EXHIBIT 10:35
NETTAXI, INC.
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is made as of this ____ day of
______, 1999, by and between NETTAXI, INC., a Nevada corporation (the
"Company"), and ________________ (the "Indemnitee").
A. The Indemnitee is currently serving as ____________________ of the
Company and in such capacity renders valuable services to the Company.
B. The Company has investigated whether additional protective measures
are warranted to protect adequately its directors and officers against various
legal risks and potential liabilities to which such individuals are subject due
to their position with the Company and has concluded that additional protective
measures are warranted.
C. In order to induce and encourage highly experienced and capable
persons such as the Indemnitee to continue to serve as officers and directors,
the Board of Directors has determined, after due consideration, that this
Agreement is not only reasonable and prudent, but necessary to promote and
ensure the best interests of the Company and its stockholders.
NOW, THEREFORE, in consideration of the continued services of the
Indemnitee and as an inducement to the Indemnitee to continue to serve as
____________________, the Company and the Indemnitee do hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
(a) "Proceeding" shall mean any threatened, pending or completed
action, suit or proceeding, whether brought in the name of the Company or
otherwise and whether of a civil, criminal, administrative or investigative
nature, by reason of the fact that the Indemnitee is or was an officer and/or a
director of the
Company, or is or was serving at the request of the Company as director,
officer, employee or agent of any other corporation, partnership, joint venture,
trust or other enterprise, whether or not he is serving in such capacity at the
time any liability or Expense is incurred for which indemnification or
advancement of Expenses is to be provided under this Agreement.
(b) "Expenses" means, all costs, charges and expenses incurred in
connection with a Proceeding, including, without limitation, attorneys' fees,
disbursements and retainers, accounting and witness fees, travel and deposition
costs, expenses of investigations, judicial or administrative proceedings or
appeals, and any expenses of establishing a right to indemnification pursuant to
this Agreement or otherwise, including reasonable compensation for time spent by
the Indemnitee in connection with the investigation, defense or appeal of a
Proceeding or action for indemnification for which he is not otherwise
compensated by the Company or any third party; provided, however, that the term
"Expenses" includes only those costs, charges and expenses incurred with the
Company's consent, which consent shall not be unreasonably withheld; and
provided further, that the term "Expenses" does not include the amount of
damages, judgments, amounts paid in settlement, fines, penalties or excise taxes
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
actually levied against the Indemnitee or paid by or on behalf of the
Indemnitee.
2. AGREEMENT TO SERVE.
The Indemnitee agrees to continue to serve as an officer of the Company at
the will of the Company for so long as Indemnitee is duly elected or appointed
or until such time as Indemnitee tenders a resignation in writing or is
terminated, as an officer by the Company. Nothing in this Agreement shall be
construed to create any right in Indemnitee to continued service as an officer
of the Company.
3. INDEMNIFICATION IN THIRD PARTY ACTIONS.
The Company shall indemnify the Indemnitee in accordance with the
provisions of this Section 3 if the Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any Proceeding (other than a Proceeding
by or in the right of the Company to procure a judgment in its favor), by reason
of the fact that the Indemnitee is or was an officer and/or a director of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of any other corporation, partnership, joint venture,
trust or other enterprise, against all Expenses, damages, judgments, amounts
paid in settlement, fines, penalties and ERISA excise taxes actually and
reasonably incurred by the Indemnitee in connection
with the defense or settlement of such Proceeding, to the fullest extent
permitted by Nevada law; provided that any settlement shall be approved in
writing by the Company.
4. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
The Company shall indemnify the Indemnitee in accordance with the
provisions of this Section 4 if the Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any Proceeding by or in the right of
the Company to procure a judgment in its favor by reason of the fact that the
Indemnitee is or was an officer and/or a director of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another enterprise, against all Expenses actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such Proceeding, to
the fullest extent permitted by Nevada law.
5. CONCLUSIVE PRESUMPTION REGARDING STANDARD OF CONDUCT.
The Indemnitee shall be conclusively presumed to have met the relevant
standards of conduct required by Nevada law for indemnification pursuant to this
Agreement, unless a determination is made that the Indemnitee has not met such
standards by (i) the Board of Directors of the Company by a majority vote of a
quorum thereof consisting of directors who were not parties to such Proceeding,
(ii) the stockholders of the Company by majority vote, or (iii) in a written
opinion of independent legal counsel, the selection of whom has been approved by
the Indemnitee in writing.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provision of this Agreement, to the extent that
the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, including the dismissal of a Proceeding
without prejudice, the Indemnitee shall be indemnified against all Expenses
incurred in connection therewith to the fullest extent permitted by Nevada law.
7. ADVANCES OF EXPENSES.
The Expenses incurred by the Indemnitee in any Proceeding shall be paid
promptly by the Company in advance of the final disposition of the Proceeding at
the written request of the Indemnitee to the fullest extent permitted by Nevada
law; provided that the Indemnitee shall undertake in writing to repay such
amount to the extent that it is ultimately determined that the Indemnitee is not
entitled to indemnification by the Company.
8. PARTIAL INDEMNIFICATION.
If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, damages,
judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes
actually and reasonably incurred by Indemnitee in the investigation, defense,
appeal or settlement of any Proceeding but not, however, for the total amount
thereof, the Company shall nevertheless indemnify the Indemnitee for the portion
of such Expenses, damages, judgments, amounts paid in settlement, fines,
penalties or ERISA excise taxes to which the Indemnitee is entitled.
9. INDEMNIFICATION PROCEDURE; DETERMINATION OF RIGHTS.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding with respect to which the Indemnitee intends to
claim indemnification pursuant to this Agreement, the Indemnitee will notify the
Company of the commencement thereof. The omission to so notify the Company will
not relieve the Company from any liability which it may have to the Indemnitee
under this Agreement or otherwise.
(b) If a claim under this Agreement is not paid by or on behalf of the
Company within 30 days of receipt of written notice thereof, Indemnitee may at
any time thereafter bring suit in any court of competent jurisdiction against
the Company to enforce the right to indemnification provided by this Agreement.
It shall be a defense to any such action (other than an action brought to
enforce a claim for Expenses incurred in defending any Proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Company) that the Indemnitee has failed to meet the
standard of conduct that makes it permissible under Nevada law for the Company
to indemnify the Indemnitee for the amount claimed. The burden of proving by
clear and convincing evidence that indemnification or advancement of Expenses
are not appropriate shall be on the Company. The failure of the directors or
stockholders of the Company or independent legal counsel to have made a
determination prior to the commencement of such Proceeding that indemnification
or advancement of Expenses are proper in the circumstances because the
Indemnitee has met the applicable standard of conduct shall not be a defense to
the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct.
(c) The Indemnitee's Expenses incurred in connection with any action
concerning Indemnitee's right to indemnification or advancement of Expenses in
whole or in part pursuant to this Agreement shall also be indemnified by the
Company regardless of the outcome of such action, unless a court of competent
jurisdiction determines that each of the material claims made by the Indemnitee
in such action was not made in good faith or was frivolous.
(d) With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate therein at its own
expense and, except as otherwise provided below, to the extent that it may wish,
the Company may assume the defense thereof, with counsel satisfactory to the
Indemnitee. After notice from the Company to the Indemnitee of its election to
assume the defense of a Proceeding, the Company will not be liable to the
Indemnitee under this Agreement for any Expenses subsequently incurred by the
Indemnitee in connection with the defense thereof, other than reasonable costs
of investigation or as otherwise provided below. The Company shall not settle
any Proceeding in any manner which would impose any penalty or limitation on the
Indemnitee without the Indemnitee's written consent. The Indemnitee shall have
the right to employ counsel in any Proceeding, but the Expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of the Indemnitee, unless (i) the employment of counsel
by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of the defense of a Proceeding, or
(iii) the Company shall not in fact have employed counsel to assume the defense
of a Proceeding, in each of which cases the Expenses of the Indemnitee's counsel
shall be at the expense of the Company. The Company shall not be entitled to
assume the defense of any Proceeding brought by or on behalf of the Company or
as to which the Indemnitee has concluded that there may be a conflict of
interest between the Company and the Indemnitee.
10. LIMITATIONS ON INDEMNIFICATION.
No payments pursuant to this Agreement shall be made by the Company:
(a) to indemnify or advance Expenses to the Indemnitee with respect to
actions initiated or brought voluntarily by the Indemnitee and not by way of
defense except with respect to actions brought to establish or enforce a right
to indemnification under this Agreement or any other statute or law or otherwise
as required under Nevada law, but such indemnification or advancement of
Expenses may be provided by the Company in specific cases if approved by the
Board of Directors by a majority vote of a quorum thereof consisting of
directors who are not parties to such action;
(b) to indemnify the Indemnitee for any Expenses, damages, judgments,
amounts paid in settlement, fines, penalties or ERISA excise taxes for which
payment is actually made to the Indemnitee under a valid and collectible
insurance policy, except in respect of any excess beyond the amount paid under
such insurance;
(c) to indemnify the Indemnitee for any Expenses, damages, judgments,
amounts paid in settlement, fines, penalties or ERISA excise taxes for which the
Indemnitee has been or is indemnified by the Company otherwise than pursuant to
this Agreement;
(d) to indemnify the Indemnitee for any Expenses, damages, judgments,
amounts paid in settlement, fines, penalties or ERISA excise taxes resulting
from Indemnitee's conduct which is finally adjudicated by a court of competent
jurisdiction (i) to have been knowingly fraudulent or a knowing violation of
law, or (ii) to have involved intentional misconduct on the part of the
Indemnitee; or
(e) if a court of competent jurisdiction shall enter a final order,
decree or judgment to the effect that such indemnification or advancement of
Expenses hereunder is unlawful under the circumstances.
11. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE.
The indemnification and advancement of Expenses provided by this Agreement
shall not be deemed to limit or preclude any other rights to which the
Indemnitee may be entitled under the Articles of Incorporation, the Bylaws, any
agreement, any vote of stockholders or disinterested directors, Nevada law, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in any other capacity on behalf of the Company while holding such office.
12. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon, and shall inure to the benefit of (i)
the Indemnitee and Indemnitee's heirs, personal representatives, executors,
administrators and assigns and (ii) the Company and its successors and assigns,
including any transferee of all or substantially all of the Company's assets and
any successor or assign of the Company by merger or by operation of law.
13. SEPARABILITY.
Each provision of this Agreement is a separate and distinct agreement and
independent of the other, so that if any provision hereof shall be held to be
invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect the validity or enforceability of the other provisions hereof.
To the extent required, any provision of this Agreement may be modified by a
court of competent jurisdiction to preserve its validity and to provide the
Indemnitee with the broadest possible indemnification and advancement of
Expenses permitted under Nevada law. If this Agreement or any portion thereof
is invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee as to Expenses, damages,
judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes
with respect to any Proceeding to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated or by any
applicable provision of Nevada law or the law of any other jurisdiction.
14. HEADINGS.
The Headings used herein are for convenience only and shall not be used in
construing or interpreting any provision of the Agreement.
15. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada.
16. AMENDMENTS AND WAIVERS.
No amendment, waiver, modification, termination or cancellation of this
Agreement shall be effective unless in writing and signed by the party against
whom enforcement is sought. The indemnification rights afforded to the
Indemnitee hereby are contract rights and may not be diminished, eliminated or
otherwise affected by amendments to the Company's Articles of Incorporation,
Bylaws or agreements, including any directors' and officers' liability insurance
policies, whether the alleged actions or conduct giving rise to indemnification
hereunder arose before or after any such amendment. No waiver of any provision
of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof, whether or not similar, nor shall any waiver constitute a
continuing waiver.
17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each party and delivered to the
other.
18. NOTICES.
All notices and communications shall be in writing and shall be deemed duly
given on the date of delivery if personally delivered or the date of receipt or
refusal indicated on the return receipt if sent by first class mail, postage
prepaid, registered or certified, return receipt requested, to the following
addresses, unless notice of a change of address in duly given by one party to
the other, in which case notices shall be sent to such changed address:
If to the Company:
Nettaxi, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: ____________________
If to Indemnitee:
____________________
____________________
____________________
____________________
19. SUBROGATION.
In the event of any payment under this Agreement to or on behalf of the
Indemnitee, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Indemnitee against any person, firm,
corporation or other entity (other than the Company) and the Indemnitee shall
execute all papers requested by the Company and shall do any and all things that
may be necessary or desirable to secure such rights for the Company, including
the execution of such documents necessary or desirable to enable the Company to
effectively bring suit to enforce such rights.
20. SUBJECT MATTER AND PARTIES.
The intended purpose of this Agreement is to provide for indemnification
and advancement of Expenses, and this Agreement is not intended to affect any
other aspect of any relationship between the Indemnitee and the Company and is
not intended to and shall not create any rights in any person as a third party
beneficiary hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"INDEMNITEE"
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"COMPANY"
NETTAXI, INC., a Nevada corporation
By:
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Its:
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