INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into this ___ day of
April, 2001, by and between xXXXXXXXXXX.XXX, INC., a Nevada corporation (the
"Corporation") and _____________________ ("Director").
W I T N E S S E T H:
WHEREAS, __________________ is a member of the Board of Directors of the
Corporation and in such capacity is performing a valuable service for the
Corporation;
WHEREAS, the Corporation has adopted the corporate By-laws and corporate
Articles of Incorporation, both of which provide for the indemnification of the
officers, directors, agents and employees of the Corporation to the maximum
extent authorized by Nevada State Corporation Law (the "State Statute");
WHEREAS, such provisions of the Certificate of Incorporation and of the
By-laws of the Corporation and the State Statute specifically provide that they
are not exclusive, and thereby contemplate that contracts may be entered into
between the Corporation and its Board of Directors with respect to
indemnification of such Directors;
WHEREAS, in order to allow the Corporation to continue to attract and
retain qualified directors such as Director and to induce Director to continue
to serve as a member of the Board of Directors of the Corporation, the
Corporation has determined and agreed to enter into this contract with Director.
NOW, THEREFORE, in consideration of Director's agreement to serve as a
director of the Corporation, the parties hereto agree as follows:
1. Indemnification. The Corporation hereby agrees to hold harmless and
indemnify Director to the full extent authorized or permitted by the provisions
of the State Statute, or by any amendment thereof or other statutory provisions
authorizing or permitting such indemnification which is adopted after the date
hereof.
2. Additional Indemnification. Subject only to the exclusions set forth in
Section 3 hereof, the Corporation hereby further agrees to hold harmless and
indemnify Director:
a. Against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by Director in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in right of the
Corporation) to which Director is, was or at any time becomes a party, or
is threatened to be made a party, by reason of the fact that Director is,
was or at any time becomes a director, officer, employee or agent of the
Corporation, or is or was serving or at any time serves at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise; and
b. Otherwise to the fullest extent as may be provided to Director by
the Corporation under the non-exclusivity provisions of the State Statute.
3. Limitations on Additional Indemnity. No indemnity pursuant to Section 2
hereof shall be paid by the Corporation:
a. Except to the extent that the aggregate of losses to be indemnified
thereunder exceed the sum of $1,000 plus the amount of such losses for
which Director is indemnified either pursuant to Section 1 hereof or
pursuant to any directors and officers liability insurance which may at a
later time be purchased and maintained by the Corporation;
b. In respect to remuneration paid to Director if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
c. On account of any suit in which judgment is rendered against
Director for an accounting of profits made from the purchase or sale by
Director of securities of the Corporation pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto
or similar provisions of any federal, state or local statutory law;
d. On account of Director's conduct which is finally adjudged by a
court of competent jurisdiction to have been knowingly fraudulent,
deliberately dishonest or willful misconduct; or
e. If a final decision by a court of competent jurisdiction shall
determine that such indemnification is not lawful.
4. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue throughout the period during which
Director is a director, officer, employee or agent of the Corporation (or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise) and shall continue thereafter so long as Director shall be subject
to any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative, by reason of the fact that
Director was a director of the Corporation or serving in any other capacity
referred to herein.
5. Notification and Defense of Claim. Promptly after receipt by Director of
notice of the commencement of any action, suit or proceeding, Director will, if
a claim in respect thereof is to be made against the Corporation under this
Agreement, notify the Corporation of the commencement thereof; but the omission
so to notify the Corporation will not relieve it from any liability which it may
have to Director otherwise than under this Agreement. With respect to any such
action, suit or proceeding as to which Director notifies the Corporation of the
commencement thereof:
a. The Corporation will be entitled to participate therein at its own
expense;
b. Except as otherwise provided below, to the extent that it may wish,
the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to Director. Director shall have the right in his own
discretion to employ his own counsel in addition to counsel selected by the
Corporation in such action, suit or proceeding after notice from the
Corporation of its assumption of the defense thereof, with the fees and
expenses of such counsel to be reimbursed to Director by the Corporation.
The Corporation shall not be entitled to assume the defense of any action,
suit or proceeding brought by or on behalf of the Corporation or as to
which Director shall have reasonably concluded that there may be a conflict
of interest between the Corporation and Director in the conduct of the
defense of such action; and
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c. The Corporation shall not be liable to indemnify Director under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Corporation shall not settle any
action or claim in any manner which would impose any penalty or limitation
on Director without Director's written consent. Neither the Corporation nor
Director will unreasonably withhold their consent to any proposed
settlement.
6. Repayment of Expenses. Director agrees that Director will reimburse the
Corporation for all reasonable expenses paid by the Corporation in defending any
civil or criminal action, suit or proceeding against Director in the event and
only to the extent that it shall be ultimately determined that Director is not
entitled to be indemnified by the Corporation for such expenses under the
provisions of the State Statute, the By-laws or Certificate of Incorporation of
the Corporation, this Agreement or otherwise.
7. Reimbursement of Director. In any action, suit, proceeding or claim in
which Director has incurred expenses (whether legal fees or otherwise) for which
he is to be reimbursed by the Corporation pursuant to this Agreement, the
Certificate of Incorporation or the By-laws of the Corporation or the State
Statute, Director shall be entitled to reimbursement for such expenses on a
monthly basis during the existence of such action, suit, proceeding or claim. If
at any time it becomes apparent that Director was not entitled to such payment
of expenses, Director shall within thirty (30) days reimburse the Corporation
for all amounts previously advanced or paid to him.
8. Enforcement.
a. The Corporation expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on the Corporation
hereby in order to induce Director to continue as a director of the
Corporation, and acknowledges that Director is relying upon this Agreement
in continuing such capacity.
b. In the event that Director is required to bring any action to
enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Corporation shall reimburse Director for all
of Director's reasonable fees and expenses in bringing and pursuing such
action.
9. Separability. Each of the provisions of this Agreement is a separate and
distinct agreement independent of the others, so that if any provisions hereof
shall be held to be valid or unenforceable for any reason, such invalidity or
unenforceability shall not effect the validity or enforceability of the other
provisions hereof.
10. Governing Law; Binding Effect; Amendment and Termination.
a. This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Florida.
b. This Agreement shall be binding upon Director and upon the
Corporation, its successors and assigns, and shall inure to the benefit of
Director, his heirs, personal representatives and assigns and to the
benefit of the Corporation, its successors and assigns.
c. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
WITNESSES: xXXXXXXXXXX.XXX, INC.
______________________________ By:____________________________
Its: ____________________________
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