EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into as of the 20 day of May, 2002, by and between AccuPoll, Inc., a Delaware
corporation (the "Corporation"), and Xxxxxx Xxxxxx ("Indemnitee"), a director
and/or officer.
RECITALS
A. It is essential to the Corporation to retain and attract as
directors and officers of the Corporation the most capable persons available.
B. The substantial increase in corporate litigation subjects directors
and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance has been severely
limited.
C. It is the express policy of the Corporation to indemnify directors
and executive officers of the Corporation so as to provide them with the maximum
possible protection permitted by law.
D. Indemnitee does not regard the protection available under the
Delaware General Corporation Law or the Bylaws of the Corporation as adequate in
the present circumstances, and may not be willing to serve as a director or
officer without adequate protection, and the Corporation desires Indemnitee to
serve in such capacity.
AGREEMENTS
NOW, THEREFORE, the Corporation and Indemnitee do hereby agree as
follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to serve
as a director and/or an officer of the Corporation for so long as he is duly
elected or appointed or until such time as he tenders his resignation in
writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit, investigation or proceeding, and any appeal thereof,
whether brought by or in the right of the Corporation or otherwise and whether
civil, criminal, administrative or investigative, and/or any inquiry or
investigation, in which Indemnitee may be or may have been involved as a party
or otherwise, or that Indemnitee in good faith believes might lead to the
institution of any such proceeding, by reason of the fact that Indemnitee is or
was a director or officer of the Corporation, by reason of any action taken by
him or of any inaction on his part while acting as such a director or officer,
or by reason of the fact that he is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise; in each case whether or
not he is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.
(b) The term "Expenses" shall include, without limitation, expenses,
costs and obligations, paid or incurred, of investigations, judicial or
administrative proceedings or appeals, amounts paid in settlement by or on
behalf of Indemnitee, attorneys' fees and disbursements and any expenses
reasonably and actually incurred in establishing a right to indemnification
under Section 8 of this Agreement including, without limitation, those incurred
in investigating, defending, being a witness in or participating in (including
on appeal), or preparing to defend with respect to any claim, issue or matter
relating thereto or in connection therewith, but shall not include the amount of
judgments, fines or penalties against Indemnitee.
(c) A "Change in Control" shall be deemed to have occurred if, after
the date hereof, there is any transaction or series of transactions within any
twelve (I2)-month period, including, without limitation, a merger, consolidation
or exchange of securities, in which the holders of all of the Corporation's
outstanding voting securities immediately prior to the consummation of such
transaction or the first transaction of such series of transactions do not own,
directly or indirectly, a majority of the combined voting power of the
Corporation's outstanding securities upon consummation of such transaction or
series of such transactions.
(d) The term "Independent Legal Counsel" shall include any attorney or
firm of attorneys, selected in accordance with Section 5 hereof, who shall not
have otherwise performed services for the Corporation or Indemnitee within the
five years prior to the date of selection (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
Indemnitees under similar indemnification agreements).
(e) References 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 or agent
of the Corporation or its subsidiaries, if any, which imposes duties on, or
involves services by, such director, officer, employee, or agent 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.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a
judgment in its favor) by reason of the fact that Indemnitee is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, against all
Expenses, judgments, fines and penalties actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such Proceeding, but
only if he acted in good faith and in a manner which he reasonably believed to
be (in the case of conduct in his official capacity) in the best interests of
the Corporation or (in all other cases) not opposed to the best interests of the
Corporation, and, in the case of a criminal action or proceeding, in addition,
had no reasonable cause to believe that his conduct was unlawful. The
termination of any such Proceeding by judgment, order of court, settlement,
conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of
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itself, 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 the best
interests of the Corporation (or that Indemnitee did not meet any other
particular standard of conduct or have any other particular belief or that a
court has determined that indemnification is not permitted by applicable law),
and with respect to any criminal proceeding, that such person had reasonable
cause to believe that his conduct was unlawful.
4. INDEMNITEE IN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is a party to or threatened to be made a party to any
Proceeding by or in the right of the Corporation, or any subsidiary, if any, to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
a director or officer of the Corporation or any subsidiary, if any, of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, against all Expenses actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
Proceeding, but only if he acted in good faith and in a manner which he
reasonably believed to be (in the case of conduct in his official capacity) in
the best interests of the Corporation or (in all other cases) not opposed to the
best interests of the Corporation, except that no indemnification for Expenses
shall be made under this Section 4, in respect of any Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Corporation, unless and
only to the extent that any court in which such Proceeding was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem proper.
Notwithstanding the foregoing, Indemnitee shall have no right to indemnification
for Expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended.
5. CHANGE IN CONTROL. The Corporation agrees that in the event of a
Change in Control, and with respect to all matters thereafter arising concerning
the rights of Indemnitee to indemnification and payment of Expenses under this
Agreement or any other agreement to which the Corporation and Indemnitee are
parties or the Bylaws of the Corporation as hereafter in effect relating to
indemnification of directors and/or officers of the Corporation, the Corporation
shall seek legal advice only from the Independent Legal Counsel selected by
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 applicable law. The
Corporation agrees to pay the reasonable fees of the Independent Legal Counsel
referred to above and to indemnify fully such counsel against any and all
expenses (including attorney's fees), claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
6. INDEMNIFICATION PROHIBITED. Notwithstanding the provisions of
Sections 3 and 4, no indemnification shall be made in connection with any
Proceeding charging improper personal benefit to Indemnitee, whether or not
involving action in his official capacity, in which he was adjudged liable on
the basis that personal benefit was improperly received by him.
7. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provision of this Agreement whatsoever, to the extent that Indemnitee has
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been successful on the merits or otherwise (including a settlement) in defense
of any Proceeding or in defense of any claim, issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses reasonably and actually incurred in connection therewith.
8. ADVANCES OF EXPENSES. Expenses incurred by Indemnitee pursuant to Sections 3
and 4 in any Proceeding shall be paid by the Corporation in advance as soon as
practicable but not later than three business days after receipt of the written
request of Indemnitee, provided that Indemnitee shall (i) affirm in such written
request that he acted in good faith and in a manner which he reasonably believed
to be (in the case of conduct in his official capacity) in the best interests of
the Corporation or (in all other cases) not opposed to the best interests of the
Corporation and (ii) undertake to repay such amount to the extent that it is
ultimately determined that Indemnitee is not entitled to indemnification, and
further provided that a determination has been made that the facts then known
would not preclude indemnification pursuant to the terms of this Agreement.
9. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION.
(a) Any indemnification under Sections 3 and 4 shall be made as soon as
practicable but in any event no later than 30 days after receipt by the
Corporation of the written request of Indemnitee.
(b) 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 or advances are not
appropriate shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or stockholders)
to have made a determination prior to the commencement of such action that
indemnification or advances are proper in the circumstances because Indemnitee
has met the applicable standard of conduct, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or
stockholders) that Indemnitee has not met such applicable standard conduct,
shall be a defense to the action or create a presumption that Indemnitee has not
met the applicable standard of conduct. Indemnitee's expenses reasonably
incurred in connection with successfully establishing Indemnitee's right to
indemnification or advances, in whole or in part, in any such Proceeding shall
also be indemnified by the Corporation.
(c) The Corporation shall not be liable under this Agreement to make
any payment in connection with any claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any insurance policy,
Bylaw or otherwise) of the amounts otherwise indemnifiable.
10. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE.
(a) Notwithstanding any other provision of this Agreement, the
Corporation hereby agrees to indemnify Indemnitee to the full extent permitted
by law, whether or not such indemnification is specifically authorized by the
other provisions of this Agreement, the Corporation's Certificate of
Incorporation, the Bylaws, or by statute. In the event of any changes, after the
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date of this Agreement, in any applicable law, statute, or rule which expand the
right of a Delaware corporation to indemnify a member of its board of directors
or any officer, such changes shall be, ipso facto, within the purview of
Indemnitee's rights, and Corporation's obligations, under this Agreement. In the
event of any changes in any applicable law, statute, or rule which narrow the
right of a Delaware corporation to indemnify a member of its board of directors
or any officer, such changes, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(b) The indemnification provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Certificate of Incorporation, the Bylaws, any agreement, any vote of
shareholders or disinterested directors, the laws of the State of Delaware, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
11. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines or penalties actually and reasonably
incurred by him in the investigation, defense, appeal or settlement of any
Proceeding but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such Expenses, judgments,
fines or penalties to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all claims, issues or
matters relating in whole or in part to an indemnifiable event, occurrence or
matter hereunder, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection with such defenses..
12. EFFECT OF FEDERAL LAW. Both the Corporation and indemnitee acknowledge that
in certain instances, federal law will override Delaware law and prohibit the
Corporation from indemnifying its officers and directors. For example, the
Corporation and Indemnitee acknowledge that the Securities and Exchange
Commission has taken the position that indemnification is not permissible for
liabilities arising under certain federal securities laws, and federal law
prohibits indemnification for certain violations of the Employee Retirement
Income Security Act.
13. LIABILITY INSURANCE.
(a) In the event that [Sales Strategies, Inc.], the Corporation's
parent, does not obtain officers and directors insurance covering Indemnitee,
the Corporation shall obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors with coverage
for losses from wrongful acts, or to ensure the Corporation's performance of its
indemnification obligations under this Agreement.
(b) Indemnitee hereby releases the Corporation and its respective
authorized representatives from any claims for indemnification hereunder if and
to the extent that Indemnitee receives proceeds from any liability insurance
policy or other third-party source in payment or reimbursement for such claims.
Indemnitee hereby agrees to assign all proceeds Indemnitee receives under any
such insurance policy or third-party agreement to the extent of the amount of
indemnification made to Indemnitee under the terns of this Agreement. Finally,
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Indemnitee shall cause each insurance policy or other third-party agreement by
which Indemnitee may be entitled to payment or reimbursement to provide that the
insurance company or the third-party agreement by which Indemnitee may be
entitled to payment or reimbursement to provide that the insurance company or
the third party waives all right of recovery by way of subrogation against the
Corporation in connection with any claim for indemnification under this
Agreement. If such waiver of subrogation cannot be obtained except with the
payment of additional sums in premiums or otherwise, Indemnitee shall notify the
Corporation of this fact. The Corporation shall then have ten (10) days after
receiving such notice to agree to pay such additional sums. If a waiver of
subrogation rights is not obtainable at any price or if the Corporation shall
fail to agree to pay such additional sums, Indemnitee shall be relieved of the
obligation to obtain the waiver of subrogation rights with respect to any
particular insurance policy or third-party agreement.
14. SAVING CLAUSE. Nothing in this Agreement is intended to require or shall be
construed as requiring the Corporation to do or fail to do any act in violation
of applicable law. The provisions of this Agreement (including any provision
within a single section, paragraph or sentence) shall be severable in accordance
with this Section 14. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines and penalties 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 other applicable law, and this Agreement shall remain enforceable to
the fullest extent permitted by law.
15. NOTICE. Indemnitee shall, as a condition precedent to his right to be
indemnified under this Agreement, give to the Corporation notice in writing as
soon as practicable of any claim made against him for which indemnity will or
could be sought under this Agreement. Notice to the Corporation shall be
directed to AccuPoll, Inc., 0000 Xxx Xxxxxx Xxx., Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000, Attention: President (or such other address as the Corporation
shall designate in writing to Indemnitee), together with a copy thereof to Xxxx
Xxxxxxx 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000, Attention:
Xxxxxxx Xxxxxx, Esq. All notices, requests, demands and other communications
shall be deemed received three days after the date postmarked if (i) delivered
by hand and receipted for by the party to whom such notice or other
communication shall have been directed, or (ii) sent by prepaid mail, properly
addressed. In addition, Indemnitee shall give the Corporation such information
and cooperation as it may reasonably require and shall be within Indemnitee's
power.
16. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall constitute the original.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of California without giving
effect to its rules of conflicts of laws.
18. CONSENT TO JURISDICTION. The Corporation and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of
California, in the County of Los Angeles, or, if it has or can acquire
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jurisdiction, in the United States District Court for the Central District of
California, for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall be brought only in the state courts of the State of
California.
19. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties and their respective successors
and assigns (including any direct or indirect successors by purchase, merger,
consolidation or otherwise to all or substantially all of the business and/or
assets of the Corporation), spouses, heirs, and personal and legal
representatives. The Corporation shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part, of the business and/or assets of the
Corporation, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director and/or officer
of the Corporation or of any other enterprise.
20. ATTORNEYS' FEES. In the event that any action is instituted by Indemnitee
under this Agreement to enforce or interpret any of the terms hereof, Indemnitee
shall be entitled to be paid all court costs and expenses, including reasonable
attorneys' fees and disbursements, incurred by Indemnitee with respect to such
action, unless as a part of such action, the court of competent jurisdiction
determines that each of the material assertions made by Indemnitee as a basis
for such action were not made in good faith or were frivolous. In the event of
an action instituted by or in the name of the Corporation under this Agreement
or to enforce or interpret any of the terms of this Agreement, Indemnitee shall
be entitled to be paid all court costs and expenses, including attorneys' fees
and disbursements, incurred by Indemnitee in defense of such action (including
with respect to Indemnitee's counterclaims and crossclaims made in such action),
unless as a part of such action the court determines that each of Indemnitee's
material defenses to such action were made in bad faith or were frivolous.
21. SUBSEQUENT INSTRUMENTS AND ACTS. The parties hereto agree that they will
execute any further instrument and perform any acts that may become necessary
from time to time to carry out the terms of this Agreement.
22. LIMITATIONS PERIOD. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Corporation or any affiliate of the
Corporation against Indemnitee, Indemnitee's spouse, heirs, executors or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, and any claim or cause of action of the
Corporation or its affiliates shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two-year period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action such shorter period shall govern.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be duly
executed and signed as of the day and year first above written.
AccuPoll, Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: President
INDEMNITEE:
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
INDEMNIFICATION AGREEMENT.
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into as of the 20 day of May, 2002, by and between AccuPoll, Inc., a Delaware
corporation (the "Corporation"), and Xxxxx Xxxxx ("Indemnitee"), a director
and/or officer.
RECITALS
A. It is essential to the Corporation to retain and attract as
directors and officers of the Corporation the most capable persons available.
B. The substantial increase in corporate litigation subjects directors
and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance has been severely
limited.
C. It is the express policy of the Corporation to indemnify directors
and executive officers of the Corporation so as to provide them with the maximum
possible protection permitted by law.
D. Indemnitee does not regard the protection available under the
Delaware General Corporation Law or the Bylaws of the Corporation as adequate in
the present circumstances, and may not be willing to serve as a director or
officer without adequate protection, and the Corporation desires Indemnitee to
serve in such capacity.
AGREEMENTS
NOW, THEREFORE, the Corporation and Indemnitee do hereby agree as
follows:
I. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to serve
as a director and/or an officer of the Corporation for so long as he is duly
elected or appointed or until such time as he tenders his resignation in
writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit, investigation or proceeding, and any appeal thereof,
whether brought by or in the right of the Corporation or otherwise and whether
civil, criminal, administrative or investigative, and/or any inquiry or
investigation, in which Indemnitee may be or may have been involved as a party
or otherwise, or that Indemnitee in good faith believes might lead to the
institution of any such proceeding, by reason of the fact that Indemnitee is or
was a director or officer of the Corporation, by reason of any action taken by
him or of any inaction on his part while acting as such a director or officer,
or by reason of the fact that he is or was serving at the request of the
Corporation as a director, officer; employee or agent of another corporation,
partnership, joint venture, trust or other enterprise; in each case whether or
not he is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.
(b) The term "Expenses" shall include, without limitation, expenses,
costs and obligations, paid or incurred, of investigations, judicial or
administrative proceedings or appeals, amounts paid in settlement by or on
behalf of Indemnitee, attorneys' fees and disbursements and any expenses
reasonably and actually incurred in establishing a right to indemnification
under Section 8 of this Agreement including, without limitation, those incurred
in investigating, defending, being a witness in or participating in (including
on appeal), or preparing to defend with respect to any claim, issue or matter
relating thereto or in connection therewith, but shall not include the amount of
judgments, fines or penalties against Indemnitee.
(c) A "Change in Control" shall be deemed to have occurred if, after
the date hereof, there is any transaction or series of transactions within any
twelve (12)-month period, including, without limitation, a merger, consolidation
or exchange of securities, in which the holders of all of the Corporation's
outstanding voting securities immediately prior to the consummation of such
transaction or the first transaction of such series of transactions do not own,
directly or indirectly, a majority of the combined voting power of the
Corporation's outstanding securities upon consummation of such transaction or
series of such transactions.
(d) The term "Independent Legal Counsel" shall include any attorney or
firm of attorneys, selected in accordance with Section 5 hereof, who shall not
have otherwise performed services for the Corporation or Indemnitee within the
five years prior to the date of selection (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
Indemnitees under similar indemnification agreements).
(e) References 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 or agent
of the Corporation or its subsidiaries, if any, which imposes duties on, or
involves services by, such director, officer, employee, or agent 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.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a
judgment in its favor) by reason of the fact that Indemnitee is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, against all
Expenses, judgments, fines and penalties actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such Proceeding, but
only if he acted in good faith and in a manner which he reasonably believed to
be (in the case of conduct in his official capacity) in the best interests of
the Corporation or (in all other cases) not opposed to the best interests of the
Corporation, and, in the case of a criminal action or proceeding, in addition,
had no reasonable cause to believe that his conduct was unlawful. The
termination of any such Proceeding by judgment, order of court, settlement,
conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, 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 the best
interests of the Corporation (or that Indemnitee did not meet any other
particular standard of conduct or have any other particular belief or that a
court has determined that indemnification is not permitted by applicable law),
and with respect to any criminal proceeding, that such person had reasonable
cause to believe that his conduct was unlawful.
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4. INDEMNITEE IN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is a party to or threatened to be made a party to any
Proceeding by or in the right of the Corporation, or any subsidiary, if any, to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
a director or officer of the Corporation or any subsidiary, if any, of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, against all Expenses actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
Proceeding, but only if he acted in good faith and in a manner which he
reasonably believed to be (in the case of conduct in his official capacity) in
the best interests of the Corporation or (in all other cases) not opposed to the
best interests of the Corporation, except that no indemnification for Expenses
shall be made under this Section 4, in respect of any Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Corporation, unless and
only to the extent that any court in which such Proceeding was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem proper.
Notwithstanding the foregoing, Indemnitee shall have no right to indemnification
for Expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended.
5. CHANGE IN CONTROL. The Corporation agrees that in the event of a
Change in Control, and with respect to all matters thereafter arising concerning
the rights of Indemnitee to indemnification and payment of Expenses under this
Agreement or any other agreement to which the Corporation and Indemnitee are
parties or the Bylaws of the Corporation as hereafter in effect relating to
indemnification of directors and/or officers of the Corporation, the Corporation
shall seek legal advice only from the Independent Legal Counsel selected by
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 applicable law. The
Corporation agrees to pay the reasonable fees of the Independent Legal Counsel
referred to above and to indemnify fully such counsel against any and all
expenses (including attorney's fees), claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
6. INDEMNIFICATION PROHIBITED. Notwithstanding the provisions of
Sections 3 and 4, no indemnification shall be made in connection with any
Proceeding charging improper personal benefit to Indemnitee, whether or not
involving action in his official capacity, in which he was adjudged liable on
the basis that personal benefit was improperly received by him.
7. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provision of this Agreement whatsoever, to the extent that Indemnitee has
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been successful on the merits or otherwise (including a settlement) in defense
of any Proceeding or in defense of any claim, issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses reasonably and actually incurred in connection therewith.
8. ADVANCES OF EXPENSES. Expenses incurred by Indemnitee pursuant to
Sections 3 and 4 in any Proceeding shall be paid by the Corporation in advance
as soon as practicable but not later than three business days after receipt of
the written request of Indemnitee, provided that Indemnitee shall (i) affirm in
such written request that he acted in good faith and in a manner which he
reasonably believed to be (in the case of conduct in his official capacity) in
the best interests of the Corporation or (in all other cases) not opposed to the
best interests of the Corporation and (ii) undertake to repay such amount to the
extent that it is ultimately determined that Indemnitee is not entitled to
indemnification, and further provided that a determination has been made that
the facts then known would not preclude indemnification pursuant to the terms of
this Agreement.
9. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION; PROCEDURE
UPON APPLICATION.
(a) Any indemnification under Sections 3 and 4 shall be made as soon as
practicable but in any event no later than 30 days after receipt by the
Corporation of the written request of Indemnitee.
(b) 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 or advances are not appropriate shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or stockholders) to have made a
determination prior to the commencement of such action that indemnification or
advances are proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or stockholders)
that Indemnitee has not met such applicable standard conduct, shall be a defense
to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct. Indemnitee's expenses reasonably incurred in connection
with successfully establishing Indemnitee's right to indemnification or
advances, in whole or in part, in any such Proceeding shall also be indemnified
by the Corporation.
(c) The Corporation shall not be liable under this Agreement to make any
payment in connection with any claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any insurance policy,
Bylaw or otherwise) of the amounts otherwise indemnifiable.
10. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE.
(a) Notwithstanding any other provision of this Agreement, the Corporation
hereby agrees to indemnify Indemnitee to the full extent permitted by law,
whether or not such indemnification is specifically authorized by the other
provisions of this Agreement, the Corporation's Certificate of Incorporation,
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the Bylaws, or by statute. In the event of any changes, after the date of this
Agreement, in any applicable law, statute, or rule which expand the right of a
Delaware corporation to indemnify a member of its board of directors or any
officer, such changes shall be, ipso facto, within the purview of Indemnitee's
rights, and Corporation's obligations, under this Agreement. In the event of any
changes in any applicable law, statute, or rule which narrow the right of a
Delaware corporation to indemnify a member of its board of directors or any
officer, such changes, to the extent not otherwise required by such law, statute
or rule to be applied to this Agreement, shall have no effect on this Agreement
or the parties' rights and obligations hereunder.
(b) The indemnification provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Certificate of Incorporation, the Bylaws, any agreement, any vote of
shareholders or disinterested directors, the laws of the State of Delaware, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
11. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines or penalties actually and reasonably
incurred by him in the investigation, defense, appeal or settlement of any
Proceeding but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such Expenses, judgments,
fines or penalties to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all claims, issues or
matters relating in whole or in part to an indemnifiable event, occurrence or
matter hereunder, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection with such defenses.
12. EFFECT OF FEDERAL LAW. Both the Corporation and indemnitee
acknowledge that in certain instances, federal law will override Delaware law
and prohibit the Corporation from indemnifying its officers and directors. For
example, the Corporation and Indemnitee acknowledge that the Securities and
Exchange Commission has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws, and
federal law prohibits indemnification for certain violations of the Employee
Retirement Income Security Act.
13. LIABILITY INSURANCE.
(a) In the event that [Sales Strategies, Inc.], the Corporation's parent,
does not obtain officers and directors insurance covering Indemnitee, the
Corporation shall obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors with coverage
for losses from wrongful acts, or to ensure the Corporation's performance of its
indemnification obligations under this Agreement.
(b) Indemnitee hereby releases the Corporation and its respective
authorized representatives from any claims for indemnification hereunder if and
to the extent that Indemnitee receives proceeds from any liability insurance
policy or other third-party source in payment or reimbursement for such claims.
Indemnitee hereby agrees to assign all proceeds Indemnitee receives under any
such insurance policy or third-party agreement to the extent of the amount of
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indemnification made to Indemnitee under the terms of this Agreement. Finally,
Indemnitee shall cause each insurance policy or other third-party agreement by
which Indemnitee may be entitled to payment or reimbursement to provide that the
insurance company or the third-party agreement by which Indemnitee may be
entitled to payment or reimbursement to provide that the insurance company or
the third party waives all right of recovery by way of subrogation against the
Corporation in connection with any claim for indemnification under this
Agreement. If such waiver of subrogation cannot be obtained except with the
payment of additional sums in premiums or otherwise, Indemnitee shall notify the
Corporation of this fact. The Corporation shall then have ten (10) days after
receiving such notice to agree to pay such additional sums. If a waiver of
subrogation rights is not obtainable at any price or if the Corporation shall
fail to agree to pay such additional sums, Indemnitee shall be relieved of the
obligation to obtain the waiver of subrogation rights with respect to any
particular insurance policy or third-party agreement.
14. SAVING CLAUSE. Nothing in this Agreement is intended to require or
shall be construed as requiring the Corporation to do or fail to do any act in
violation of applicable law. The provisions of this Agreement (including any
provision within a single section, paragraph or sentence) shall be severable in
accordance with this Section 14. If this Agreement or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines and penalties 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 other applicable law, and this Agreement shall remain enforceable to
the fullest extent permitted by law.
15. NOTICE. Indemnitee shall, as a condition precedent to his right to
be indemnified under this Agreement, give to the Corporation notice in writing
as soon as practicable of any claim made against him for which indemnity will or
could be sought under this Agreement. Notice to the Corporation shall be
directed to AccuPoll, Inc., 0000 Xxx Xxxxxx Xxx., Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000, Attention: President (or such other address as the Corporation
shall designate in writing to Indemnitee), together with a copy thereof to Xxxx
Xxxxxxx 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000, Attention:
Xxxxxxx Xxxxxx, Esq. All notices, requests, demands and other communications
shall be deemed received three days after the date postmarked if (i) delivered
by hand and receipted for by the party to whom such notice or other
communication shall have been directed, or (ii) sent by prepaid mail, properly
addressed. In addition, Indemnitee shall give the Corporation such information
and cooperation as it may reasonably require and shall be within Indemnitee's
power.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of California without giving
effect to its rules of conflicts of laws.
18. CONSENT TO JURISDICTION. The Corporation and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of
California, in the County of Los Angeles, or, if it has or can acquire
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jurisdiction, in the United States District Court for the Central District of
California, for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall be brought only in the state courts of the State of
California..
19. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns (including any direct or indirect successors by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Corporation), spouses, heirs, and personal and legal
representatives. The Corporation shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part, of the business and/or assets of the
Corporation, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director and/or officer
of the Corporation or of any other enterprise.
20. ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees and disbursements, incurred by Indemnitee with
respect to such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were not made in good faith or were frivolous. In the
event of an action instituted by or in the name of the Corporation under this
Agreement or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys' fees and disbursements, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee's counterclaims and crossclaims
made in such action), unless as a part of such action the court determines that
each of Indemnitee's material defenses to such action were made in bad faith or
were frivolous.
21. SUBSEQUENT INSTRUMENTS AND ACTS. The parties hereto agree that they
will execute any further instrument and perform any acts that may become
necessary from time to time to carry out the terms of this Agreement.
22. LIMITATIONS PERIOD. No legal action shall be brought and no cause
of action shall be asserted by or in the right of the Corporation or any
affiliate of the Corporation against Indemnitee, Indemnitee's spouse, heirs,
executors or personal or legal representatives after the expiration of two years
from the date of accrual of such cause of action, and any claim or cause of
action of the Corporation or its affiliates shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
AccuPoll, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
INDEMNITEE:
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
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