INDEMNIFICATION AGREEMENT
This Agreement, made and entered into this 10th day of October, 2000
("Agreement"), by and between Beryllium International, Corp. a Utah corporation
(the "Corporation"), and Xxxxxxx X. Xxxxx ("Indemnitee"):
WHEREAS, highly Competent Persons have become more reluctant to serve
publicly-held corporations as directors, officers, or in other capacities,
unless they are provided with better protection from the risk of claims and
actions against them arising out of their service to and activities on behalf
of such corporations; and
WHEREAS, the current Impracticability of obtaining adequate insurance
and the uncertainties related to indemnification have increased the difficulty
of attracting and retaining such persons; and
WHEREAS, the Board of Directors of the Corporation (the "Board") has
determined that the inability to attract and retain such persons is detrimental
to the best interests of the Corporation's stockholders and that such persons
should be assured that they will have better protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Corporation to
obligate itself contractually to indemnify such persons to the fullest extent
permitted by applicable law, so that such persons will serve or continue to
serve the Corporation free from undue concern that they will not be adequately
indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the
by-laws of the Corporation, any rights granted under the Certificate of
Incorporation of the Corporation and any resolutions adopted pursuant thereto
and shall not be deemed to be a substitute therefore nor to diminish or
abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Corporation on the condition that
he be indemnified according to the terms of this Agreement,
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Corporation and Indemnitee do hereby covenant and agree
as follows:
Section I - Definitions. For purposes of this Agreement:
(a) "Change in Control" means a change in control of the Corporation
occurring after the Effective Date of a nature that would be required to be
reported in response to Schedule 14A of Regulation 14A (or in response to any
similar item on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934 (the "Act"), whether or not the Corporation is then
subject to such reporting requirement; provided, however, that without
limitation, such a Change in Control shall be deemed to have occurred if after
the Effective Date (i) any "person" (as such term is used is Sections 13(d) and
14(d) of the Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the Corporation
representing 25% or more of the combined voting power of the Corporation's then
outstanding securities without the prior approval of at least two-thirds of the
Exhibit 99.5 - Pg. 1
members of the Board in office immediately prior to such person attaining such
percentage interest; (ii) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the Board thereafter;
or (iii) during any period of two consecutive years, Individuals who at the
beginning of such period constituted the Board (including for this purpose any
new director whose election or nomination 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 were directors at the beginning of such period cease)
for any reason to constitute at least a majority of the Board.
(b) "Corporate Status means the status of a person who is or was a
director, officer, employee, agent of fiduciary of the Corporation or of any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such person is or was serving at the request of the
Corporation,
(c) "Disinterested Director" means a director of the Corporation
who is not and was not a party to the Proceeding in respect of which
indemnification it sought by Indemnitee.
(d) "Effective Date" means the date hereof.
(e) "Expenses" means all reasonable attorneys' fees, retainers, court
costs, transcripts costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and 91 other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
(f) "Independent Counsel" means a law firm or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years have 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 Proceeding giving rise to a claim far 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 lndemnitee's rights under
this Agreement.
(g) "Proceeding" means any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative bearing or any other
proceeding, whether civil, criminal, administrative or investigative, except
one initiated by an Indemnitee pursuant to Section 11 of this Agreement to
enforce his rights under this Agreement.
Section 2. Services by Indemnitee. Indemnitee agrees to serve as a
director of the Corporation, and, at its request, as a director, officer,
employee, agent or fiduciary of certain other corporations and entities.
Indemnitee may at any time and for any reason resign from any such position
(subject to any other contractual obligation or any obligation impose by
operation of law).
Section 3. Indemnification - General. The Corporation shall indemnify,
and advance Expenses to, Indemnitee as provided in this Agreement to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may thereafter from time to time permit
including, without limitation, the full extent of indemnification by agreement
permitted by the Florida General Corporation Law and any similar provision of
Exhibit 99.5 - Pg. 2
any other state corporate law and any successor Provision. The rights of
Indemnitee provided under the preceding sentence shall include, but shall not
be limited to, the rights set forth in the other Sections of this Agreement.
Section 4. Proceedings Other Than Proceedings by or in the Right of the
Corporation. Indemnitee shall be entitled to the rights of indemnification
provided in this Section if, by reason of his Corporate Status, he is, or is
threatened to be made, a party to any threatened, pending, or completed
Proceeding, other than a Proceeding by or in the right of the Corporation,
Pursuant to this Section, Indemnitee shall be indemnified against Expenses,
Judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him at on his behalf in connection with any such
Proceeding or any claim, issue or matter therein, if he acted in good faith
and In a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal Proceeding,
had no reasonable cause to believe his conduct was unlawful.
Section 5. Proceeding by or in the Right of the Corporation. Indemnitee
shall indemnification provided In this Section if, by reason of his Corporate
Status, he is, or is threatened to be made, a Party to any threatened, pending
at completed Proceeding brought by or in the right of the Corporation to
procure a judgment In its favor. Pursuant to this Section, Indemnitee shall be
indemnified against Expenses actually and reasonably incurred by him or on his
behalf in connection with any such Proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interest
of the Corporation. Notwithstanding the foregoing, no indemnification against
such Expenses shall be made in respect of any claim, issue or matter in any
such Proceeding as to which Indemnitee shall have been adjudged to be liable
to the Corporation if applicable law prohibits such indemnification, unless the
Court of Chancery of the State of Florida, or the court in which such
Proceeding shall have been brought or is pending, shall determine that
indemnification against Expenses may nevertheless be made by the Corporation.
Section 6. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, to
the extent that Indemnitee is, by reason of his Corporate Status, a party to
and is successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claim, issues or matters in such Proceeding, the
Corporation shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on behalf in connection with each successfully
resolved claim, issue or matter. For the purposes of this Section and without
limiting the foregoing, the termination of any claim, issue or manner in any
such Proceeding by dismissal, with or without prejudice, shall be deemed to
be a successful result as to such claim, issue or matter.
Section 7. Indemnification for Expenses of a Witness Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith.
Section 8. Advancement of Expenses. The Corporation shall advance all
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within twenty days after the receipt by the Corporation of a
statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the,
Exhibit 99.5 - Pg. 3
Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses.
Section 9. Procedure for Determination of Entitlement to
Indemnification.
(a) To obtain indemnification under this Agreement in connection with
any proceeding, and for the duration thereof, Indemnitee shall submit to the
Corporation a written request, including therein or therewith such
documentation and Information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Corporation shall, promptly
upon receipt of any such request for indemnification, advise the Board in
writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to
Section 9(a) hereof, a determination shall be made in such case (i) if a Change
in Control shall have occurred, by Independent Counsel (unless Indemnitee shall
request that such determination be made by the Board or the Stockholders, in
which case in the manner proved for in clauses. (ii) and (iii) of this Section
9(b)) in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee; (ii) if a Change of Control shall not have occurred, (A) by the
Board by a majority vote of a quorum consisting of Disinterested Directors, or
(B) if a quorum of the Board consisting of Disinterested Directors is not
obtainable, or even if such quorum is obtainable, if such quorum of
Disinterested Directors so directs, either (x) by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered to Indemnitee
or (y) by the stockholders of the Corporation, as determined by such quorum of
Directions, or a quorum of the Board, as the case may be; or (iii) as provided
in Section 10(b) of this Agreement. If it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall cooperate with the
person, persons or entity making such determination with respect to
Indemnitee's entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the persons or
entity making such determination shall be borne by the Corporation
(irrespective of the determination as of Indemnitee's entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) If required, Independent Counsel shall be selected as follows. (i)
if a Change of Control shall not have occurred, Independent Counsel shall be
selected by the Board, and the Corporation shall give written notice to
Indemnitee advising him of the Identity of Independent Counsel or selected; or
(ii) if a Change of Control shall have occurred, Independent Counsel shall be
selected by Indemnitee (unless Indemnitee shall request that such selection be
made by the Board, in which event (i) shall apply), and Indemnitee shall give
written notice to the Corporation advising it of the identity of Independent
Counsel so selected. In either event, Indemnitee or the Corporation, as the
case maybe, may, within 7 days after such written notice of selection shall
have been given, delivered to the Corporation or to Indemnitee, as the case
maybe, 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 of this
Agreement, 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
Exhibit 99.5 - Pg. 4
after submission by Indemnitee of a written request for indemnification
pursuant to Section 9(a) hereof, no Independent Counsel shall have been
selected and not objected to, either the Corporation or Indemnitee may petition
the Court of Chancery of the State of Florida, or other court of competent
jurisdiction, for resolution of any objection which shall have been made by the
Corporation or Indemnitee to the other's selection of Independent Counsel
and/or for the appointment as Independent Counsel of a person with respect to
whom an objection Is so resolved or the person so appointed shall act as
Independent Counsel under Section 9(b) hereof. The Corporation shall pay any
and all reasonable fees and expenses pursuant to this Agreement, and the
Corporation shall pay all reasonable fees and expenses incident to the
procedures of this Section 9(c), regardless of the manner in which such
Independent Counsel was selected or appointed. Upon the due commencement date
of any judicial proceeding or arbitration pursuant to Section 11(a)(iii) of
this Agreement, Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards
of professional conduct then prevailing).
Section 10. Presumptions and Effects of Certain Proceedings.
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(a) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 9(a) of
this Agreement, and the Corporation shall have the burden of proof to overcome
that presumption in connection with the making by any person, persons or
entity of any determination contrary to that presumption.
(b) If the person, persons or entity empowered or selected under
Section 9 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within 60 days after
receipt by the Corporation of the request therefore, the requisite
determination of entitlement to Indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification, absent (1) a
misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification. or (ii) prohibition of such
indemnification under applicable law, provided, however, that such 60-day
period may be extended for a reasonable time, not to exceed an additional 30
days, if the person, persons or entity making the determination with respect
to entitlement to indemnification in good faith require(s) such additional
time for the obtaining or evaluating of documentation and/or information
relating thereto; and provided, further that the foregoing provisions of this
Section 10(b) shall not apply (i) if the determination of entitlement to
indemnification A to be made by the stockholders pursuant to Section 9(b) of
this Agreement and If (A) within 15 days after receipt by the Corporation of
the request for such determination of the Board has resolved to submit such
determination to the stockholders for their consideration at an actual
meeting thereof to be held within 75 days after such receipt and such
determination is made thereat, or (B) a special meeting of stockholders is
called within 15 days after such receipt for the purpose of making such
determination, such meeting is held for such purpose within 60 days after
having been so called and such determination is made thereat, or (ii) If the
determination of entitlement Is indemnification is to be made by Independent
Counsel pursuant to Section s(b) of this Agreement.
(c) The termination of any proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
Exhibit 99.5 - Pg. 5
the best interests of the Corporation or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his conduct
was unlawful.
Section 11. Remedies of Indemnitee
----------------------
(a) In the event that (i) a determination is made pursuant to Section 9
of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section
8 of this Agreement, (iii) the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 9(b) of this Agreement
and such determination shall not have been made and delivered in a written
opinion within 90 days after receipt by the Corporation of the request for
Indemnification, (iv) payment of indemnification is not made within ten (10)
days after a determination his been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 9 or 10 of this Agreement, Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of Florida, or in any other
court of competent jurisdiction, of his entitlement to such Indemnification or
advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association. Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within 180 days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 11(a). The Corporation shall not oppose
Indemnitee's right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to
Section 9 of this Agreement that Indemnitee is not entitled to indemnification,
any judicial proceeding or arbitration commenced pursuant to this Section shall
be conducted in all respects as a de novo trial or arbitration on the merits
and Indemnitee shall not be prejudiced by reason of that adverse determination.
If a Change of Control shall have occurred, in any judicial proceeding or
arbitration commenced pursuant to this Section the Corporation shall have the
burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been made
pursuant to Section 9 or 10 of this Agreement that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section, absent
(i) a misstatement by Indemnitee of a material fact, or any omission of a
material fact necessary to make Indemnitee's statement not materially
misleading. In connection with the request far indemnification, or (ii)
prohibition of such indemnification under applicable law.
(d) The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Corporation is bound by all the provisions of this Agreement.
(e) In the event that Indemnitee, pursuant to this Section, seeks a
judicial adjudication of, an award in arbitration to enforce, his rights under,
or to recover damages for breach of, this Agreement, Indemnitee shall be
entitled to recover from the Corporation, and shall be indemnified by the
Corporation against, any and all expenses (of the kinds described in the
definition of Expenses) actually and reasonably incurred by him in such
judicial adjudication or arbitration, but only if he prevails therein, If it
Exhibit 99.5 - Pg. 6
shall be determined in such judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the indemnification or
advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be
appropriately prorated.
Section 12. Non-Exclusivity: Survival of Rights: Insurance Subrogation.
-----------------------------------------------------------
(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Certificate of Incorporation or by-laws of the Corporation, any
agreement, a vote of stockholders or a resolution of directors, or otherwise.
No amendment alteration or repeal of this Agreement or any provision hereof
shall be effective as to any Indemnitee with respect to any action taken or
omitted by such Indemnitee in his Corporate Status prior to such amendment,
alteration or repeal.
(b) To the extent that the Corporation maintains an insurance policy or
policies providing liability insurance for directors, officers, employees,
agents or fiduciaries of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, Indemnitee shall
be covered by such policy or policies in accordance with its or their terms to
the maximum extent of the coverage available for any such director, officer,
employee, agent or fiduciary under such policy or policies.
(c) In the event of any payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including excluding execution of such
documents as are necessary to enable the Corporation to bring suit to enforce
such rights.
(d) The Corporation shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement and otherwise.
Section 13. Duration of Agreement. This Agreement shall continue until
and terminate upon the later of (a) 10 years after the date that Indemnitee
shall have ceased to serve as a director, officer, employee, agent or fiduciary
of the Corporation or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which Indemnitee served at
the request of the Corporation; or (b) the final termination of all pending
Proceedings in respect of which Indemnitee is granted rights of indemnification
or advancement of Expenses hereunder and of any proceeding commenced by
Indemnitee pursuant to Section 11 of this Agreement. This Agreement shall be
binding upon the Corporation and its successors and assigns and shall inure to
the benefit of Indemnitee and his heirs, executors and administrators
Section 14. Severability if any Provision or Provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of
any Section of this agreement containing any such provision held to be
invalid. illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (b)
to the fullest extent possible, the provisions of the Agreement (including
without limitation, each portion of any Section of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Exhibit 99.5 - Pg. 7
Section 15. Exception to Right of Indemnification of Advancement of
Expenses. Except as provided in Section 11(e), Indemnitee Shall not be
entitled to indemnification or advancement of Expenses under this Agreement
with respect to any Proceeding, or any claim therein, brought or made by him
against the Corporation.
Section 16. Notice by Indemnitee. Indemnitee agrees promptly to notify
the Corporation in writing upon being served with any summons, citation,
subpoena, complaint, Indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder.
Section 17. Notices . All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given If (i) delivered by hand and receipted for by the party to whom such
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which It is so mailed:
(a) If to Indemnitee to;
Xxxxxxx X. Xxxxx
0000 XX 00xx Xxx
Xxx # 000
Xxxxx Xxxxxxx, XX 00000
(b) If to the Corporation to:
Beryllium International, Corporation.
0000 Xxxx Xxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be,
Section 18. Governing Law. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the law of the
State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
Beryllium International, Corporation. Indemnitee:
By: __/s/Xxxxxxx X. Moody________ ____/s/Xxxxxxx X. Dwyer____
Xxxxxxx X. Xxxxx
Its:_____President__________
Exhibit 99.5 - Pg. 8
