INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated
as of __________, 20__, is made by and between China BAK Battery, Inc., a Nevada
corporation (the “Corporation”) and _________ (the “Indemnitee”).
RECITALS
A. The
Corporation recognizes that competent and experienced persons are increasingly
reluctant to serve or to continue to serve as directors or officers of
corporations unless they are protected by comprehensive liability insurance or
indemnification, or both, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to the fact
that the exposure frequently bears no reasonable relationship to the
compensation of such directors and officers;
B.
The statutes and judicial
decisions regarding the duties of directors and officers are often difficult to
apply, ambiguous or conflicting, and therefore fail to provide such directors
and officers with adequate, reliable knowledge of legal risks to which they are
exposed or information regarding the proper course of action to
take;
C. The
Corporation and Indemnitee recognize that plaintiffs often seek damages in such
large amounts and the costs of litigation may be so enormous (whether or not the
case is meritorious), that the defense and/or settlement of such litigation is
often beyond the personal resources of directors and officers;
D. The
Corporation believes that it is unfair for its directors and officers to assume
the risk of huge judgments and other expenses which may occur in cases in which
the director or officer received no personal profit and in cases where the
director or officer was not culpable;
E. The
Corporation, after reasonable investigation, has determined that the liability
insurance coverage presently available to the Corporation may be inadequate in
certain circumstances to cover all possible exposure for which Indemnitee should
be protected. The Corporation believes that the interests of the
Corporation and its stockholders would best be served by a combination of such
insurance and the indemnification by the Corporation of the directors and
officers of the Corporation;
F. The
Corporation’s ByLaws require the Corporation to indemnify its directors to the
fullest extent permitted by Chapter 78 of the Nevada Revised Statutes (sometimes referred to
herein as the “NRS”), and permits it, if and to the extent authorized by the
Board of Directors, to so indemnify its officers and any other person whom it
has the power to indemnify against liability, reasonable expense or other matter
whatsoever;
G. Section
78.7502 (“Section 78.7502”) of the NRS, under which the Corporation is
organized, empowers the Corporation to indemnify its officers, directors,
employees and agents by agreement and to indemnify persons who serve, at the
request of the Corporation, as the directors, officers, employees or agents of
other corporations or enterprises, and Section 78.751 (“Section 78.751”) of
the NRS expressly provides that the indemnification provided by Section 78.7502
is not exclusive;
H. Section
78.037 of the NRS allows a corporation to include in its articles of
incorporation a provision limiting or eliminating the personal liability of a
director or officer for monetary damages in respect of claims by shareholders
and corporations for breach of certain fiduciary duties, and the Corporation has
so provided in its Articles of Incorporation that each director and officer
shall be exculpated from such liability to the maximum extent permitted by
law;
I. The
Board of Directors has determined that contractual indemnification as set forth
herein is not only reasonable and prudent but also promotes the best interests
of the Corporation and its stockholders;
J. The
Corporation desires and has requested Indemnitee to serve or continue to serve
as a director or officer of the Corporation free from undue concern for
unwarranted claims for damages arising out of or related to such services to the
Corporation; and
K. Indemnitee
is willing to serve, continue to serve or to provide additional service for or
on behalf of the Corporation on the condition that he is furnished the indemnity
provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of the
mutual covenants and agreements set forth below, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as
follows:
Section 1. Generally.
To the fullest extent permitted by the
laws of the State of Nevada:
(a) The
Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that Indemnitee is or was or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of the
Corporation, or while serving as a director or officer of the Corporation, is or
was serving or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent (which, for purposes hereof, shall include
a trustee, partner or manager or similar capacity) of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, or
by reason of any action alleged to have been taken or omitted in such
capacity. For the avoidance of doubt, the foregoing indemnification
obligation includes, without limitation, claims for monetary damages against
Indemnitee in respect of an alleged breach of fiduciary duties, to the fullest
extent permitted under Sections 78.7502 and 78.751 of the NRS as in existence on
the date hereof.
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(b) The
indemnification provided by this Section 1 shall be from and against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection with such action, suit or proceeding and any appeal therefrom, but
shall only be provided if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action, suit or proceeding,
had no reasonable cause to believe Indemnitee’s conduct was
unlawful.
(c) Notwithstanding
the foregoing provisions of this Section 1, in the case of any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
a director, officer, employee or agent of the Corporation, or while serving as a
director or officer of the Corporation, is or was serving or has agreed to serve
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise (a “Derivative Action”), no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation unless, and only to the extent that,
the court in which such action or suit was brought or other court of competent
jurisdiction shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
(d) Except
as to Derivative Actions, the termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that Indemnitee did
not act in good faith and in a manner which Indemnitee reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
Section 2. Successful Defense; Partial
Indemnification. To the extent that Indemnitee has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 hereof or in defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred in connection
therewith. For purposes of this Agreement and without limiting the
foregoing, if any action, suit or proceeding is disposed of, on the merits or
otherwise (including a disposition without prejudice), without (i) the
disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee
was liable to the Corporation, (iii) a plea of guilty or nolo contendere by
Indemnitee, (iv) an adjudication that Indemnitee did not act in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and (v) with respect to any criminal proceeding,
an adjudication that Indemnitee had reasonable cause to believe Indemnitee’s
conduct was unlawful, Indemnitee shall be considered for the purposes hereof to
have been wholly successful with respect thereto.
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If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the expenses (including attorneys’ fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with any action, suit, proceeding or
investigation, or in defense of any claim, issue or matter therein, and any
appeal therefrom but not, however, for the total amount thereof, the Corporation
shall nevertheless indemnify Indemnitee for the portion of such expenses
(including attorneys’ fees), judgments, fines or amounts paid in settlement to
which Indemnitee is entitled.
Section 3. Determination That
Indemnification Is Proper. Any indemnification hereunder shall
(unless otherwise ordered by a court) be made by the Corporation unless a
determination is made that indemnification of such person is not proper in the
circumstances because he or she has not met the applicable standard of conduct
set forth in Section 1(b) hereof. Any such determination shall be made (i) by
the Board of Directors by majority vote of a quorum consisting of directors who
were not parties to the action, suit or proceeding (“disinterested directors”),
(ii) by a majority vote of a committee of disinterested directors
(“disinterested committee”) designated by a majority vote of a quorum consisting
of disinterested directors, (iii) if a majority vote of a quorum consisting
of disinterested directors or if the majority vote of a disinterested committee
so orders, by independent legal counsel in a written opinion, (iv) if a quorum
consisting of disinterested directors cannot be obtained or if a disinterested
committee cannot be designated by a majority vote of a quorum consisting of
disinterested directors, by independent legal counsel in a written opinion, or
(v) by a majority vote of a quorum of the outstanding shares of stock of all
classes entitled to vote on the matter, voting as a single class, which quorum
shall consist of stockholders who are not at that time parties to the action,
suit or proceeding in question (each such person, group of persons, or entity
authorized to make such determination is hereinafter referred to as a “Reviewing
Party”).
Section 4. Advance Payment of Expenses;
Notification and Defense of Claim.
(a) Expenses
(including attorneys’ fees) incurred by Indemnitee in defending a threatened or
pending civil, criminal, administrative or investigative action, suit or
proceeding, or in connection with an enforcement action pursuant to
Section 5(b), shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding within thirty (30) days after
receipt by the Corporation of (i) a statement or statements from Indemnitee
requesting such advance or advances from time to time, and (ii) an undertaking
by or on behalf of Indemnitee to repay such amount or amounts, only if, and to
the extent that, it shall ultimately be determined that Indemnitee is not
entitled to be indemnified by the Corporation as authorized by this Agreement or
otherwise. Such undertaking shall be accepted without reference to
the financial ability of Indemnitee to make such repayment. Advances shall be
unsecured and interest-free.
(b) Promptly
after receipt by Indemnitee of notice of the commencement of any action, suit or
proceeding, Indemnitee shall, if a claim thereof is to be made against the
Corporation hereunder, notify the Corporation of the commencement
thereof. The failure to promptly notify the Corporation of the
commencement of the action, suit or proceeding, or Indemnitee’s request for
indemnification, will not relieve the Corporation from any liability that it may
have to Indemnitee hereunder, except to the extent the Corporation is prejudiced
in its defense of such action, suit or proceeding as a result of such
failure.
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(c) In
the event the Corporation shall be obligated to pay the expenses of Indemnitee
with respect to an action, suit or proceeding, as provided in this Agreement,
the Corporation, if appropriate, shall be entitled to assume the defense of such
action, suit or proceeding, with counsel reasonably acceptable to Indemnitee,
upon the delivery to Indemnitee of written notice of its election to do
so. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Corporation, the Corporation
will not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same action, suit or
proceeding, provided
that (1) Indemnitee shall have the right to employ Indemnitee’s own counsel in
such action, suit or proceeding at Indemnitee’s expense and (2) if (i) the
employment of counsel by Indemnitee has been previously authorized in writing by
the Corporation, (ii) counsel to the Corporation or Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position, or
reasonably believes that a conflict is likely to arise, on any significant issue
between the Corporation and Indemnitee in the conduct of any such defense or
(iii) the Corporation shall not, in fact, have employed counsel to assume the
defense of such action, suit or proceeding, then the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Corporation, except as
otherwise expressly provided by this Agreement. The Corporation shall
not be entitled, without the consent of Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which counsel for
the Corporation or Indemnitee shall have reasonably made the conclusion provided
for in clause (ii) above.
(d) Notwithstanding
any other provision of this Agreement to the contrary, to the extent that
Indemnitee is, by reason of Indemnitee’s corporate status with respect to the
Corporation or any corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee is or was serving or has
agreed to serve at the request of the Corporation, a witness or otherwise
participates in any action, suit or proceeding at a time when Indemnitee is not
a party in the action, suit or proceeding, the Corporation shall reimburse
Indemnitee for all expenses (including attorneys’ fees) actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection therewith,
according to the same procedure stated under Section 5 hereof.
Section 5. Procedure for
Indemnification.
(a) To
obtain indemnification, Indemnitee shall promptly submit to the Corporation a
written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Corporation shall, promptly upon receipt of such
a request for indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
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(b) The
applicable Reviewing Party shall have 60 days following receipt of a request for
indemnification pursuant to Section 5(a) to respond to Indemnitee’s
indemnification request. The right to indemnification as granted by
Section 1 of this Agreement shall be enforceable by Indemnitee in any court of
competent jurisdiction if the Corporation denies such request, in whole or in
part, or, as further provided under Section 5(d), fails to respond within such
60-day period. It shall be a defense to any such action (other than
an action brought to enforce a claim for the advance of costs, charges and
expenses under Section 4 hereof where the required undertaking, if any, has been
received by the Corporation) that Indemnitee has not met the standard of conduct
set forth in Section 1 hereof, but the burden of proving such defense by clear
and convincing evidence shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors or one of its
committees, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct set forth in Section 1 hereof, nor the fact that
there has been an actual determination by the Corporation (including its Board
of Directors or one of its committees, its independent legal counsel, and its
stockholders) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has or
has not met the applicable standard of conduct. The Indemnitee’s
expenses (including attorneys’ fees) incurred in connection with successfully
establishing Indemnitee’s right to indemnification, in whole or in part, in any
such proceeding or otherwise shall also be indemnified by the
Corporation.
(c) The
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement upon submission of a request for indemnification pursuant to this
Section 5, and the Corporation shall have the burden of proof in overcoming that
presumption in reaching a determination contrary to that
presumption. Such presumption shall be used as a basis for a
determination of entitlement to indemnification unless the Corporation overcomes
such presumption by clear and convincing evidence.
(d) If
no applicable Reviewing Party shall have made a determination within 60 days
after receipt by the Corporation of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such 60-day period
may be extended for a reasonable time, not to exceed an additional 30 days, if
the person, persons or entity making the determination with respect to
entitlement of indemnification in good faith requires such additional time for
the obtaining or evaluating of documentation or information relating
thereto.
(e) Indemnitee
shall cooperate with the applicable Reviewing Party, including providing to such
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. The applicable Reviewing Party shall act reasonably
and in good faith in making a determination under this Agreement of the
Indemnitee’s entitlement to indemnification. Any costs or expenses
(including attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the applicable Reviewing Party shall be borne by the
Corporation (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
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Section 6. Insurance and
Subrogation.
(a) The
Corporation may purchase and maintain insurance on behalf of Indemnitee who is
or was or has agreed to serve at the request of the Corporation as a director or
officer 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, employee benefit plan or other enterprise
against any liability asserted against, and incurred by, Indemnitee or on
Indemnitee’s behalf in any such capacity, or arising out of Indemnitee’s status
as such, whether or not the Corporation would have the power to indemnify
Indemnitee against such liability under the provisions of this
Agreement. If the Corporation has such insurance in effect at the
time the Corporation receives from Indemnitee any notice of the commencement of
a proceeding, the Corporation shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures set forth in
the policy. The Corporation shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of
such policy.
(b) In
the event of any payment by the Corporation under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee with respect to any insurance policy, who shall
execute all papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Corporation
to bring suit to enforce such rights in accordance with the terms of such
insurance policy. The Corporation shall pay or reimburse all expenses
actually and reasonably incurred by Indemnitee in connection with such
subrogation.
(c) The
Corporation shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) if and to the extent that Indemnitee has otherwise actually received
such payment under this Agreement or any insurance policy, contract, agreement
or otherwise.
Section 7. Certain
Definitions. For purposes of this Agreement, the following
definitions shall apply:
(a) The
term “action, suit or proceeding” shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense,
settlement, arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative.
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(b) The
term “by reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Corporation, or while serving as a director or officer
of the Corporation, is or was serving or has agreed to serve at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise” shall be broadly construed and shall include, without limitation,
any actual or alleged act or omission to act.
(c) The
term “expenses” shall be broadly and reasonably construed and shall include,
without limitation, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, all attorneys’ fees and related
disbursements, appeal bonds, other out-of-pocket costs and reasonable
compensation for time spent by Indemnitee for which Indemnitee is not otherwise
compensated by the Corporation or any third party, provided that the rate of
compensation and estimated time involved is approved by the Board of Directors,
which approval shall not be unreasonably withheld), actually and reasonably
incurred by Indemnitee in connection with either the investigation, defense or
appeal of a proceeding or establishing or enforcing a right to indemnification
under this Agreement, Section 78.7502 or Section 78.751 of the Nevada Revised
Statutes, or otherwise.
(d) The
term “judgments, fines and amounts paid in settlement” shall be broadly
construed and shall include, without limitation, all direct and indirect
payments of any type or nature whatsoever (including, without limitation, all
penalties and amounts required to be forfeited or reimbursed to the
Corporation), as well as any penalties or excise taxes assessed on a person with
respect to an employee benefit plan.
(e) The
term “Corporation” shall include, without limitation and in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall stand in the same
position under the provisions of this Agreement with respect to the resulting or
surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
(f) The
term “other enterprises” shall include, without limitation, employee benefit
plans.
(g) The
term “serving at the request of the Corporation” shall include, without
limitation, any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.
(h) A
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not opposed to the best
interests of the Corporation” as referred to in this Agreement.
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Section 8. Limitation on
Indemnification. Notwithstanding any other provision herein to
the contrary, the Corporation shall not be obligated pursuant to this
Agreement:
(a) Claims Initiated by
Indemnitee. To indemnify or advance expenses to Indemnitee with respect
to an action, suit or proceeding (or part thereof) initiated by Indemnitee,
except with respect to an action, suit or proceeding brought to establish or
enforce a right to indemnification (which shall be governed by the provisions of
Section 8(b) of this Agreement), unless such action, suit or proceeding (or part
thereof) was authorized or consented to by the Board of Directors of the
Corporation.
(b) Action for
Indemnification. To indemnify Indemnitee for any expenses
incurred by Indemnitee with respect to any action, suit or proceeding instituted
by Indemnitee to enforce or interpret this Agreement, unless Indemnitee is
successful in establishing Indemnitee’s right to indemnification in such action,
suit or proceeding, in whole or in part, or unless and to the extent that the
court in such action, suit or proceeding shall determine that, despite
Indemnitee’s failure to establish his right to indemnification, Indemnitee is
entitled to indemnity for such expenses; provided, however, that nothing in this
Section 8(b) is intended to limit the Corporation’s obligation with respect to
the advancement of expenses to Indemnitee in connection with any such action,
suit or proceeding instituted by Indemnitee to enforce or interpret this
Agreement, as provided in Section 4 hereof.
(c) Section 16
Violations. To indemnify Indemnitee on account of any
proceeding with respect to which final judgment is rendered against Indemnitee
for payment or an accounting of profits arising from the purchase or sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
(d) Non-compete and
Non-disclosure. To indemnify Indemnitee in connection with
proceedings or claims involving the enforcement of non-compete and/or
non-disclosure agreements or the non-compete and/or non-disclosure provisions of
employment, consulting or similar agreements the Indemnitee may be a party to
with the Corporation, any subsidiary of the Corporation or any other applicable
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, if any.
Section 9. Certain Settlement
Provisions. The Corporation shall have no obligation to
indemnify Indemnitee under this Agreement for amounts paid in settlement of any
action, suit or proceeding without the Corporation’s prior written consent,
which shall not be unreasonably withheld. The Corporation shall not
settle any action, suit or proceeding in any manner that would impose any fine
or other obligation on Indemnitee without Indemnitee’s prior written consent,
which shall not be unreasonably withheld.
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Section 10. Savings
Clause. If any provision or provisions of this Agreement shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee as to costs, charges and
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the full extent permitted by any applicable portion
of this Agreement that shall not have been invalidated and to the full extent
permitted by applicable law.
Section 11. Contribution. In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for herein is held by a court of competent
jurisdiction to be unavailable to Indemnitee in whole or in part, it is agreed
that, in such event, the Corporation shall, to the fullest extent permitted by
law, contribute to the payment of Indemnitee’s costs, charges and expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, in an amount that is just and equitable in the
circumstances, taking into account, among other things, contributions by other
directors and officers of the Corporation or others pursuant to indemnification
agreements or otherwise; provided, that, without
limiting the generality of the foregoing, such contribution shall not be
required where such holding by the court is due to (i) the failure of Indemnitee
to meet the standard of conduct set forth in Section 1 hereof, or (ii) any
limitation on indemnification set forth in Section 6(c), 8 or 9
hereof.
Section 12. Form and Delivery of
Communications. Any notice, request or other communication
required or permitted to be given to the parties under this Agreement shall be
in writing and either delivered in person or sent by telecopy, telex, telegram,
overnight mail or courier service, or certified or registered mail, return
receipt requested, postage prepaid, to the parties at the following addresses
(or at such other addresses for a party as shall be specified by like
notice):
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If
to the Corporation:
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China
BAK Battery, Inc.
|
XXX
Xxxxxxxxxx Xxxx, Xx. 0 XXX Xxxxxx
Kuichong
Town, Longgang District
Shenzhen,
518119
People’s
Republic of China
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Attention:
|
____________________________
|
|
Telephone:
|
____________________________
|
|
Facsimile:
|
____________________________
|
|
If
to Indemnitee:
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____________________________
|
Section 13. Subsequent
Legislation. If the Nevada Revised Statutes are amended after
adoption of this Agreement to expand further the indemnification permitted to
directors or officers, then the Corporation shall indemnify Indemnitee to the
fullest extent permitted by the Nevada Revised Statutes, as so
amended.
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Section 14. Nonexclusivity. The
provisions for indemnification and advancement of expenses set forth in this
Agreement shall not be deemed exclusive of any other rights which Indemnitee may
have under any provision of law, the Corporation’s Articles of Incorporation or
ByLaws, in any court in which a proceeding is brought, the vote of the
Corporation’s stockholders or disinterested directors, other agreements or
otherwise, and Indemnitee’s rights hereunder shall continue after Indemnitee has
ceased acting as an agent of the Corporation and shall inure to the benefit of
the heirs, executors and administrators of Indemnitee. However, no
amendment or alteration of the Corporation’s Articles of Incorporation or ByLaws
or any other agreement shall adversely affect the rights provided to Indemnitee
under this Agreement
Section 15. Enforcement. The
Corporation shall be precluded from asserting in any judicial proceeding that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Corporation agrees that its execution of this
Agreement shall constitute a stipulation by which it shall be irrevocably bound
in any court of competent jurisdiction in which a proceeding by Indemnitee for
enforcement of his rights hereunder shall have been commenced, continued or
appealed, that its obligations set forth in this Agreement are unique and
special, and that failure of the Corporation to comply with the provisions of
this Agreement will cause irreparable and irremediable injury to Indemnitee, for
which a remedy at law will be inadequate. As a result, in addition to
any other right or remedy Indemnitee may have at law or in equity with respect
to breach of this Agreement, Indemnitee shall be entitled to injunctive or
mandatory relief directing specific performance by the Corporation of its
obligations under this Agreement.
Section 16. Interpretation of
Agreement. It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification
to Indemnitee to the fullest extent now or hereafter permitted by
law.
Section 17. Entire
Agreement. This Agreement and the documents expressly referred
to herein constitute the entire agreement between the parties hereto with
respect to the matters covered hereby, and any other prior or contemporaneous
oral or written understandings or agreements with respect to the matters covered
hereby are expressly superceded by this Agreement.
Section 18. Modification and
Waiver. 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
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
Section 19. Successors and
Assigns. All of the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the parties hereto and their respective successors, assigns, heirs, executors,
administrators and legal representatives. The Corporation shall require and
cause any direct or indirect successor (whether by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Corporation, by written agreement in form and substance reasonably
satisfactory to Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform if no such succession had taken place.
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Section 20. Service of Process and
Venue. For purposes of any claims or proceedings to enforce
this agreement, the Corporation consents to the jurisdiction and venue of any
federal or state court of competent jurisdiction in the states of Nevada and New
York, and waives and agrees not to raise any defense that any such court is an
inconvenient forum or any similar claim.
Section 21. Supersedes Prior
Agreement. This Agreement supersedes any prior indemnification
agreement between Indemnitee and the Corporation or its
predecessors.
Section 22. Governing
Law. This Agreement shall be governed exclusively by and
construed according to the laws of the State of Nevada, as applied to contracts
between Nevada residents entered into and to be performed entirely within
Nevada. If a court of competent jurisdiction shall make a final
determination that the provisions of the law of any state other than Nevada
govern indemnification by the Corporation of its officers and directors, then
the indemnification provided under this Agreement shall in all instances be
enforceable to the fullest extent permitted under such law, notwithstanding any
provision of this Agreement to the contrary.
Section 23. Employment
Rights. Nothing in this Agreement is intended to create in
Indemnitee any right to employment or continued employment.
Section 24. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and
the same instrument, notwithstanding that both parties are not signatories to
the original or same counterpart.
Section 25. Headings. The
section and subsection headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
[Signature page
follows]
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IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered to be
effective as of the date first above written.
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CHINA
BAK BATTERY, INC.
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By
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Name:
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Title:
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INDEMNITEE:
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By
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Name:
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