indemnitee has made written
demand to the Company in accordance with this Agreement, all
Expenses included in such demand that are certified by affidavit or
declaration of the Indemnitee’s counsel as being reasonable
shall be presumed conclusively to be reasonable.
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(f) “Expense
Advance” means any payment of Expenses advanced to the
Indemnitee by the Company pursuant to Section 4 or Section 5
hereof.
(g) “Indemnifiable
Event” means any event or occurrence, whether occurring
before, on or after the date of this Agreement, related to the fact
that the Indemnitee is or was a director, officer, employee or
agent of the Company or any subsidiary of the Company, or is or was
serving at the request of the Company as a director, officer,
employee, member, manager, trustee or agent of any other
corporation, limited liability company, partnership, joint venture,
trust or other entity or enterprise (collectively with the Company,
“Enterprise”) or by reason of an action or inaction by
the Indemnitee in any such capacity (whether or not serving in such
capacity at the time any the Loss is incurred for which
indemnification can be provided under this Agreement).
(h) “Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently
performs, nor in the past five years has performed, services for
either: (i) the Company or the Indemnitee (other than in connection
with matters concerning the Indemnitee under this Agreement or of
other indemnitees under similar agreements) or (ii) any other party
to the Claim giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “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
the Indemnitee in an action to determine the Indemnitee’s
rights under this Agreement.
(i) “Losses”
means any and all Expenses, damages, losses, liabilities,
judgments, fines, penalties (whether civil, criminal or other),
ERISA excise taxes, amounts paid or payable in settlement,
including any interest, assessments, 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 charges paid or
payable in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing
to defend, be a witness or participate in, any Claim.
(j) “Nevada
Court” shall have the meaning ascribed to it in Section 9(e)
below.
(k) “Person”
means any individual, corporation, firm, partnership, joint
venture, limited liability company, estate, trust, business
association, organization, governmental entity or other entity and
includes the meaning set forth in Sections 13(d) and 14(d) of the
Exchange Act.
(l) “Standard
of Conduct Determination” shall have the meaning ascribed to
it in Section 9(b) below.
2. Agreement
to Serve. The Indemnitee agrees
to serve as a director and/or officer of the Company, as
applicable, for so long as the Indemnitee is duly elected or
appointed or until the Indemnitee tenders her resignation. This
Agreement shall not be deemed an employment agreement between the
Company (or any of its subsidiaries or Enterprise) and the
Indemnitee. This Agreement shall continue in force after the
Indemnitee has ceased to serve as an officer of the Company or, at
the request of the Company, of any of its subsidiaries or
Enterprise, as provided in Section 12 hereof.
3. Indemnification.
Subject to Section 9 and Section 10 of this Agreement, the Company
shall indemnify the Indemnitee, to the fullest extent permitted by
the laws of the State of Nevada in effect on the date hereof, or as
such laws may from time to time hereafter be amended to increase
the scope of such permitted indemnification, against any and all
Losses if the Indemnitee was or is or becomes a party to or
participant in, or is threatened to be made a party to or
participant in, any Claim by reason of or arising in part out of an
Indemnifiable Event, including, without limitation, Claims brought
by or in the right of the Company, Claims brought by third parties,
and Claims in which the Indemnitee is solely a witness. The power
to indemnify under this Agreement is subject to the limitations
specified in NRS 78.7502 and NRS 78.571 including NRS
78.751(3)(a).
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4. Advancement
of Expenses.
The
Indemnitee shall have the right to advancement by the Company,
prior to the final disposition of any Claim by final adjudication
to which there are no further rights of appeal, of any and all
Expenses actually and reasonably paid or incurred by the Indemnitee
in connection with any Claim arising out of an Indemnifiable Event.
The Indemnitee’s right to such advancement is not subject to
the satisfaction of any standard of conduct. Without limiting the
generality or effect of the foregoing, within 20 days after any
request by the Indemnitee, the Company shall, in accordance with
such request, (a) pay such Expenses on behalf of the Indemnitee,
(b) advance to the Indemnitee funds in an amount sufficient to pay
such Expenses, or (c) reimburse the Indemnitee for such Expenses.
If requested by a law firm or other professional representing the
Indemnitee, the Company shall pay such firm(s) a reasonable
retainer. In connection with any request for Expense Advances, the
Indemnitee shall not be required to provide any documentation or
information to the extent that the provision thereof would
undermine or otherwise jeopardize the attorney-client privilege. In
connection with any request for Expense Advances, the Indemnitee
shall execute and deliver to the Company an undertaking (which
shall be accepted without reference to the Indemnitee’s
ability to repay the Expense Advances) to repay any amounts paid,
advanced, or reimbursed by the Company for such Expenses to the
extent that it is ultimately determined by a Nevada Court,
following the final disposition of such Claim, that the Indemnitee
is not entitled to indemnification hereunder. The
Indemnitee’s obligation to reimburse the Company for Expense
Advances shall be unsecured and no interest shall be charged
thereon.
5. Indemnification
for Expenses in Enforcing Rights. To the fullest extent allowable under applicable
law, the Company shall also indemnify against, and, if requested by
the Indemnitee, shall advance to the Indemnitee subject to and in
accordance with Section 4, any Expenses actually and reasonably
paid or incurred by the Indemnitee in connection with any action or
proceeding by the Indemnitee for (a) indemnification or
reimbursement or advance payment of Expenses by the Company under
any provision of this Agreement, or under any other agreement or
provision of the Articles of Incorporation or Bylaws now or
hereafter in effect relating to Claims relating to Indemnifiable
Events, and/or (b) recovery under any directors’ and
officers’ liability insurance policies maintained by the
Company regardless of whether the Indemnitee ultimately is
determined to be entitled to such indemnification or insurance
recovery, as the case may be. However, in the event that the
Indemnitee is ultimately determined not to be entitled to such
indemnification or insurance recovery, as the case may be, then all
amounts advanced under this Section 5 shall be repaid. The
Indemnitee shall be required to reimburse the Company in the event
that a final judicial determination is made that such action
brought by the Indemnitee was frivolous or not made in good
faith.
6. Partial
Indemnity. If the Indemnitee is
entitled under any provision of this Agreement to indemnification
by the Company for a portion of any Losses in respect of a Claim
related to an Indemnifiable Event but not for the total amount
thereof, the Company shall nevertheless indemnify the Indemnitee
for the portion thereof to which the Indemnitee is
entitled.
7. Notification
and Defense of Claims.
(a) Notification
of Claims. The Indemnitee shall
notify the Company in writing as soon as practicable of any Claim
which could relate to an Indemnifiable Event or for which the
Indemnitee could seek Expense Advances, including a brief
description (based upon information then available to the
Indemnitee) of the nature of, and the facts underlying, such Claim.
The failure by the Indemnitee to timely notify the Company
hereunder shall not relieve the Company from any liability
hereunder except to the extent that the Company has been damaged by
such delay. The Company shall not be liable to indemnify the
Indemnitee under this Agreement with respect to any judicial award
in a Claim related to an Indemnifiable Event if the Company was not
given a reasonable and timely opportunity to participate at its
expense in the defense of such action. If at the time of the
receipt of such notice, the Company has directors' and
officers’ liability insurance in effect under which coverage
for Claims related to Indemnifiable Events is potentially
available, the Company shall give prompt written notice to the
applicable insurers in accordance with the procedures set forth in
the applicable policies.
(b) Defense
of Claims. The Company shall be
entitled to participate in the defense of any Claim relating to an
Indemnifiable Event 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 the
Indemnitee. After notice from the Company to the Indemnitee of its
election to assume the defense of any such Claim, the Company shall
not be liable to the Indemnitee under this Agreement or otherwise
for any Expenses subsequently directly incurred by the Indemnitee
in connection with the Indemnitee’s defense of such Claim
other than reasonable costs of investigation or as otherwise
provided below. The Indemnitee shall have the right to employ its
own legal counsel in such Claim, but all Expenses related to such
counsel incurred after notice from the Company of its assumption of
the defense shall be at the Indemnitee’s own expense;
provided,
however,
that if (i) the Indemnitee’s employment of its own legal
counsel has been authorized by the Company, (ii) the
Company’s counsel has reasonably determined that there may be
a conflict of interest between the Indemnitee and the Company in
the defense of such Claim, (iii) after a Change in Control, the
Indemnitee’s employment of its own counsel has been approved
by the Independent Counsel or (iv) the Company shall not in fact
have employed counsel to assume the defense of such Claim, then the
Indemnitee shall be entitled to retain its own separate counsel
(but not more than one law firm plus, if applicable, local counsel
in respect of any such Claim) and all Expenses related to such
separate counsel shall be borne by the Company.
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8. Procedure
upon Application for Indemnification. In order to obtain indemnification pursuant to
this Agreement, the Indemnitee shall submit to the Company a
written request therefor, including in such request such
documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to
what extent the Indemnitee is entitled to indemnification following
the final disposition of the Claim, provided that documentation and
information need not be so provided to the extent that the
provision thereof would undermine or otherwise jeopardize
attorney-client privilege. Indemnification shall be made insofar as
the Company determines the Indemnitee is entitled to
indemnification in accordance with Section 9
below.
9. Determination
of Right to Indemnification.
(a) Mandatory
Indemnification; Indemnification as a Witness.
(i) To
the extent that the Indemnitee shall have been successful on the
merits or otherwise in defense of any Claim relating to an
Indemnifiable Event or any portion thereof or in defense of any
issue or matter therein, including without limitation dismissal
without prejudice, the Indemnitee shall be indemnified against all
Losses relating to such Claim in accordance with Section 3 to the
fullest extent allowable by law, and no Standard of Conduct
Determination (as defined in Section 9(b)) shall be
required.
(ii) To
the extent that the Indemnitee’s involvement in a Claim
relating to an Indemnifiable Event is to prepare to serve and serve
as a witness, and not as a party, the Indemnitee shall be
indemnified against all Losses incurred in connection therewith to
the fullest extent allowable by law and no Standard of Conduct
Determination (as defined in Section 9(b)) shall be
required.
(b) Standard
of Conduct. To the extent that
the provisions of Section 9(a) are inapplicable to a Claim related
to an Indemnifiable Event that shall have been finally disposed of,
any determination of whether the Indemnitee has satisfied any
applicable standard of conduct under Nevada law that is a legally
required condition to indemnification of the Indemnitee hereunder
against Losses relating to such Claim and any determination that
Expense Advances must be repaid to the Company (a “Standard
of Conduct Determination”) shall be made as
follows:
(i) (A)
by a majority vote of the Disinterested Directors who comprised a
quorum, or (B) by Independent Counsel in a written opinion
addressed to the Board, a copy of which shall be delivered to the
Indemnitee.
(ii) The
Company shall indemnify and hold harmless the Indemnitee against
and, if requested by the Indemnitee, shall reimburse the Indemnitee
for, or advance to the Indemnitee, within 20 days of such request,
any and all Expenses incurred by the Indemnitee in cooperating with
the person or persons making such Standard of Conduct
Determination.
(c) Making
the Standard of Conduct Determination. The Company shall use its reasonable best
efforts to cause any Standard of Conduct Determination required
under Section 9(b) to be made as promptly as practicable. If the
person or persons designated to make the Standard of Conduct
Determination Section 9(b) shall not have made a determination
within 30 days after the later of (A) receipt by the Company of a
written request from the Indemnitee for indemnification pursuant to
Section 8 (the date of such receipt being the “Notification
Date”) and (B) the selection of an Independent Counsel, if
such determination is to be made by Independent Counsel, then the
Indemnitee shall be deemed to have satisfied the applicable
standard of conduct; provided that such 30-day period may be
extended for a reasonable time, not to exceed an additional 30 days
if the person or persons making such determination in good faith
requires such additional time to obtain or evaluate information
relating thereto. Notwithstanding anything in this Agreement to the
contrary, no determination as to entitlement of the Indemnitee to
indemnification under this Agreement shall be required to be made
prior to the final disposition of any Claim. For avoidance of
doubt, this does not affect the Indemnitee’s right to Expense
Advances under Section 4.
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(d) Payment
of Indemnification. If, in
regard to any Losses:
(i) the
Indemnitee shall be entitled to indemnification pursuant to Section
9(a);
(ii) no
Standard Conduct Determination is legally required as a condition
to indemnification of the Indemnitee hereunder; or
(iii) the
Indemnitee has been determined or deemed pursuant to Section 9(b)
or Section 9(c) have satisfied the Standard of Conduct
Determination,
then
the Company shall pay to the Indemnitee, within five days after the
later of (A) the Notification Date or (B) the earliest date on
which the applicable criterion specified in clause (i), (ii) or
(iii) is satisfied, an amount equal to such Losses.
(e) Selection
of Independent Counsel for Standard of Conduct
Determination. If a Standard of
Conduct Determination is to be made by Independent Counsel pursuant
to Section 9(b)(i)(C), the Independent Counsel shall be selected by
the Board of Directors, and the Company shall give written notice
to the Indemnitee advising her of the identity of the Independent
Counsel so selected. If a Standard of Conduct Determination is to
be made by Independent Counsel pursuant to Section 9(b)(ii)(B), the
Independent Counsel shall be selected by the Indemnitee, and the
Indemnitee shall give written notice to the Company advising it of
the identity of the Independent Counsel so selected. In either
case, the Indemnitee or the Company, as applicable, may, within
five days after receiving written notice of selection from the
other, deliver to the other a written objection to such
selection; provided,
however,
that such objection may be asserted only on the ground that the
Independent Counsel so selected does not satisfy the criteria set
forth in the definition of “Independent Counsel” in
Section 1(i), and the objection shall set forth with particularity
the factual basis of such assertion. Absent a proper and timely
objection, the person or firm so selected shall act as Independent
Counsel. If such written objection is properly and timely made and
substantiated, (i) the Independent Counsel so selected may not
serve as Independent Counsel unless and until such objection is
withdrawn or a court has determined that such objection is without
merit; and (ii) the non-objecting party may, at its option, select
an alternative Independent Counsel and give written notice to the
other party advising such other party of the identity of the
alternative Independent Counsel so selected, in which case the
provisions of the two immediately preceding sentences, the
introductory clause of this sentence and numbered clause (i) of
this sentence shall apply to such subsequent selection and notice.
If applicable, the provisions of clause (ii) of the immediately
preceding sentence shall apply to successive alternative
selections. If no Independent Counsel that is permitted under the
foregoing provisions of this Section 9(e) to make the Standard of
Conduct Determination shall have been selected within 20 days after
the Company gives its initial notice pursuant to the first sentence
of this Section 9(e) or the Indemnitee gives its initial notice
pursuant to the second sentence of this Section 9(e) as the case
may be, either the Company or the Indemnitee may petition the court
of competent jurisdiction of the State of Nevada (“Nevada
Court”) to resolve any objection which shall have been made
by the Company or the Indemnitee to the other’s selection of
Independent Counsel and/or to appoint as Independent Counsel a
person to be selected by the Court or such other person as the
Court shall designate, and the person or firm with respect to whom
all objections are so resolved or the person or firm so appointed
will act as Independent Counsel. In all events, the Company shall
pay all of the reasonable fees and expenses of the Independent
Counsel incurred in connection with the Independent Counsel’s
determination pursuant to Section 9(b).
(f) Presumptions
and Defenses.
(i) The
Indemnitee’s
Entitlement to Indemnification.
In making any Standard of Conduct Determination, the person or
persons making such determination shall presume that the Indemnitee
has satisfied the applicable standard of conduct and is entitled to
indemnification, and the Company shall have the burden of proof to
overcome that presumption and establish that the Indemnitee is not
so entitled. Any Standard of Conduct Determination that is adverse
to the Indemnitee may be challenged by the Indemnitee in the
appropriate court of the State of Nevada. No determination by the
Company (including by its directors or any Independent Counsel)
that the Indemnitee has not satisfied any applicable standard of
conduct may be used as a defense to any legal proceedings brought
by the Indemnitee to secure indemnification or reimbursement or
advance payment of Expenses by the Company hereunder or create a
presumption that the Indemnitee has not met any applicable standard
of conduct.
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(ii) Reliance
as a Safe Harbor. For purposes
of this Agreement, and without creating any presumption as to a
lack of good faith if the following circumstances do not exist, the
Indemnitee shall be deemed to have acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
best interests of the Company if the Indemnitee’s actions or
omissions to act are taken in good faith reliance upon the records
of the Company, including its financial statements, or upon
information, opinions, reports or statements furnished to the
Indemnitee by the officers or employees of the Company or any of
its subsidiaries in the course of their duties, or by committees of
the Board or by any other Person (including legal counsel,
accountants and financial advisors) as to matters the Indemnitee
reasonably believes are within such other Person’s
professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company. In addition, the
knowledge and/or actions, or failures to act, of any director,
officer, agent or employee of the Company shall not be imputed to
the Indemnitee for purposes of determining the right to indemnity
hereunder.
(iii) No
Other Presumptions. For
purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere or its
equivalent, will not create a presumption that the Indemnitee did
not meet any applicable standard of conduct or have any particular
belief, or that indemnification hereunder is otherwise not
permitted.
(iv) Defense
to Indemnification and Burden of Proof. It shall be a defense to any action brought by
the Indemnitee against the Company to enforce this Agreement (other
than an action brought to enforce a claim for Losses incurred in
defending against a Claim related to an Indemnifiable Event in
advance of its final disposition) that it is not permissible under
applicable law for the Company to indemnify the Indemnitee for the
amount claimed. In connection with any such action or any related
Standard of Conduct Determination, the burden of proving such a
defense or that the the Indemnitee did not satisfy the applicable
standard of conduct shall be on the Company.
(v) Resolution
of Claims. The Company
acknowledges that a settlement or other disposition short of final
judgment may be successful on the merits or otherwise for purposes
of Section 9(a)(i) if it permits a party to avoid expense, delay,
distraction, disruption and uncertainty. In the event that any
Claim relating to an Indemnifiable Event to which the Indemnitee is
a party is resolved in any manner other than by adverse judgment
against the Indemnitee (including, without limitation, settlement
of such action, claim or proceeding with our without payment of
money or other consideration) it shall be presumed that the
Indemnitee has been successful on the merits or otherwise for
purposes of Section 9(a)(i). The Company shall have the burden of
proof to overcome this presumption.
10. Exclusions
from Indemnification.
Notwithstanding anything in this Agreement to the contrary, the
Company shall not be obligated to:
(a) indemnify
or advance funds to the Indemnitee for Expenses or Losses with
respect to proceedings initiated by the Indemnitee, including any
proceedings against the Company or its directors, officers,
employees or other indemnitees and not by way of defense,
except:
(i) proceedings
referenced in Section 5 above (unless a court of competent
jurisdiction determines that each of the material assertions made
by the Indemnitee in such proceeding was not made in good faith or
was frivolous); or
(ii) where
the Company has joined in or the Board has consented to the
initiation of such proceedings.
(b) indemnify
the Indemnitee if a final decision by a court of competent
jurisdiction determines that such indemnification is prohibited by
applicable law.
(c) indemnify
the Indemnitee for the disgorgement of profits arising from the
purchase or sale by the Indemnitee of securities of the Company in
violation of Section 16(b) of the Exchange Act, or any similar
successor statute.
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(d) indemnify
or advance funds to the Indemnitee for the Indemnitee’s
reimbursement to the Company of any bonus or other incentive-based
or equity-based compensation previously received by the Indemnitee
or payment of any profits realized by the Indemnitee from the sale
of securities of the Company, as required in each case under the
Exchange Act (including any such reimbursements under Section 304
of the Xxxxxxxx-Xxxxx Act of 2002 in connection with an accounting
restatement of the Company or the payment to the Company of profits
arising from the purchase or sale by the Indemnitee of securities
in violation of Section 306 of the Xxxxxxxx-Xxxxx
Act).
11. Settlement
of Claims. The Company shall
not be liable to the Indemnitee under this Agreement for any
amounts paid in settlement of any threatened or pending Claim
related to an Indemnifiable Event effected without the
Company’s prior written consent, which shall not be
unreasonably withheld. The Company shall not settle any Claim
related to an Indemnifiable Event in any manner that would impose
any Losses on the Indemnitee or subject the Indemnitee to any
equitable relief without the Indemnitee’s prior written
consent.
12. Duration.
All agreements and obligations of the Company contained herein
shall continue during the period that the Indemnitee is a director
or officer of the Company (or is serving at the request of the
Company as a director, officer, employee, or agent of another
Enterprise) and shall continue thereafter (i) so long as the
Indemnitee may be subject to any possible Claim relating to an
Indemnifiable Event (including any rights of appeal thereto) and
(ii) throughout the pendency of any proceeding (including any
rights of appeal thereto) commenced by the Indemnitee to enforce or
interpret his or her rights under this Agreement, even if, in
either case, he or she may have ceased to serve in such capacity at
the time of any such Claim or proceeding.
13. Non-Exclusivity.
The rights of the Indemnitee hereunder will be in addition to any
other rights the Indemnitee may have at any time be entitled under
applicable law, the Articles of Incorporation, the Bylaws, any
other contract or otherwise (collectively, “Other Indemnity
Provisions”); provided,
however,
that (a) to the extent that the Indemnitee otherwise would have any
greater right to indemnification under any Other Indemnity
Provision, the Indemnitee will be deemed to have such greater right
hereunder and (b) to the extent that any change is made to any
Other Indemnity Provision which permits any greater right to
indemnification than that provided under this Agreement as of the
date hereof, the Indemnitee will be deemed to have such greater
right hereunder.
14. Liability
Insurance. For the duration of
the Indemnitee’s service as an officer of the Company, and
thereafter for so long as the Indemnitee shall be subject to any
pending Claim relating to 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
obtain or continue to maintain in effect policies of
directors’ and officers’ liability insurance which
shall include “Side A” coverage. In all policies of
directors’ and officers’ liability insurance maintained
by the Company, the Indemnitee shall be named as an insured in such
a manner as to provide the Indemnitee the same rights and benefits
as are provided to the most favorably insured of the
Company’s directors, if the Indemnitee is a director, or of
the Company’s officers, if the Indemnitee is an officer (and
not a director) by such policy. Upon request, the Company will
provide to the Indemnitee copies of all directors’ and
officers’ liability insurance applications, binders,
policies, declarations, endorsements and other related
materials.
15. No
Duplication of Payments. The
Company shall not be liable under this Agreement to make any
payment to the Indemnitee in respect of any Losses to the extent
the Indemnitee has otherwise received payment under any insurance
policy, the Certificate of Incorporation and Bylaws, Other
Indemnity Provisions or otherwise of the amounts otherwise
indemnifiable by the Company hereunder.
16. Subrogation.
In the event of payment to the Indemnitee under this Agreement, the
Company shall be subrogated to the extent of such payment to all of
the rights of recovery of the Indemnitee. The Indemnitee 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.
17. Amendments.
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.
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18. 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 substances satisfactory to the 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.
19. Severability.
The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any portion thereof)
are held by a court of competent jurisdiction to be invalid,
illegal, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted
by law. Upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to
the greatest extent possible.
20. Notices.
All notices, offers, acceptance and any other acts under this
Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by
Federal Express or similar overnight next business day delivery, or
by email delivery followed by overnight next business day delivery,
as follows:
To the
Company:
0000 Xxxxx
Xxxxxxxxxx Xxxx, X00-000
Xxxxxxxxx Xxxxxxx,
XX 00000
______________________
Attn:
________________________
Email:
_______________________
With a Copy
to:
Xxxxx Xxxxxx Xxxxxx
Xxxxx & Xxxxx, P.A.
0000
XXX Xxxxxxxxx, Xxxxx 000
Xxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx
X. Xxxxxx, Esq.
Email:
xxxxxxx@xxxxxxxxxxx.xxx
To the
Indemnitee:
To the address set forth on the signature page
hereto.
or to
such other address as any of them, by notice to the other may
designate from time to time. Time shall be counted from the date of
transmission.
21. Governing
Law and Exclusive
Jurisdiction . 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. The Company and the Indemnitee hereby
irrevocably and unconditionally: (a) agree that any action or
proceeding arising out of or in connection with this Agreement
shall be brought only in the state or federal courts located in the
Xxxxx County Nevada and not in any other state or federal court in
the United States, (b) consent to submit to the exclusive
jurisdiction of the such courts for purposes of any action or
proceeding arising out of or in connection with this
Agreement
22. Headings.
The headings of the sections and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute
part of this Agreement or to affect the construction or
interpretation thereof.
23. 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.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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[_____________________]
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By: _____________________
_____________________
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INDEMNITEE
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_____________________
_____________________
Address: __________________________
__________________________
__________________________
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