INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered into
effective as of [see schedule], by and between RVISION, INC., a Nevada
corporation (the "Corporation"), and [see schedule] ("Indemnitee"), based on the
following:
Premises
A. The Revised and Restated Articles of Incorporation of the
Corporation (the "Articles") and the Bylaws (the "Bylaws") provide for
indemnification of the Corporation's directors and officers to the fullest
extent permitted by any applicable and controlling Nevada law, statute, rule,
decision, or finding (collectively, "Nevada Law") and contemplate that contracts
and other arrangements may be entered into respecting indemnification of
officers and directors.
B. The parties recognize the difficulty in obtaining liability
insurance for the Corporation's directors, officers, employees, stockholders,
controlling persons, agents, and fiduciaries, the significant increases in the
cost of such insurance, and the general reductions in the coverage of such
insurance. Furthermore, the parties further recognize the substantial increase
in corporate litigation in general, subjecting directors, officers, employees,
controlling persons, stockholders, agents, and fiduciaries to expensive
litigation risks at the same time as the availability and coverage of liability
insurance have been severely limited.
C. Indemnitee does not regard the current protection available under
the Articles, Bylaws, and insurance as adequate under the present circumstances,
and Indemnitee and other directors, officers, employees, stockholders,
controlling persons, agents, and fiduciaries of the Corporation may not be
willing to serve in such capacities without additional protection. Moreover, the
Corporation (i) desires to attract and retain the involvement of
highly-qualified persons, such as Indemnitee, to serve the Corporation and, in
part, in order to induce Indemnitee to be involved with the Corporation, (ii)
wishes to provide for the indemnification and advancing of expenses to
Indemnitee to the maximum extent permitted by law, and (iii) wishes to assure
Indemnitee that there will be increased certainty of adequate protection in the
future.
D. In addition to any insurance purchased by the Corporation on behalf
of Indemnitee, it is reasonable, prudent, and necessary for the Corporation to
obligate itself contractually to indemnify Indemnitee so that he may remain free
from undue concern that he will not be adequately protected both during his
service as an executive officer and a director of the Corporation and following
any termination of such service.
E. This Agreement is a supplement to and in furtherance of the Articles
and Bylaws and shall not be deemed a substitute therefor or to abrogate any
rights of Indemnitee thereunder.
F. The directors of the Corporation have duly approved this Agreement
and the indemnification provided herein with the express recognition that the
indemnification arrangements provided herein exceed that which the Corporation
would be required to provide pursuant to Nevada Law.
1
Agreement
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Corporation and Indemnitee do hereby covenant and agree as
follows:
1. Definitions. As used in this Agreement:
(a) The term "Indemnifiable Matter" means any event,
occurrence, status, or condition that takes place either prior to or
after the execution of this Agreement, including any threatened,
pending, or completed action, suit, proceeding, or alternative dispute
resolution activity, whether brought by or in the right of the
Corporation or otherwise and whether of a civil, criminal,
administrative, or investigative nature, in which Indemnitee was, is,
or believes he might be involved as a party, witness, or otherwise
(except any of the foregoing initiated by Indemnitee pursuant to
section 15 to enforce Indemnitee's rights under this Agreement): (i) by
reason of the fact, in whole or in part, that Indemnitee is or was
actually or allegedly a director, officer, agent, or advisor of the
Corporation; (ii) by reason of any action actually or allegedly taken
by him or of any inaction or omission on his part while acting as a
director, officer, agent, or advisor of the Corporation; (iii) by
reason of the registration, offer, sale, purchase, or ownership of any
securities of the Corporation; (iv) by reason of any duty owed to,
respecting, or in connection with the Corporation; or (v) by reason of
the fact, in whole or in part, that he is or was actually or allegedly
serving at the request of the Corporation as a director, officer,
employee, agent, or advisor of another corporation, partnership, joint
venture, trust, limited liability company, or other entity or
enterprise; in each case, whether or not he is acting or serving in any
such capacity at the time any loss, liability, or expense is incurred
for which indemnification or reimbursement can be provided under this
Agreement and even though Indemnitee may have ceased to serve in such
capacity.
(b) The term "Losses" means (i) any and all losses, claims,
damages, expenses, liabilities, judgments, fines, penalties, and
actions in respect thereof, as they are incurred, against Indemnitee in
connection with an Indemnifiable Matter; (ii) amounts paid by
Indemnitee in settlement of an Indemnifiable Matter; (iii) any
indirect, consequential, or incidental damages suffered or incurred by
Indemnitee; and (iv) all attorneys' fees and disbursements,
accountants' fees and disbursements, private investigation fees and
disbursements, retainers, court costs, payments of attachment, appeal,
or other bonds or security, transcript costs, fees of experts, fees and
expenses of witnesses, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and
all other disbursements or expenses reasonably incurred by or for
Indemnitee in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, appealing, or being or preparing to
be a witness in any threatened or pending Indemnifiable Matter or
establishing Indemnitee's right or entitlement to indemnification for
any of the foregoing.
(c) Reference to "other enterprise" shall include employee
benefit plans; references to "fines" shall include any excise tax
assessed with respect to any employee benefit plan; references to
"serving at the request of the Corporation" shall include any service
as a director, officer, employee, agent, or advisor with respect to an
employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner he reasonably believed to be in
the interests 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.
(d) The term "Indemnitee" shall include the Indemnitee named
in the first paragraph of this Agreement and such Indemnitee's actual
or alleged alter egos, spouse, family members, and corporations,
2
partnerships, limited liability companies, trusts, and other
enterprises or entities of any form whatsoever under the control of any
of the foregoing, and the property of all of the foregoing. The term
"control" (including the terms "controlling," "controlled by," and
"under common control with") means the possession, direct or indirect,
of the power to direct or cause the direction of the management and
policies of a person or entity, whether through the ownership of voting
securities, by contract, or otherwise, as interpreted under the
Securities Act of 1933 or the Securities Exchange Act of 1934
("Exchange Act").
(e) The term "substantiating documentation" shall mean copies
of bills or invoices for costs incurred by or for Indemnitee, or copies
of court or agency orders, decrees, or settlement agreements, as the
case may be, accompanied by a declaration, which need not be notarized,
from Indemnitee that such bills, invoices, court or agency orders,
decrees, or settlement agreements represent costs or liabilities
meeting the definition of "Losses" herein.
(f) Except as provided in section 14, the term "Independent
Counsel" shall mean an attorney, law firm, or member of a law firm, who
(or which) is licensed to practice law in the state of Nevada and is
experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent (i) the
Corporation or Indemnitee in any other matter material to either such
party; or (ii) any other party to the Indemnifiable Matter 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 Corporation or Indemnitee in an action to determine Indemnitee's
rights under this Agreement. From time to time, the Corporation may
select and preapprove the names of persons or law firms that it deems
qualified as Independent Counsel under the foregoing criteria. Further,
at the request of Indemnitee, the Corporation shall review the
qualifications and suitability under the foregoing criteria of persons
or law firms selected by Indemnitee and preapprove them as Independent
Counsel if they meet the foregoing criteria. An Independent Counsel
that has already been preapproved by the board of directors may be
appointed as Independent Counsel without any further evaluation, so
long as such prospective Independent Counsel continues, as determined
by the board of directors, to remain independent.
(g) A "Change in Control" shall be deemed to have occurred if
(i) any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation or a
corporation owned directly or indirectly by the stockholders of the
Corporation in substantially the same proportions as their ownership of
stock of the Corporation, (1) that is or becomes the beneficial owner,
directly or indirectly, of securities of the Corporation representing
20% or more of the combined voting power of the Corporation's
then-outstanding voting securities, increases its beneficial ownership
of such securities by 5% or more over the percentage so owned by such
person, or (2) becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing more than 30% of the total voting power
represented by the Corporation's then-outstanding voting securities,
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the board of directors of the
Corporation and any new director whose election by the board of
directors or combination for election by the Corporation's stockholders
was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or
(iii) the stockholders of the Corporation approve a merger or
3
consolidation of the Corporation with any other corporation other than
a merger or consolidation that would result in the voting securities of
the Corporation outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least two-thirds of the
total voting power represented by the voting securities of the
Corporation or such surviving entity outstanding immediately after such
merger or consolidation, or the stockholders of the Corporation approve
a plan of complete liquidation of the Corporation or an agreement for
the sale or disposition by the Corporation of (in one transaction or a
series of transactions) all or substantially all of the Corporation's
assets.
2. Indemnity of Indemnitee. The Corporation hereby agrees to indemnify,
protect, defend, and hold harmless Indemnitee against any and all Losses
incurred by reason of the fact that Indemnitee is or was a director, officer,
agent, or advisor of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, agent, or advisor of another
corporation, partnership, joint venture, trust, limited liability company, or
other entity or enterprise, to the fullest extent permitted by Nevada Law. The
termination of any Indemnifiable Matter by judgment, order of the court,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee is not entitled to
indemnification, and with respect to any criminal proceeding, shall not create a
presumption that such person believed that his conduct was unlawful. The
indemnification provided herein shall be applicable whether or not the breach of
any standard of care or duty, including a breach of a fiduciary duty, of the
Indemnitee is alleged or proven, except as limited by section 3 herein.
Notwithstanding the foregoing, in the case of any Indemnifiable Matter brought
by or in the right of the Corporation, Indemnitee shall not be entitled to
indemnification for any claim, issue, or matter as to which Indemnitee has been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation or for amounts paid in settlement to
the Corporation unless, and only to the extent that, the court in which the
Indemnifiable Matter was brought or another court of competent jurisdiction
determines, on application, that in view of all the circumstances, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
3. Limit on Indemnification. Notwithstanding any breach of any standard
of care or duty, including breach of a fiduciary duty, by the Indemnitee, the
Corporation shall indemnify Indemnitee except when a final adjudication
establishes that Indemnitee's acts or omissions involved intentional misconduct,
fraud, or a knowing violation of law and were material to the cause of action.
4. Choice of Counsel. Indemnitee shall be entitled to employ and be
reimbursed for the fees and disbursements of counsel separate from that chosen
by any other person or persons whom the Corporation is obligated to indemnify
with respect to the same or any related or similar Indemnifiable Matter.
5. Losses.
(a) Losses (other than judgments, penalties, fines, and
settlements) incurred by Indemnitee shall be paid by the Corporation,
in advance of the final disposition of the Indemnifiable Matter, within
10 days after receipt of Indemnitee's written request accompanied by
substantiating documentation.
(b) Indemnitee hereby undertakes to repay to the Corporation
any advances of Losses pursuant to this Agreement to the extent that it
is ultimately determined that Indemnitee is not entitled to
indemnification.
6. Officer and Director Liability Insurance. The Corporation shall,
from time to time, make the good faith determination whether or not it is
practicable for the Corporation to obtain and maintain a policy or policies of
insurance with reputable insurance companies providing the officers and
directors of the Corporation with coverage for Losses or to ensure the
4
Corporation's performance of its indemnification obligations under this
Agreement. Among other considerations, the Corporation will weigh the costs of
obtaining such insurance coverage against the protection afforded by such
coverage. The Corporation shall consult with and be heard by Indemnitee in
connection with the Corporation's actions hereunder. In all policies of director
and officer liability insurance, (a) Indemnitee shall be named as an insured in
such a manner as to provide Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Corporation's directors, if
Indemnitee is a director, or of the Corporation's officers, if Indemnitee is not
a director of the Corporation but is an officer; and (b) the policy shall
provide that it shall not be cancelled or materially modified without 30 days'
prior written notice to Indemnitee. Notwithstanding the foregoing, the
Corporation shall have no obligation to obtain or maintain such insurance if the
Corporation determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or if Indemnitee
is covered by similar insurance maintained by a subsidiary or parent of the
Corporation.
7. Indemnification Trust Fund or Other Financial Arrangements. Pursuant
to Nevada Revised Statutes ss. 78.752 or any successor Nevada Law, the
Corporation may establish an indemnification trust fund or make other financial
arrangements acceptable to Indemnitee for Indemnitee's benefit. Indemnitee shall
be an intended third-party beneficiary of any such fund or arrangement, with the
right, power, and authority of the Indemnitee to xxx for, enforce, and collect
the same, in the name, place, and stead of the Corporation or otherwise, for
Indemnitee's benefit. Such fund or other arrangements shall be available to
Indemnitee for payment of Losses upon the Corporation's failure, inability, or
refusal to pay Losses incurred by the Indemnitee.
8. Right of Indemnitee to Indemnification upon Application; Selection
of Independent Counsel; Procedure upon Application.
(a) Any application for indemnification under this Agreement,
other than when Losses are paid in advance of any final disposition
pursuant to section 5 hereof, shall be submitted to the board of
directors. If a quorum of the board of directors were not parties to
the action, suit, proceeding, or other matter, a majority of the
directors who were not parties to the action, suit, proceeding, or
other matter may determine whether indemnification of the applicant is
not prohibited by law or may have such determination made by
Independent Counsel in a written decision. If a quorum of the board
directors who were not parties to the action cannot be obtained, the
board of directors shall have such determination made by Independent
Counsel in a written decision. Notwithstanding the foregoing, however,
the board of directors may under any circumstances submit the
determination of whether indemnification is proper in the circumstances
to the stockholders. The board of directors shall respond to a request
for indemnification or initiate the process of submitting the
determination to the stockholders within 45 days after receipt by the
Corporation of the written application for indemnification.
(b) If required, Independent Counsel shall be selected by the
board of directors, and the Corporation shall give written notice to
Indemnitee advising him of the identity of Independent Counsel so
selected. Indemnitee may, within seven days after such written notice
of selection shall have been given, deliver to the Corporation a
written objection to such selection. Such objection may be asserted
only on the ground that Independent Counsel so selected does not meet
the requirements of "Independent Counsel," as defined in section 1, and
the objection shall set forth with particularity the factual basis of
such assertion. If such written objection is made, Independent Counsel
so selected may not serve as Independent Counsel unless and until a
court has determined that such objection is without merit. If, within
20 days after submission by Indemnitee of a written objection to the
Independent Counsel selected, the Corporation has failed to identify a
replacement Independent Counsel, the Indemnitee may petition any court
5
of competent jurisdiction for resolution of any objection that shall
have been made by Indemnitee to the Corporation's selection of
Independent Counsel and for appointment as Independent Counsel of a
person selected by such court or by such other person as such court
shall designate, and the person with respect to whom an objection is so
resolved or the person so appointed shall act as Independent Counsel.
The Corporation shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in connection
with its fees and expenses incident to the procedures of this section 8
regardless of the manner in which such Independent Counsel was selected
or appointed.
(c) The right to indemnification or advances as provided by
this Agreement shall be enforceable by Indemnitee in any court of
competent jurisdiction. The burden of proving that indemnification is
not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its board of directors or Independent Counsel)
to have made a determination prior to the commencement of such action
that indemnification is proper in the circumstances, nor an actual
determination by the Corporation (including its board of directors or
Independent Counsel) that indemnification is not proper in the
circumstances, shall be a defense to the action, suit, proceeding, or
other matter or create a presumption that indemnification is not proper
in the circumstances.
9. Notice to Insurers. If at the time of the receipt of an application
for indemnification pursuant to section 2 hereof or a request for advances of
Losses pursuant to section 5 hereof, the Corporation has director and officer
liability insurance in effect, the Corporation shall give prompt notice of the
commencement of such Indemnifiable Matter to the insurers in accordance with the
procedures set forth in the respective policies. The Corporation shall
thereafter take all necessary or desirable actions to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result of such
Indemnifiable Matter in accordance with the terms of such policies.
10. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of Losses provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may be entitled under the Articles or
Bylaws, Nevada Law, any policy or policies of directors' and officers' liability
insurance, any other agreement, any vote of stockholders or disinterested
directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office (together, "Other
Indemnification"). However, Indemnitee shall reimburse the Corporation for
amounts paid to him under Other Indemnification and not under this Agreement in
an amount equal to any payments received pursuant to such Other Indemnification,
to the extent such payments duplicate any payments received pursuant to this
Agreement.
11. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is a
director, officer, employee, agent, or advisor of the Corporation (or is or was
serving at the request of the Corporation as a director, officer, employee,
agent, or advisor of another corporation, partnership, joint venture, trust,
limited liability company, or other enterprise) and shall continue thereafter so
long as Indemnitee shall be subject to any possible Indemnifiable Matter.
12. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of Losses, but not, however, for the total amount thereof, the
Corporation shall nevertheless indemnify Indemnitee for the portion of such
Losses to which Indemnitee is entitled.
13. Settlement of Claims. The Corporation shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any Indemnifiable Matter effected without the Corporation's written consent. The
Corporation shall not settle any Indemnifiable Matter in any manner that would
impose any penalty or limitation on Indemnitee's rights under this Agreement
without Indemnitee's written consent. Neither the Corporation nor Indemnitee
6
will unreasonably withhold its consent to any proposed settlement. The
Corporation shall not be liable to indemnify Indemnitee under this Agreement
with regard to any judicial award if the Corporation was not given a reasonable
and timely opportunity, at its expense, to participate in the defense of such
action.
14. Change in Control. The Corporation agrees that if there is a Change
in Control of the Corporation (other than a Change in Control that has been
approved by a majority of the Corporation's board of directors who were
directors immediately prior to such Change in Control), then, with respect to
all matters thereafter arising concerning the rights of Indemnitee to payments
of Losses under this Agreement or any other agreement, or under the Articles or
Bylaws as now or hereafter in effect, independent counsel shall be selected by
the Indemnitee and approved by the Corporation (which approval shall not be
unreasonably withheld). Such counsel, among other things, shall render its
written opinion to the Corporation and Indemnitee as to whether and to what
extent Indemnitee would be permitted to be indemnified under Nevada Law as
determined in accordance with section 16(d). The Corporation agrees to abide by
such opinion and to pay the reasonable fees of the independent counsel referred
to above and to fully indemnify such counsel against any and all expenses
(including attorneys' fees), claims, liabilities, and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
15. 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 Indemnitee to serve as a director
or officer of the Corporation, and acknowledges that Indemnitee is
relying upon this Agreement in continuing as a director or officer. The
Corporation shall be precluded from asserting in any action commenced
pursuant to this section 15 that the procedures and presumptions in
this section are not valid, binding, and enforceable and shall
stipulate in any such judicial proceedings that the Corporation is
bound by all of the provisions of this Agreement.
(b) In any action commenced pursuant to this section 15,
Indemnitee shall be presumed to be entitled to indemnification and
advancement of Losses in accordance with section 5 under this
Agreement, as the case may be, and the Corporation shall have the
burden of proof in overcoming such presumption and must show by clear
and convincing evidence that Indemnitee is not entitled to
indemnification or advancement of Losses, as the case may be.
(c) The execution of this Agreement shall constitute the
Corporation's stipulation by which it shall be irrevocably bound in any
action by Indemnitee for enforcement of Indemnitee's rights hereunder
that the Corporation's 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 immediate
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 respecting a 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.
(d) In the event that Indemnitee shall deem it necessary or
desirable to retain legal counsel and/or incur other costs and expenses
in connection with the interpretation or enforcement of any or all of
Indemnitee's rights under this Agreement, Indemnitee shall be entitled
to recover from the Corporation, and the Corporation shall indemnify
Indemnitee against, any and all fees, costs, and expenses (of the types
described in the definition of Losses in section 1(b)) incurred by
7
Indemnitee in connection with the interpretation or enforcement of said
rights. The Corporation shall make payment to the Indemnitee at the
time such fees, costs, and expenses are incurred by Indemnitee. If,
however, the Indemnitee does not prevail in such action under this
section 15, Indemnitee shall repay any and all such amounts to the
Corporation. If it shall be determined in an action pursuant to this
section 15 that Indemnitee is entitled to receive part but not all of
the indemnification or advancement of fees, costs, and expenses or
other benefit sought, the expenses incurred by Indemnitee in connection
with an action pursuant to this section 15 shall be equitably allocated
between the Corporation and Indemnitee. Notwithstanding the foregoing,
if a Change in Control shall have occurred, Indemnitee shall be
entitled to indemnification under this section 15 regardless of whether
Indemnitee ultimately prevails in such judicial adjudication or
arbitration. This section 15(d) is not subject to the provisions of
section 8.
16. Governing Law; Binding Effect; Amendment and Termination;
Construction.
(a) This Agreement shall be interpreted and enforced in
accordance with Nevada Law.
(b) This Agreement shall be binding upon the Corporation, its
successors and assigns, and shall inure to the benefit of Indemnitee,
such Indemnitee's actual or alleged alter egos, spouse, family members,
and corporations, partnerships, limited liability companies, trusts,
and other enterprises or entities of any form whatsoever under the
control of any of the foregoing, the property of all of the foregoing,
and the successors and assigns of all of the foregoing.
(c) No amendment, modification, termination, or cancellation
of this Agreement shall be effective unless in writing signed by the
Corporation and Indemnitee.
(d) This Agreement shall be construed liberally in favor of
the Indemnitee to the fullest extent possible under Nevada Law, even if
such indemnification is not specifically authorized by this Agreement
or any other agreement, the Articles or Bylaws, or by Nevada Law. In
the event Nevada Law is changed after the date of this Agreement,
through statutory amendment, judicial interpretation, administrative
regulations, or otherwise, to allow additional indemnification or to
remove or restrict current limitations on indemnification, this
Agreement shall be deemed to be amended and reformed so that Indemnitee
shall enjoy by this Agreement the greater benefits of such change. In
the event of any change in Nevada Law that narrows or restricts the
right of a Nevada corporation to indemnify Indemnitee, such change, to
the extent not otherwise required by Nevada Law to be applied to
Indemnitee in the relevant circumstances, shall have no effect on this
Agreement or the rights and obligations of the parties hereunder.
17. Mutual Acknowledgement. Both the Corporation and Indemnitee
acknowledge that in certain instances, federal law or applicable public policy
may prohibit the Corporation from indemnifying its directors and officers under
this Agreement or otherwise. Indemnitee understands and acknowledges that the
Corporation may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Corporation's right under
public policy to indemnify Indemnitee.
18. Severability. If any provision of this Agreement shall be held to
be invalid, illegal, or unenforceable:
(a) the validity, legality, and enforceability of the
remaining provisions of this Agreement shall not be in any way affected
or impaired thereby; and
8
(b) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal, or unenforceable.
Each section of this Agreement is a separate and independent portion of this
Agreement. If the indemnification to which Indemnitee is entitled as respects
any aspect of any claim varies between two or more sections of this Agreement,
that section providing the most comprehensive indemnification shall apply.
19. Notice. Any notice, demand, request, or other communication
permitted or required under this Agreement shall be in writing and shall be
deemed to have been given as of the date so delivered, if personally served; as
of the date so sent, if transmitted by facsimile and receipt is confirmed by the
facsimile operator of the recipient; as of the date so sent, if sent by
electronic mail and receipt is acknowledged by the recipient; one day after the
date so sent, if delivered by overnight courier service; or three days after the
date so mailed, if mailed by certified mail, return receipt requested, addressed
as follows:
If to the Corporation: RVision, Inc.
0000 X Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxxx@xxxxxxxxxx.xxx
If to Indemnitee, to: [see schedule]
or such other addresses, facsimile numbers, or electronic mail address as shall
be furnished in writing by any party in the manner for giving notices hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective on and as of the day and year first above written.
Corporation:
RVISION, INC.
By: /s/
----------------------------------------
Its President
Indemnitee:
[see schedule]
Schedule of Indemnification Agreements for Officers and Directors
Name of Indemnitee Date of Indemnification Agreement
------------------ ---------------------------------
Xxxxxxx X. Xxxxxxxx December 14, 2005
Xxxxx X. Xxxxx December 14, 2005
Xxxxxxx X. Xxxxxxx December 14, 2005
Xxxxxx X. Xxxxx December 14, 2005
Xxxx X. Xxxxxx June 12, 2006
9
