EXHIBIT 10.2
FORM OF INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the ___ day of __________, 1999 between iMALL,
Inc., a Nevada corporation (the "Corporation"), and ___________________, (the
"Indemnitee").
WITNESSETH THAT:
WHEREAS, it is in the Corporation's best interest to attract and retain
capable directors ("Directors") and officers ("Officers");
WHEREAS, both the Corporation and the Indemnitee recognize the increased
risk of litigation and other claims being asserted against directors and
officers of public corporations in today's environment;
WHEREAS, each of Article VI of the Corporation's Articles of Incorporation,
Section 78.7502 of the Nevada Revised Statutes ("NRS") and Article 5 of the
Corporation's Second Amended and Restated Bylaws expressly recognizes that the
right of indemnification provided therein shall not be exclusive of any other
rights to which any indemnified person may otherwise be entitled; and
WHEREAS, the Corporation's Second Amended and Restated Bylaws, its Articles
of Incorporation and applicable law permit contracts between the Corporation, on
the one hand, and the members of its Board of Directors and Officers, on the
other hand, covering indemnification.
NOW, THEREFORE, the parties hereto agree as follows:
1. Indemnity. In consideration of the Indemnitee's agreement to serve or
continue to serve as a Director and/or Officer of the Corporation, or, at
the request of the Corporation, as a director, officer, employee, fiduciary
or agent of another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit plan)
("Designated Director"), for so long as he or she is duly elected and/or
appointed and continues to serve as a Director and/or Officer in accordance
with the Corporation's Second Amended and Restated Bylaws, the Corporation
hereby agrees to hold the Indemnitee harmless and to indemnify the
Indemnitee to the fullest extent permitted by applicable law from and
against any and all expenses, liabilities or losses asserted against or
incurred by the Indemnitee in his or her capacity as a Director and/or
Officer of the Corporation or a Designated Director or arising out of his
or her status in either such capacity.
2. Maintenance of Insurance. (a) Subject only to the provisions of
Section 2(b) hereof, the Corporation hereby agrees that, so long as the
Indemnitee shall continue to serve as a Director and/or Officer of the
Corporation or a Designated Director, and thereafter so long as the
Indemnitee shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal or
investigative (including an action by or in the right of the Corporation),
by reason of the fact that the Indemnitee was a Director and/or Officer of
the Corporation, the Corporation will provide insurance coverage comparable
to that provided under the Corporation's Directors' and Officers' Liability
Insurance policies (the "Insurance Policies") in effect December 1, 1998.
(b) However, the Corporation shall not be required to maintain all or
any of such insurance policies or comparable insurance coverage if, in the
business judgment of the Board of Directors of the Corporation, (i) the
premium cost for such insurance is substantially disproportionate to the
amount of coverage, or (ii) the coverage provided by such insurance is so
limited by exclusions that there is insufficient benefit from such
insurance or (iii) such insurance is otherwise not reasonably available.
3. Additional Indemnity. Subject only to the exclusions set forth in
Section 4 hereof, the Corporation hereby further agrees to hold harmless
and indemnify the Indemnitee:
(1) to the fullest extent provided under Article VI of the
Corporation's Articles of Incorporation and under Article 5 of the
Corporation's Second Amended and Restated Bylaws as in effect at the
date hereof; and
(2) in the event the Corporation does not maintain in effect the
insurance coverage provided under Section 2 hereof, to the full extent
of the coverage which would otherwise have been provided for the benefit
of the Indemnitee pursuant to the Insurance Policies in effect at
December 1, 1998.
4. Limitations on Additional Indemnity. No indemnity pursuant to
Section 3 hereof shall be paid by the Corporation:
(1) except to the extent the aggregate of losses to be indemnified
thereunder exceed the amount of such losses for which the Indemnitee is
indemnified or insured pursuant to either Section 1 or 2 hereof;
(2) in respect of remuneration paid to, or indemnification of, the
Indemnitee, if it shall be determined by a final judgment or other final
adjudication that such remuneration or indemnification was or is
prohibited by applicable law;
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(3) for any transaction from which the Indemnitee derived an improper
personal benefit;
(4) for any breach of the Indemnitee's duty to act in good faith and
in a manner he or she reasonably believed to be in or not opposed to the
best interest of the Corporation; or
(5) in respect of acts or omissions which involve intentional
misconduct or a knowing violation of law by the Indemnitee.
5. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue during the period the
Indemnitee is a Director and/or Officer of the Corporation and shall
continue thereafter so long as the Indemnitee shall be subject to any
possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative (including an action
by or in the right of the Corporation), by reason of the fact that the
Indemnitee was a Director and/or Officer of the Corporation or a Designated
Director.
6. Notification and Defense of Claim. Promptly after receipt by the
Indemnitee of notice of the commencement of any action, suit or proceeding,
the Indemnitee shall, if a claim in respect thereof is to be made against
the Corporation under this Agreement, notify the Corporation of the
commencement thereof at the address provided herein (such address being
subject to change by written notice from the Corporation); but an omission
so to notify the Corporation will not relieve it from any liability which
it may have to the Indemnitee otherwise than under this Agreement,
including, without limitation, its liability under the Corporation's
Articles of Incorporation and Second Amended and Restated Bylaws. With
respect to any such action, suit or proceeding:
(1) the Corporation shall be entitled to participate therein at its
own expense;
(2) except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party shall be
entitled to assume the defense thereof, with counsel satisfactory to the
Indemnitee. After notice from the Corporation to the Indemnitee of its
election so to assume the defense thereof, the Corporation will not be
liable to the Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by the Indemnitee in connection with the
defense thereof other than reasonable costs of investigation or as
otherwise provided below. The Indemnitee shall have the right to employ
its counsel in such action, suit or proceeding but the fees and expenses
of such counsel incurred after notice from the Corporation 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
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by the Corporation, (ii) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Corporation and the
Indemnitee in the conduct of the defense of such action, or (iii) the
Corporation shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of
counsel shall be at the expense of the Corporation. The Corporation
shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Corporation or as to which the
Indemnitee shall have made the conclusion provided for in (ii) above;
and
(3) the Corporation shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent. The Corporation shall not
settle any action or claim in any manner that would impose any penalty
or limitation on the Indemnitee without the Indemnitee's written
consent. Neither the Corporation nor the Indemnitee will unreasonably
withhold their consent to any proposed settlement.
7. Advancement and Repayment of Expenses. Expenses incurred in
connection with any action, suit or proceeding involving the Indemnitee and
in respect of which a claim is made against the Corporation under this
Agreement shall be paid promptly by the Corporation in advance of the final
disposition of such action, suit or proceeding. The Indemnitee agrees that
the Indemnitee will reimburse the Corporation for all reasonable expenses
advanced, paid or incurred by the Corporation on behalf of the Indemnitee
in respect of a claim against the Corporation under this Agreement in the
event and only to the extent that it shall be ultimately determined that
the Indemnitee is not entitled to be indemnified by the Corporation for
such expenses under the provisions of NRS Chapter 78.
8. Enforcement. If a claim under this Agreement is not paid in full
by the Corporation within ninety days after a written claim has been
received by the Corporation, the Indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the Indemnitee shall also be
entitled to be reimbursed for all expenses actually and reasonably incurred
by the Indemnitee in connection with the prosecution of such claim.
9. Severability. If any provision of this Agreement shall be held to
be or shall, in fact, be invalid, inoperative or unenforceable as applied
to any particular case or in any particular jurisdiction, for any reason,
such circumstances shall not have the effect of rendering the provision in
question invalid, inoperative or unenforceable in any other distinguishable
case or jurisdiction, or of rendering any other provision or provisions
herein contained invalid, inoperative or unenforceable to any extent
whatsoever. The invalidity, inoperability or unenforceability of any one or
more phrases, sentences, clauses or Sections
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contained in this Agreement shall not affect any other remaining part of
this Agreement.
10. Governing Law; Binding Effect; Amendment or Termination.
(a) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Nevada.
(b) This Agreement shall be binding upon the Indemnitee and upon the
Corporation and its successors and assigns, and shall inure to the
benefit of the Indemnitee and his or her heirs, personal
representatives, executors and administrators, and to the benefit of the
Corporation and its successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
iMALL, Inc.
By:
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Name:
Title:
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
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Indemnitee
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