INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of January 31,
2006, by and between IPEX, Inc., a Nevada corporation (the "Company"), and X.X.
Xxxxxxxx, Xx., Esq. ("Indemnitee"), a director and/or officer or key executive,
employee or consultant of the Company, or a person serving at the request of the
Company as a director, officer, employee or agent of another enterprise.
RECITALS
WHEREAS, the Indemnitee has served as a director of the Company and in
such capacity has rendered valuable services to the Company;
WHEREAS, effective January 24, 2006, the Indemnitee resigned as a director
of the Company;
WHEREAS, the Company's Articles of Incorporation provide that no director
or officer of the Company shall be personally liable to the Company or any of
its stockholders for damages for breach of fiduciary duty as a director or
officer involving any act or omission of any such director or officer, except
for (i) acts or omissions which involve intentional misconduct, fraud or a
knowing violation of the law, or (ii) the payment of dividends in violation of
Section 78.300 of the Nevada Revised Statutes;
WHEREAS, the Company's Bylaws require the Company to indemnify its
directors and officers against all costs, charges and expenses actually and
reasonably incurred by them including an amount paid to settle an action or
satisfy a judgment inactive criminal or administrative action or proceeding to
which they are made a party by reason of being or having been a director or
officer of the Company, including an action brought by the Company;
WHEREAS, the Company has Directors & Officers and Company Securities
Liability insurance coverage (Policy No.: 35530DO205) with Gotham Insurance
Company, which insurance coverage was effective beginning April 8, 2005 and
expires April 8, 2006 (the "Policy Period");
WHEREAS, the Company has investigated the availability and sufficiency of
liability insurance and applicable existing contractual and statutory
indemnification provisions to provide its directors and officers with adequate
protection against various legal risks and potential liabilities to which such
individuals are subject due to their positions with the Company and has
concluded that such insurance and the existing contractual and statutory
provisions may provide inadequate and unacceptable protection to certain
individuals who have served as its directors and/or officers; and
WHEREAS, the Board of Directors has determined, after due consideration
and investigation of the terms and provisions of this Agreement and the various
other options available to the Company and the Indemnitee in lieu hereof, that
this Agreement is not only reasonable and prudent but necessary to promote and
ensure the best interests of the Company and its stockholders.
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NOW, THEREFORE, in consideration of the services of the Indemnitee, the
Company and the Indemnitee do hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed inquiry, hearing, investigation, action, suit, arbitration or other
alternative dispute resolution mechanism or proceeding, formal or informal,
whether brought in the name of the Company or otherwise and whether of a civil,
criminal or administrative or investigative nature, by reason of the fact that
the Indemnitee is or was a director and/or officer of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another enterprise, whether or not he or she is serving in such capacity at
the time any liability or expense is incurred for which indemnification or
reimbursement is to be provided under this Agreement.
(b) The term "Expenses" includes, without limitation: attorneys'
fees, costs, disbursements and retainers; accounting and witness fees; fees of
experts; travel and deposition costs; transcript costs, filing fees, telephone
charges, postage, copying costs, delivery service fees and other expenses and
obligations of any nature whatsoever paid or incurred in connection with any
investigations, judicial or administrative proceedings and appeals, amounts paid
in settlement by or on behalf of Indemnitee, and any expenses of establishing a
right to indemnification, pursuant to this Agreement or otherwise, including
reasonable compensation for time spent by the Indemnitee in connection with the
investigation, defense or appeal of a Proceeding or action for indemnification
for which he or she is not otherwise compensated by the Company or any third
party. The term "Expenses" does not include the amount of judgments, fines,
penalties or ERISA excise taxes actually levied against the Indemnitee.
2. Indemnification in Third Party Actions. To the extent not covered by
D&O Insurance (defined below), including by reason of the fact that the
Proceeding due to which a claim is made under this Agreement involves facts that
occurred prior to the Policy Period, the Company shall indemnify the Indemnitee
if the Indemnitee is a party to or threatened to be made a party to or is
otherwise involved in any Proceeding (other than a Proceeding by or in the name
of the Company to procure a judgment in its favor), by reason of the fact that
the Indemnitee is or was a director and/or officer of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another enterprise, against all Expenses, judgments, fines, penalties and
ERISA excise taxes actually and reasonably incurred by the Indemnitee in
connection with the defense or settlement of such a Proceeding, to the fullest
extent permitted by applicable corporate law and the Company's Articles of
Incorporation; provided that any settlement of a Proceeding be approved in
writing by the Company.
3. Indemnification in Proceedings by or In the Name of the Company. To the
extent not covered by D&O Insurance, including by reason of the fact that the
Proceeding due to which a claim is made under this Agreement involves facts that
occurred prior to the Policy Period, the Company shall indemnify the Indemnitee
if the Indemnitee is a party to or threatened to be made a party to or is
otherwise involved in any Proceeding by or in the name of the Company to procure
a judgment in its favor by reason of the fact that the Indemnitee was or is a
director and/or officer of the Company, or is or was serving at the request of
the Company as a director, officer, employee or agent of another enterprise,
against all Expenses, judgments, fines penalties and ERISA excise taxes actually
and reasonably incurred by the Indemnitee in connection with the defense or
settlement of such a Proceeding, to the fullest extent permitted by applicable
corporate law and the Company's Articles of Incorporation.
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4. Conclusive Presumption Regarding Standards of Conduct. The Indemnitee
shall be conclusively presumed to have met the relevant standards of conduct, if
any, as defined by applicable corporate law, for indemnification pursuant to
this Agreement, unless a determination is made that the Indemnitee has not met
such standards (i) by the Board of Directors by a majority vote of a quorum
thereof consisting of directors who were not parties to the Proceeding due to
which a claim is made under this Agreement, (ii) by the shareholders of the
Company by majority vote of a quorum thereof consisting of shareholders who are
not parties to the Proceeding due to which a claim is made under this Agreement,
(iii) in a written opinion by independent counsel, selection of whom has been
approved by the Indemnitee in writing, or (iv) by a court of competent
jurisdiction.
5. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of the Agreement, to the extent that the Indemnitee has been
successful in defense of any Proceeding or in defense of any claim, issue or
matter therein, on the merits or otherwise, including the dismissal of a
Proceeding without prejudice or the settlement of a Proceeding without an
admission of liability, to the extent not covered by D&O Insurance (including by
reason of the fact that the Proceeding due to which a claim is made under this
Agreement involves facts that occurred prior to the Policy Period), the
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith to the fullest extent permitted by applicable corporate law.
6. Advances of Expenses. To the extent not covered by D&O Insurance,
including by reason of the fact that the Proceeding due to which a claim is made
under this Agreement involves facts that occurred prior to the Policy Period,
the Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly
by the Company in advance of the final disposition of the Proceeding at the
written request of the Indemnitee to the fullest extent permitted by applicable
corporate law; provided that the Indemnitee shall undertake in writing to repay
any advances if it is ultimately determined that the Indemnitee is not entitled
to indemnification.
7. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion of
the Expenses, judgments, fines, penalties or ERISA excise taxes actually and
reasonably incurred by him or her in the investigation, defense, appeal or
settlement of any Proceeding but not, however, for the total amount of his or
her Expenses, judgments, fines, penalties or ERISA excise taxes, the Company
shall nevertheless indemnify the Indemnitee for the portion of Expenses,
judgments, fines, penalties or ERISA excise taxes to which the Indemnitee is
entitled.
8. Indemnification Procedure; Determination of Right to Indemnification.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the 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 in writing. The omission to so notify the
Company, however, shall not relieve it from any liability which it may have to
the Indemnitee otherwise than under this Agreement.
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(b) If a claim for indemnification or advances under this Agreement
is not paid by the Company within thirty (30) days of receipt of written notice,
the rights provided by this Agreement shall be enforceable by the Indemnitee in
any court of competent jurisdiction. The burden of proving by clear and
convincing evidence that indemnification or advances are not appropriate shall
be on the Company. Neither the failure of the directors or stockholders of the
Company or its independent legal counsel to have made a determination prior to
the commencement of such action that indemnification or advances are proper in
the circumstances because the Indemnitee has met the applicable standard of
conduct, if any, nor an actual determination by the directors or shareholders of
the Company or independent legal counsel that the Indemnitee has not met the
applicable standard of conduct, shall be a defense to the action or create a
presumption for the purpose of an action that the Indemnitee has not met the
applicable standard of conduct.
(c) The Indemnitee's Expenses incurred in connection with any
Proceeding concerning his or her right to indemnification or advances in whole
or part pursuant to this Agreement shall also be indemnified by the Company
regardless of the outcome of such Proceeding.
(d) With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate therein at its own
expense and, except as otherwise provided below, to the extent that it may wish,
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 of a Proceeding, the Company will not be liable to the
Indemnitee for any Expenses subsequently incurred by the Indemnitee in
connection with the defense thereof, other than as provided below. The Company
shall not settle any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent. The
Indemnitee shall have the right to employee his or her counsel in any
Proceeding, but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense of the Proceeding shall be at the
expense of the Indemnitee, unless (i) the employment of counsel by the
Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of the defense of a Proceeding, in
each of which cases the fees and expenses of the Indemnitee's counsel shall be
advances 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 the
Indemnitee has concluded that there may be a conflict of interest between the
Company and the Indemnitee.
9. Limitations on Indemnification. No payments pursuant to this Agreement
shall be made by the Company:
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(a) To indemnify or advance funds to the Indemnitee expenses with
respect to a Proceeding initiated or brought voluntarily by the Indemnitee and
not by way of defense, except with respect to Proceedings brought to establish
or enforce a right to indemnification under this Agreement or any other statute
or law or otherwise as required under applicable corporate law, but such
indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board of Directors finds it to be appropriate;
(b) To indemnify the Indemnitee for any Expenses, judgment, fines,
penalties or ERISA excise taxes sustained in any Proceeding for which payment is
actually made to the Indemnitee under a valid and collectible insurance policy,
except in respect of any excess beyond the amount of payment under such
insurance;
(c) To indemnify the Indemnitee for any Expenses, judgment, fines,
and/or penalties sustained in any Proceeding for an accounting of profits made
from the purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange Act of
1934, the rules and regulations promulgated thereunder and amendments thereto or
similar provisions of any federal, state or local statutory law;
(d) To indemnify the Indemnitee for any Expenses, judgment, fines,
and/or penalties sustained in any Proceeding for acts or omissions which involve
intentional misconduct, fraud or a knowing violation of the law; and
(e) If a court of competent jurisdiction finally determines that any
indemnification hereunder is unlawful.
10. Maintenance of Liability Insurance.
(a) The Company hereby covenants and agrees that, as long as the
Indemnitee continues to serve as a director and/or officer of the Company and
thereafter as long as the Indemnitee may be subject to any possible Proceeding,
the Company, subject to subsection (c), shall promptly obtain and maintain in
full force and effect directors' and officers' liability insurance ("D&O
Insurance") in reasonable amounts from established and reputable insurers.
(b) In all D&O insurance policies, the Indemnitee shall be named as
an insured in such a manner as to provide the Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Company's
directors and/or officers.
(c) Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines, in its
sole discretion, that such insurance is not reasonably available, the premium
costs for such insurance is so limited by exclusions that it provides an
insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company.
11. Indemnification Hereunder Not Exclusive. The indemnification provided
by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Articles of Incorporation, Bylaws, any
agreement, vote of shareholders or disinterested directors, provision of
applicable corporate law, or otherwise, both as to action in his or her official
capacity and as to action in another capacity on behalf of the Company while
holding such office.
12. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of the Indemnitee and his or her heirs, executors,
administrators and assigns, whether or not Indemnitee has ceased to be a
director or officer, and the Company and its successors and assigns.
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13. Severability. Each and every paragraph, sentence, term and provision
hereof is separate and distinct so that if any paragraph, sentence, term or
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of any other paragraph, sentence, term or provision hereof. To
the extent required, any paragraph, sentence, term or provision of this
Agreement shall be modified by a court of competent jurisdiction to preserve its
validity and to provide the Indemnitee with the broadest possible
indemnification permitted under applicable corporate law.
14. Savings Clause. If this Agreement or any paragraph, sentence, term or
provision hereof is invalidated on any ground by any court of competent
jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any
Expenses, judgments, fines, penalties for ERISA excise taxes incurred with
respect to any Proceeding to the full extent permitted by any applicable
paragraph, sentence, term or provision of this Agreement that has not been
invalidated or by any other applicable provision of applicable corporate law.
15. Interpretation; Governing Law. This Agreement shall be construed as a
whole and in accordance with its fair meaning. Headings are for convenience only
and shall not be used in construing meaning. This Agreement shall be governed
and interpreted in accordance with the laws of the State of Nevada.
16. Amendments. No amendment, waiver, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
the party against whom enforcement is sought. The indemnification rights
afforded to the Indemnitee hereby are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Articles of Incorporation,
Bylaws, or by other agreements, including D&O Insurance policies.
17. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.
18. Notices. Any notice required to be given under this Agreement shall be
directed:
If to the Company to: IPEX, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to (which shall not constitute notice):
Xxxx X. Xxxx, Esq.
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
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If to the Indemnitee to: X.X. Xxxxxxxx, Xx., Esq.
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Facsimile:
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or to such other address as either party shall designate in writing.
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IN WITNESS WHEREOF, the parties have executed this Indemnity Agreement as
of the date first written above.
IPEX, INC. INDEMNITEE:
By:
------------------------------- ----------------------------------------
Name: Sothi Thillairajah X.X. Xxxxxxxx, Xx., Esq.
Title: Chief Operating Officer
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