INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of
August 21, 2006, by and between Kings Road Entertainment, Inc., a Delaware
corporation (the "Corporation"), and H. Xxxxxx Xx Xxxxx ("Indemnitee") with a
retroactive effective date of March 30, 2001, being the date of such Indemnitees
first appointment as and Officer and/or Director of the Corporation (the
"Effective Date"), based on the following:
Premises
A. The Restated Certificate of Incorporation of the Corporation (the
"Articles") provides for the limited indemnification of the Corporation's
directors. and the Bylaws (the "Bylaws") provides for indemnification of the
Corporation's directors and officers to the fullest extent permitted by any
applicable and controlling Delaware law, statute, rule, decision, or finding
(collectively, "Delaware 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/or 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 Delaware Law.
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.
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(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, 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 Delaware or such other place in
which the Corporation has an Office, 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
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approve a merger or 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 Delaware 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.
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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 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. Other Financial Arrangements. The Corporation may make other financial
arrangements acceptable to Indemnitee for Indemnitee's benefit and Indemnitee
shall be an intended third-party beneficiary of any such 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. Any 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
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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 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, Delaware 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.
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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
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 Delaware 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.
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(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 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 Delaware 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 Delaware Law, even if such
indemnification is not specifically authorized by this Agreement or any
other agreement, the Articles or Bylaws, or by Delaware Law. In the event
Delaware 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 Delaware
Law that narrows or restricts the right of a Delaware corporation to
indemnify Indemnitee, such change, to the extent not otherwise required by
Delaware 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
(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.
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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: Kings Road Entertainment, Inc.
000 X. Xxxxxx Xxxxx, Xxxxx X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to Indemnitee, to: H. Xxxxxx XxXxxxx
000 X. Xxxxxx Xxxxx, Xxxxx X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxxxxxxxx@xxx.xxx
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 as of
the day and year first above written to be effective as of the Effective Date.
Corporation:
KINGS ROAD ENTERTAINMENT, INC.
/s/ Xxxxxxxxx Xxxxxxx
___________________________________
By: Xxxxxxxxx Xxxxxxx
Its: Chief Executive Office and Secretary
Indemnitee:
/s/ H. Xxxxxx XxXxxxx
___________________________________
H. Xxxxxx XxXxxxx
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