INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT made as of___________, by and
between Xxxxxx Resources Inc., a New York corporation with its principal office
located at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx (the "Corporation"),
and _________________________, an Officer and/or Director of the Corporation
residing at ___________________ (the "Indemnitee").
W I T N E S S E T H :
WHEREAS, the Corporation seeks to attract and retain the most capable
persons available to serve as its directors and officers; and
WHEREAS, such persons require substantial protection against personal
liability arising out of their faithful service to the Corporation;
WHEREAS, the Corporation and the Indemnitee believe it desirable to enter
into agreements to reflect indemnification and advancement of expenses
arrangements; and
WHEREAS, in recognition of the Corporation's desire to retain the services
of the Indemnitee and in furtherance of the Corporation's policy, the
Corporation desires to provide the Indemnitee with the right to indemnification
and advancement of expenses and the Indemnitee desires to receive such right,
all upon the terms and subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the foregoing premises, the
Indemnitee's continued service to the Corporation and the mutual covenants
contained herein, the parties hereby agree as follows:
1. Certain Terms Defined. As used in this Agreement, the following terms
shall have the following meanings:
(a) The term "Affiliated Entity" shall mean any corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, limited liability
company, trust, employee benefit plan or other enterprise which the Indemnitee
served in any capacity at the request of the Corporation.
(b) The term "Action" shall mean any action or proceeding, whether civil,
criminal, administrative or investigative, and including one by or in the right
of the Corporation or by or in the right of any other Affiliated Entity which
the Indemnitee served in any capacity at the request of the Corporation.
(c) The term "Agreement" shall mean this Indemnification Agreement, as the
same may be amended from time to time.
(d) The term "Board" shall mean the Board of Directors of the Corporation.
2. Right to Indemnification. Subject to the terms set forth in this
Agreement, the Corporation shall indemnify the Indemnitee if the Indemnitee is
made, or is threatened to be made, a party to any Action by reason of the fact
that the Indemnitee is or was a director or officer of the Corporation, or
served another Affiliated Entity in any capacity, against judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees,
incurred as a result of such Action or any appeal therein.
3. Limitation on Indemnification. The Indemnitee shall not be entitled to
indemnification under Section 2 if a judgment or other final adjudication
adverse to the Indemnitee establishes that (i) the Indemnitee's acts were
committed in bad faith or were the result of active and deliberate dishonesty
and, in either case, were material to the cause of action so adjudicated, or
(ii) the Indemnitee personally gained in fact a financial profit or other
advantage to which the Indemnitee was not legally entitled.
4. Advances of Expenses. (a) At the written request of the Indemnitee, the
Corporation will advance to the Indemnitee the expenses (including attorneys'
fees) incurred by the Indemnitee in defending any Action in advance of the final
disposition of such Action.
(a) The Indemnitee hereby agrees and undertakes to repay such advanced
amounts (or appropriate portions thereof) as to which it ultimately is
determined that the Indemnitee was not entitled; provided that this undertaking
shall be effective only if and to the extent that, by law, it must be enforced
as a condition to the receipt by the Indemnitee of advanced expenses under this
Section.
5. Payment by Corporation. The Corporation shall pay the indemnification
requested under Section 2 and advance the expenses requested under Section 4
promptly following receipt by the Corporation of the Indemnitee's written
request therefor and, in any event, no later than thirty (30) days after such
receipt (in the case of requested indemnification) or fifteen (15) days after
such receipt (in the case of requested advanced expenses).
6. Enforcement. (a) The right of the Indemnitee to indemnification and
advancement of expenses provided by this Agreement shall be enforceable by the
Indemnitee in any court of competent jurisdiction. In such an enforcement
action, the burden shall be on the Corporation to prove that the indemnification
and advancement of expenses being sought are not appropriate. Neither the
failure of the Corporation to determine whether indemnification or the
advancement of expenses is proper in the circumstances nor an actual
determination by the Corporation thereon adverse to the Indemnitee shall
constitute a defense to the action or create a presumption that the Indemnitee
is not so entitled.
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(b) Without limiting the scope of indemnification to which the Indemnitee
is entitled under this Agreement, (i) if the Indemnitee has been successful on
the merits or otherwise in the defense of an Action, the Indemnitee shall be
entitled to indemnification as authorized in Section 2 and (ii) the termination
of any Action by judgment, settlement, conviction or plea of nolo contendere or
its equivalent shall not in itself create a presumption that the Indemnitee has
not met the standard of conduct required for indemnification under this
Agreement.
(c) The Indemnitee's reasonable expenses incurred in connection with
successfully establishing the Indemnitee's right to indemnification or
advancement or expenses, in whole or in part, in any such proceeding under this
Section also shall be indemnified by the Corporation.
7. Non-Exclusivity. Nothing contained in this Agreement shall limit the
right to indemnification and advancement of expenses to which the Indemnitee
would be entitled by law in the absence of this Agreement, or shall be deemed
exclusive of any other rights to which the Indemnitee in seeking indemnification
or advancement of expenses may have or hereafter be entitled under any law,
provision of the Certificate of Incorporation, By-Law, agreement approved by or
resolution of the Board, or resolution of shareholders of the Corporation.
8. Subrogation. (a) The Corporation shall not be liable under this
Agreement to make any payment in connection with any claim made against the
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any insurance policy, By-Law or otherwise) of the amounts otherwise
subject to indemnification or expense advance under this Agreement.
(b) In the event of payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee other than from the Corporation, and the Indemnitee shall execute all
papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the
Corporation effectively to bring suit to enforce such rights.
9. Notice of Claim. As a condition precedent to the right to be indemnified
under this Agreement, the Indemnitee shall give the Corporation written notice
as soon as practicable of any claim made against the Indemnitee for which
indemnification or expense advances will or could be sought under this
Agreement. In addition, the Indemnitee shall give the Corporation such
information and cooperation as the Corporation reasonably may require.
10. Severability. If this Agreement or any portion hereof shall be
invalidated or held unenforceable on any ground by any court of competent
jurisdiction, the Corporation nevertheless shall indemnify the Indemnitee to the
fullest extent permitted by any applicable portion of this Agreement that shall
not have been so invalidated or held unenforceable.
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11. Continuity of Rights. (a) The right of the Indemnitee to
indemnification and advancement of expenses under this Agreement shall (i)
continue after the Indemnitee has ceased to serve in a capacity which would
entitle the Indemnitee to indemnification or advancement of expenses pursuant to
this Agreement with respect to acts or omissions occurring prior to such
cessation, (ii) inure to the benefit of the heirs, executors and administrators
of the Indemnitee, (iii) apply with respect to acts or omissions occurring prior
to the execution and delivery of this Agreement to the fullest extent permitted
by law and (iv) survive any restrictive amendment or termination of this
Agreement with respect to events occurring prior thereto.
(b) The Corporation and the Indemnitee may be parties to an existing
Indemnification Agreement entered into prior to the date of this Agreement. If
so, then upon the execution and delivery of this Agreement, that existing
Indemnification Agreement shall cease to be of any further force and effect as
to any acts or omissions of the Indemnitee occurring thereafter. Notwithstanding
the foregoing, such existing Indemnification Agreement shall continue to apply
if and to the extent it would afford Indemnitee greater rights and benefits than
this Agreement with respect to acts or omissions occurring prior to the
execution and delivery of this Agreement.
12. Proceedings Initiated by Indemnitee. Other than to the extent provided
in Section 6(c), above, the Indemnitee shall not be entitled to indemnification
or advancement of expenses under this Agreement with respect to any Action
initiated by the Indemnitee, but shall be entitled to indemnification and
advancement of expenses with respect to any counterclaim or third-party claim in
any such Action.
13. Binding Effect. This Agreement shall be binding upon all successors and
assigns of the Corporation (including any transferee of all or substantially all
of its assets and any successor by merger or operation of law) and shall inure
to the benefit of the heirs, personal representatives, successors,
representatives and estate of the Indemnitee.
14. Governing Law. This Agreement shall be governed by, and be construed
and enforced in accordance with, the laws of the State of New York applicable to
contracts made and to be performed in such state, without giving effect to the
principles of conflicts of laws.
15. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
16. Notices. (a) Any notice, request or other communication hereunder to or
on behalf of the Corporation or the Indemnitee shall be in writing and shall be
delivered to the other party hereto at the address shown on the first page
hereof (in the case of the Corporation, addressed to the attention of the
Board). Any such notice, request or other communication shall be deemed
delivered one business day after sent by Federal Express, Express Mail or
similar overnight delivery service or, if sent otherwise, then upon the receipt
thereof at that address.
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(b) Either address referred to in the preceding subsection may be changed
from time to time in the manner specified in the preceding subsection, and
thereafter notices, requests and other communications shall be delivered to the
most recent address so furnished.
17. Counterparts. This Agreement may be executed in any number of
counterparts. Each counterpart of an agreement so executed shall be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument. In making proof of this Agreement, it shall not be necessary to
produce or account for more than one counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
XXXXXX RESOURCES INC.
By:
Name:
Title:
INDEMNITEE:
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