INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of the 25th day of September, 2002
("Agreement"), by and between PVAXX Corporation, a Colorado corporation
("Company"), and Xxxxx Xxxxxxx and Xxx Xxxxxxxx (collectively the
"Indemnitee").
RECITALS:
WHEREAS, highly competent persons have become more reluctant to serve
publicly-held corporations as directors or officers in other capacities
unless they are provided with adequate protection through insurance or
adequate indemnification against inordinate risks of claims and actions
against them arising out of their service to, and activities on behalf of,
the corporation; this is because such persons in service to corporations are
being increasingly subjected to expensive and time-consuming litigation
relating to, among other things, matters that traditionally would have been
brought only against the corporation or business enterprise itself; and
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that, to attract and retain qualified individuals, the Company will attempt
to maintain on an ongoing basis, at its sole expense, liability insurance to
protect persons serving the Company and its subsidiaries from certain
liabilities; and
WHEREAS, the Board has determined that the increased difficulty in attracting
and retaining such persons is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance expenses on
behalf of, such persons to the fullest extent permitted by applicable law so
that they will serve or continue to serve the Company free from undue concern
that they will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws
of the Company and any resolutions adopted pursuant thereto, and shall not be
deemed a substitute therefore, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS, each of Colorado Model Business Corporation Act ("CMBCA") and the
Bylaws is nonexclusive, and therefore contemplates that contracts may be
entered into with respect to indemnification of directors, officers and
employees; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that he
be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants contained
herein, the Company and Indemnitee hereby covenant and agree as follows:
Section 1. Services by Indemnitee. Indemnitee agrees to continue to
serve as a director or officer of the Company. Indemnitee may at any time and
for any reason resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee
in such position.
This Agreement shall not be deemed an employment contract between the Company
(or any of its subsidiaries) and Indemnitee. This Agreement shall continue in
force after Indemnitee has ceased to serve as a director or officer of the
Company.
Section 2. Indemnification-General. The Company shall indemnify, and
advance Expenses (as hereinafter defined) to, Indemnitee (a) as provided in
this Agreement and (b) to the fullest extent permitted by applicable law in
effect on the date hereof and as amended from time to time. 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 3. Proceedings Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be indemnified under this Section 3 if, by reason
of his Corporate Status (as hereinafter defined), he is, or is threatened to
be made, a party to or a participant in any threatened, pending, or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the
right of the Company. Pursuant to this Section 3, Indemnitee shall be
indemnified against all Expenses, judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him or on his behalf in
connection with 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 Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 4. Proceedings by or in the Right of the Company. Indemnitee shall
be indemnified under this Section 4 if, by reason of his Corporate Status, he
is, or is threatened to be made, a party to or a participant in any threatened,
pending or completed Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall
be indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection with such Proceeding 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 Company; provided that if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company unless and to the extent that the
District Court of the State of Colorado, or the court in which such Proceeding
shall have been brought or is pending, shall determine that such
indemnification may be made.
Section 5. 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 (or
a participant in) and is successful, on the merits or otherwise, in any
Proceeding (including dismissal without prejudice), he shall be indemnified
to the maximum extent permitted by law 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 claims, issues
or matters in such Proceeding, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by him or on his behalf in
connection with each successfully resolved claim, issue or matter. For
purposes of this Section and without limitation, the termination of any claim,
issue or matter in such a Proceeding by dismissal, with or without prejudice,
shall be deemed to be a successful result as to such claim, issue or matter.
Section 6. 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 to which
Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith; provided that he shall not be paid for time spent as such.
Section 7. Advancement of Expenses. Notwithstanding any provision of this
Agreement to the contrary, the Company shall advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding in
which Indemnitee is involved by reason of Indemnitee's Corporate Status within
10 days after the receipt by the Company 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 Expenses incurred by Indemnitee. Indemnitee
hereby undertakes to repay any Expenses advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified against such
Expenses. Any advances and undertakings to repay pursuant to this Section 7
shall be unsecured and interest free.
Section 8. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit
to the Company 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 Company shall, promptly
upon receipt of such a request for indemnification, advise the Board in
writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the
first sentence of Section 8(a), a determination, if required by applicable
law, with respect to Indemnitee's entitlement thereto shall be made in the
specific case, unless Indemnitee and the Company agree otherwise, by
Independent Counsel (as hereinafter defined) in a written opinion to the
Board of Directors, a copy of which shall be delivered to Indemnitee; and,
if it is determined that Indemnitee is entitled to indemnification, payment
to Indemnitee shall be made within 10 days after such determination.
Indemnitee shall cooperate with the person, persons or firm making such
determination with respect to Indemnitee's entitlement to indemnification,
including providing to such person, persons or firm upon reasonable advance
request any documentation or information that is not privileged or otherwise
protected from disclosure and that 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 person, persons or firm making such determination shall be paid by
the Company (irrespective of the determination as to Indemnitee's entitlement
to indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) The Independent Counsel referred to in Section 8(b) shall be selected
as provided in this Section 8(c). The Independent Counsel shall be selected
by the Board of Directors, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so
selected. Within 10 days after such written notice of selection shall have
been given, Indemnitee may deliver to the Company a written objection to
such selection; provided that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the
requirements of "Independent Counsel" as defined in Section 17, and the
objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so selected shall
act as Independent Counsel. If such written objection is so made, the
Independent Counsel so selected may not serve as Independent Counsel unless
and until such objection is withdrawn or a court has determined that such
objection is without merit. If, within 20 days after submission by Indemnitee
of a written request for indemnification pursuant to Section 8(a), no
Independent Counsel shall have been selected and not objected to, Indemnitee
may petition the District Court of the State of Colorado or other court of
competent jurisdiction for resolution of any objection that shall have been
made by Indemnitee to the Company's selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected by the Court
or by such other person as the Court shall designate, and the person with
respect to whom all objections are so resolved or the person so appointed
shall then act as Independent Counsel under Section 8(b). Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section
10(a), Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(d) The Company shall not be required to obtain the consent of Indemnitee
to the settlement of any Proceeding the Company has undertaken to defend if
the Company assumes full and sole responsibility for such settlement and the
settlement grants Indemnitee a complete and unqualified release in respect of
the potential liability. The Company shall not be liable for any amount paid
by the Indemnitee in settlement of any Proceeding that is not defended by the
Company, unless the Company has consented to such settlement, which consent
shall not be unreasonably withheld.
Section 9. Presumptions; Reliance and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or firm 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 8(a) and the Company shall have
the burden of proof to overcome that presumption in connection with the
making by any person, persons or firm of any determination contrary to that
presumption. Neither the failure of Independent Legal Counsel to have made a
determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual
determination thereby that Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.
(b) If the person, persons or firm empowered under Section 8 to determine
whether Indemnitee is entitled to indemnification shall not have made a
determination within 60 days after receipt by the Company 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 (i) 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) a prohibition of such indemnification under applicable law; provided
that such 60-day period may be extended for a reasonable time, not to exceed
an additional 30 days, if the person, persons or firm making the determination
with respect to entitlement to indemnification in good faith requests in
writing such additional time for the obtaining or evaluating of documentation
and/or information relating thereto.
(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
contend ere 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 he reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe his conduct was
unlawful.
(d) For purposes of any determination of Good Faith, Indemnitee shall be
deemed to have acted in Good Faith if Indemnitee's action is based on the
records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers, agents
or employees of the Enterprise in the course of their duties, or on the advice
of legal counsel for the Enterprise or on information or records given or
reports made to the Enterprise by an independent certified public accountant
or by an appraiser, financial advisor or other expert or professional selected
with reasonable care by the Enterprise. The provisions of this Section 9(d)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any director,
officer, agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this
Agreement.
Section 10. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 8 that Indemnitee is
not entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 7, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 8(b)
within 90 days after receipt by the Company of the request for indemnification,
(iv) payment of indemnification is not made pursuant to Section 5, Section 6,
the last sentence of Section 8(b) or the last sentence of Section 17(g) within
10 days after receipt by the Company of a written request therefore, or (v)
payment of indemnification pursuant to Section 3 or Section 4 is not made
within 10 days after a determination has been made that Indemnitee is entitled
to indemnification, Indemnitee shall be entitled to an adjudication by the
District Court of the State of Colorado 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 Commercial Arbitration 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 10(a); provided that the foregoing clause shall not apply in
respect of a proceeding brought by Indemnitee to enforce his rights under
Section 5. The Company shall not oppose Indemnitee's right to seek any such
adjudication or award in arbitration.
(b) If a determination shall have been made pursuant to Section 8(b) that
Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 10 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.
(c) If a determination shall have been made pursuant to Section 8(b) that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 10, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statements not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) If Indemnitee, pursuant to this Section 10, seeks a judicial
adjudication of or 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 Company, and shall be indemnified by the Company against, any
and all expenses (of the types described in the definition of Expenses in
Section 17 of this Agreement) actually and reasonably incurred by him in such
judicial adjudication or arbitration unless it shall be finally determined by
the court or arbitrator before which such claim was brought that it was brought
in bad faith. Even if it 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 paid in full.
(e) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 10 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and hereby stipulates, and shall so stipulate in any such court or
before any such arbitrator, that the Company is bound by all the provisions of
this Agreement.
Section 11. Nonexclusivity; 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
Company's Certificate of Incorporation, the Company's Bylaws, any agreement,
a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal. To the extent that a change in the
CMBCA, whether by statute or judicial decision, permits greater indemnification
or advancement of Expenses than would be afforded currently under the Company's
Certificate of Incorporation, Bylaws and this Agreement, it is the agreement
and intent of the parties hereto that Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change. No right or remedy herein
conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies
providing liability insurance for directors, officers, employees, or agents of
the Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise such person serves at the request of
the Company, 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 or agent under such policy
or policies.
(c) In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all documents required and take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable (or for which advancement is
provided hereunder) hereunder if and to the extent that Indemnitee has
otherwise theretofore actually received such payment under any insurance
policy, contract, agreement or otherwise.
(e) The Company's obligation to indemnify or advance Expenses hereunder to
Indemnitee who 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, employee benefit plan or other enterprise shall be reduced by
any amount Indemnitee has actually theretofore received as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
Section 12. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of: (i) 10 years after the date that Indemnitee shall
have ceased to serve as a director or officer of the Company (or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that Indemnitee served at the request of the Company); or (ii) the
final termination of any Proceeding then pending 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 10 relating
thereto. This Agreement shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of Indemnitee and his heirs,
executors and administrators.
Section 13. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(i) 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 shall remain enforceable
to the fullest extent permitted by law; (ii) such provision or provisions
shall be deemed reformed to the extent necessary to conform to applicable
law and to give the maximum effect to the intent of the parties hereto; and
(iii) to the fullest extent possible, the 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 be construed so
as to give effect to the intent manifested thereby.
Section 14. Exception to Right of Indemnification or Advancement of
Expenses. Notwithstanding any other provision of this Agreement, but subject
to Section 10, Indemnitee shall not be entitled to indemnification or
advancement of Expenses under this Agreement with respect to any Proceeding
brought by Indemnitee, or any claim therein, unless the bringing of such
Proceeding or making of such claim shall have been approved by the Board of
Directors.
Section 15. Identical Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of
this Agreement.
Section 16. Headings. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not be deemed to constitute part
of this Agreement or to affect the construction thereof.
Section 17. Definitions. For purposes or this Agreement:
(a) "Corporate Status" describes the status of a person who is or was a
director, officer, employee or agent of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that such person is or was serving at the request of the Company.
(b) "Disinterested Director" means a director of the Company who is not and
was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(c) "Effective Date" means the date first above written.
(d) "Enterprise" shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
of which Indemnitee is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary.
(e) "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel and
lodging expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or
preparing to be a witness in, or otherwise participating in, a Proceeding.
(f) "Good Faith" shall mean Indemnitee having acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal Proceeding,
having had no reasonable cause to believe Indemnitee's conduct was unlawful.
(g) "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 has been, retained to represent: (i) the Company or any
affiliate thereof or Indemnitee (other than with respect to matters concerning
the Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term "Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing the Company or Indemnitee in an action
to determine Indemnitee's rights under this Agreement. The Company shall
promptly pay the reasonable fees and expenses of the Independent Counsel
referred to above and shall fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(h) "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether brought by or in the right of the Company or otherwise
and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of
the fact that Indemnitee is or was a director or officer of the Company, by
reason of any action taken by him or of any inaction on his part while acting
as director or officer of the Company, or by reason of the fact that he is or
was serving at the request of the Company 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 advancement of expenses can be provided under this
Agreement; except one initiated by a Indemnitee pursuant to Section 10 to
enforce his rights under this Agreement.
(i) 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
Company" shall include any service as a director, officer, employee or agent
of the Company that imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, as
participants or beneficiaries; and a person who acted in good faith and in the
manner he reasonably believed to be in the interests of the participants and
beneficiaries of an employee benefit plan shall not be deemed to have acted in
manner "not opposed to the best interests of the Company" as referred to in
this Agreement.
(j) "Affiliate" means with respect to any person or entity, any other
person or entity that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with,
such person or entity.
Section 18. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order to induce
Indemnitee to continue to serve as a director and/or officer of the Company,
and to serve upon any committee of the Board of Directors of the Company as
requested by such Board, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as a director and/or officer of the
Company and a member of any such committee.
(b) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties
hereto with respect to the subject matter hereof.
Section 19. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by
both of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver.
Section 20. Notice by Indemnitee. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any
Proceeding or matter that may be subject to indemnification or advancement of
Expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation it may have to the Indemnitee
under this Agreement or otherwise, except to the extent the Company is
materially prejudiced by such failure.
Section 21. 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
the 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:
(b) If to the Company, to:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
000-000-0000
or to such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
Section 22. Contribution. To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by
Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts
paid or to be paid in settlement and/or for Expenses, in connection with any
claim relating to an indemnifiable event under this Agreement, in such
proportion as is deemed fair and reasonable in light of all of the
circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and/or (ii) the
relative fault of the Company (and its directors, officers, employees and
agents) and Indemnitee in connection with such event(s) and/or transaction(s).
Section 23. Governing Law; Submission to Jurisdiction; Appointment of
Agent for Service of Process. This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance
with, the laws of the State of Colorado, without regard to its conflict of
laws rules. Except with respect to any arbitration commenced by Indemnitee
pursuant to Section 10(a), the Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the District Court of
the State of Colorado (the "Colorado Court"), and not in any other state or
federal court in the United States of America or any court in any other
country, (ii) consent to and submit to the exclusive jurisdiction of the
Colorado Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) appoint, to the extent such party is
not a resident of the State of Colorado, irrevocably CT Corporation, as its
agent in the State of Colorado as such party's agent for acceptance of legal
process in connection with any such action or proceeding against such party
with the same legal force and validity as if served upon such party
personally within the State of Colorado, (iv) waive any objection to the
laying of venue of any such action or proceeding in the Colorado Court, and
(v) waive, and agree not to plead or to make, any claim that any such action
or proceeding brought in the Colorado Court has been brought in an improper
or otherwise inconvenient forum.
Section 24. Miscellaneous. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate. All references in
this Agreement to Sections shall be deemed to be references to Sections of
this Agreement unless the context indicates otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
PVAXX Corporation
By: /s/ Xxxxx Xxxxxxx
XXXXX XXXXXXX
Chairman
/s/ Xxxxx Xxxxxxx
XXXXX XXXXXXX
/s/ Xxx Xxxxxxxx
XXX XXXXXXXX
