INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (“Agreement”) is made and entered into as of December
5, 2002 (the “Effective Date”), by Brownshire Holdings, Inc., a Nevada
corporation (the “Company”) and Xxxxxx X. Xxxx (the “Indemnitee”).
RECITALS
WHEREAS,
highly
competent persons are becoming more reluctant to serve publicly-held
corporations as officers and directors 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 such corporations; and
WHEREAS,
the
Board of Directors of the Company (the “Board”) has determined that the
inability to attract and retain 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,
the
Board deems it to be reasonable, prudent and necessary for the Company
contractually to indemnify its officers and directors 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.
AGREEMENT
NOW,
THEREFORE,
in
consideration of the premises and the covenants contained herein, the Company
and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
For
purposes of this Agreement, the following terms shall have the following
meanings:
(a) “Change
of Control” shall have the meaning set forth in Section
5(d).
(b) “Corporate
Status” describes the status of a person who is serving or has served (i) as an
officer or director of the Company, including as a member of any committee
of
the Board, (ii) in any capacity with respect to any employee benefit plan of
the
Company, or (iii) as a director, partner, trustee, officer, employee, or agent
of any other Entity at the request of the Company. For purposes of subsection
(iii) above, an officer or director of the Company who is serving or has served
as a director, partner, trustee, officer, employee or agent of a Subsidiary
shall be deemed to be serving at the request of the Company.
(c) “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.
(d) “Entity”
shall mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other legal
entity.
(e) “Expenses”
shall mean all reasonable fees, costs and expenses incurred in connection with
any Proceeding, including, without limitation, reasonable attorneys’ fees,
disbursements and retainers, fees and disbursements of expert witnesses, private
investigators and professional advisors, court costs, transcript costs, travel
expenses, duplicating, printing and binding costs, telephone and fax
transmission charges, postage, delivery services and other disbursements, and
expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or being or
preparing to be a witness in a Proceeding.
(f) “Indemnifiable
Expenses,” “Indemnifiable Liabilities” and “Indemnifiable Amounts” shall have
the meanings ascribed to those terms in Section
3(a)
below.
(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 Indemnitee (or an affiliate
thereof) in any matter (other than with respect to matters concerning the rights
of Indemnitee under this Agreement), 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 either the Company or Indemnitee
in
an action to determine Indemnitee’s rights under this Agreement.
(h) “Liabilities”
shall mean judgments, damages, liabilities, losses, penalties, excise taxes,
fines, and amounts paid in settlement.
(i) “Proceeding”
shall mean any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation, administrative
hearing, appeal, or any other proceeding, whether civil, criminal,
administrative, arbitrative or investigative, whether formal or informal,
including a proceeding initiated by Indemnitee pursuant to Section
9
of this
Agreement to enforce Indemnitee’s rights hereunder, but excluding a proceeding
pending on or prior to the Effective Date.
(j) “Subsidiary”
shall mean any Entity of which the Company owns (either directly or through
another Subsidiary) either (i) a general partner, managing member or other
similar interest or (ii) 50% or more of the voting power of the voting capital
stock or other voting equity interests of such Entity.
2. Services
of Indemnitee.
In
consideration of the Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director and officer of the Company.
However, this Agreement shall not impose any obligation on Indemnitee or the
Company to continue Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of the parties,
if any.
3. Agreement
to Indemnify.
The
Company agrees to indemnify Indemnitee as follows:
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(a) Proceedings
Other Than Proceedings by or in the Right of the Company.
Subject
to the exceptions set forth in Section
4
below,
if Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company) by reason
of
Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company
against all Expenses and Liabilities actually and reasonably incurred by
Indemnitee in connection with such Proceeding (referred to herein as
“Indemnifiable Expenses” and “Indemnifiable Liabilities,” respectively, and
collectively, as “Indemnifiable Amounts”), if Indemnitee (i) is not liable under
Nevada Revised Statutes Section 78.138, as such statute may be modified,
amended, or superceded from time to time (“Section 78.138”), or (ii) 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
action or proceeding, Indemnitee had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(b) Proceedings
by or in the Right of the Company.
To the
extent permitted by applicable law and subject to the exceptions set forth
in
Section
4
below,
if Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending or completed Proceeding by or in the right of the Company
to
procure a judgment in its favor by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Company against all Indemnifiable
Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with such Proceeding if Indemnitee (i) is not liable under
Section 78.138, or (ii) 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,
however,
that,
if applicable law prohibits such indemnification, 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 court in which such Proceeding shall
have been brought or is pending shall determine that such indemnification may
be
made.
(c) Indemnification
for Expenses as a Witness.
Subject
to the exceptions set forth in Section
4
below,
to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, the Company shall
indemnify Indemnitee against all expenses actually and reasonably incurred
by
Indemnitee in connection therewith.
(d) Settlements.
The
Company shall not be liable to indemnify Indemnitee under the Agreement for
any
amounts paid in settlement of any action or claim effected without its written
consent, which consent shall not be unreasonably withheld or delayed. The
Company shall not settle any action or claim in any manner which would impose
any material penalty or limitation on Indemnitee without Indemnitee’s consent,
which consent may be withheld in Indemnitee’s sole and absolute
discretion.
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4.
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Exceptions
to Indemnification.
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(a) Indemnitee
as Plaintiff.
Except
as provided in Section
9(b)
of this
Agreement and in the next sentence, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to any Proceeding brought by Indemnitee against the Company, any Entity that
it
controls, any director or officer thereof, or any third party, unless the
Company has consented to the initiation of such Proceeding. This Section
4(a)
shall
not apply to counterclaims or affirmative defenses asserted by Indemnitee in
an
action brought against Indemnitee.
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(b) Other
Limitations to Indemnification.
Notwithstanding anything contained in this Agreement or in the Company’s
Articles of Incorporation or Bylaws (as either or both may be amended from
time
to time) to the contrary, the Company shall not be obligated to indemnify or
hold harmless Indemnitee:
(i) if
and to
the extent that such indemnification shall be prohibited by applicable law;
(ii) except
to
the extent the aggregate of losses to be indemnified hereunder exceeds the
amount of the losses for which Indemnitee is indemnified pursuant to any policy
of insurance purchased and maintained by the Company and such amounts are
actually paid to or for the benefit of Indemnitee pursuant to such insurance
policy(ies);
(iii) in
respect to remuneration paid to Indemnitee if it shall be determined by a final
judgment or other final adjudication that such remuneration was in violation
of
law;
(iv) on
account of any suit in which final judgment is rendered against Indemnitee
for
an accounting of profits made from the purchase or sale by Indemnitee of
securities of the Company pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions
of
any law;
(v) if
and to
the extent that a claim in a Proceeding is decided adversely to Indemnitee
based
upon or attributable to Indemnitee gaining in fact any personal profit or
advantage to which Indemnitee was not legally entitled; or
(vi) if
and to
the extent that the indemnifiable event or Indemnitee’s acts or omissions
constituted or arose out of Indemnitee’s fraudulent or dishonest or intentional
misconduct, knowing violation of the law or gross negligence.
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5.
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Procedure
for Payment of Indemnifiable Amounts.
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(a) Written
Request for Indemnification.
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 Company shall, promptly upon receipt of such a request
for
indemnification, advise the Board in writing that Indemnitee has requested
indemnification.
(b) Determination
of Entitlement to Indemnification.
Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section
5(a)
hereof,
a determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case:
4
(i)
if
a Change
in Control shall have occurred, by Independent Counsel in a written opinion
to
the Board, a copy of which shall be delivered to Indemnitee; or
(ii)
if
a Change
of Control shall not have occurred, (A) by the Board by a majority vote of
Disinterested Directors, even though less than a quorum of the Board, or (B)
by
a committee of Disinterested Directors designated by a majority vote of
Disinterested Directors, even though less than a quorum of the Board, or (C)
if
there are no Disinterested Directors, or if the Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee, or (D) if so directed by the Board,
by
the stockholders of the Company.
If
it is
so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee (or on behalf of Indemnitee) shall be made within fifteen (15) days
after such determination. Indemnitee shall cooperate with the person, persons
or
entity making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information that is not
privileged or otherwise protected from disclosure and that is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
Independent Counsel, member of the Board, or stockholder of the Company shall
act reasonably and in good faith in making a determination under this Agreement
of the Indemnitee’s entitlement to indemnification. Any costs or expenses
(including attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall
be borne 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) Selection
of Independent Counsel.
In the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section
5(b)
hereof,
the Independent Counsel shall be selected as provided to this Section
5(c).
If a
Change of Control shall not have occurred, the Board shall select the
Independent Counsel and the Company shall give written notice to Indemnitee
advising Indemnitee of the identity of the Independent Counsel so selected.
If a
Change of Control shall have occurred, Indemnitee shall select the Independent
Counsel and shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either event, Indemnitee or the
Company, as the case may be, may, within 10 days after such written notice
of
selection shall have been given, deliver to the Company or to Indemnitee, as
the
case may be, a written objection to such selection; provided,
however,
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
1
of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is so made and substantiated,
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 twenty (20) days after submission by
Indemnitee of a written request for indemnification pursuant to Section
5(a)
hereof,
no Independent Counsel shall have been selected and not objected to, either
the
Company or Indemnitee may petition a court of the State of Arizona or other
court of competent jurisdiction for resolution of any objection that shall
have
been made by the Company or Indemnitee to the other’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 act as Independent Counsel under Section
5(b)
hereof.
The Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant
to Section
5(b)
hereof,
and the Company shall pay all reasonable fees and expenses incident to the
procedures of Section
9(a),
regardless of the manner in which such Independent Counsel was selected or
appointed. Upon the due commencement of any judicial proceeding pursuant to
Section
9(a)
of this
Agreement, Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
5
(d) Change
of Control.
For
purposes of this Section
5,
a
“Change in Control” shall be deemed to have occurred if and when
(i)
any
person
(as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)), together with all “affiliates”
and “associates” (as defined under Rule 12b-2 promulgated under the Exchange
Act) of such person becomes the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act) directly or indirectly of equity securities of the
Company representing 50 percent or more of the combined voting power of the
Company’s then-outstanding equity securities without the prior approval of at
least a majority of the members of the Board in office immediately prior to
such
person(s) attaining such percentage interest and who are not affiliates or
associates of such person(s), provided
that
this Section
5(d)(i)
shall
not apply to beneficial ownership by (1) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any subsidiary
of
the Company, (2) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of the Company, (3) the Company or any Subsidiary, (4) Indemnitee,
together with all affiliates and associates of Indemnitee, or (5) any person
that, together with any affiliate thereof, is such a 50% beneficial owner as
of
the date hereof, unless after the date of this Agreement such person has
beneficial ownership of less than 50% of the combined voting power of the
Company’s then-outstanding equity securities and thereafter acquires beneficial
ownership of more than 50% of the combined voting power of the Company’s
then-outstanding equity securities; or
(ii)
there
occurs
a proxy contest, or the Company is a party to a merger, consolidation, sale
of
assets, plan of liquidation or other reorganization (in a single transaction
or
a series of transactions) not approved by at least two-thirds of the members
of
the Board then in office, as a consequence of which members of the Board in
office immediately prior to such transaction or event constitute less than
a
majority of the Board thereafter; or
(iii) during
any
period of two consecutive years, other than as a result of an event described
in
Section
5(d)(ii),
individuals who at the beginning of such period constituted the Board (including
for this purpose any new director whose election or nomination for election
by
the Company’s stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the
Board.
6
6. Indemnification
for Expenses of a Party Who is Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting
any
such provision, to the extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a party to a Proceeding and 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
Indemnitee or on Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Agreement, 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.
7. Effect
of Certain Resolutions.
Neither
the settlement or termination of any Proceeding nor the failure of the Company
to award indemnification or to determine that indemnification is payable shall
create an adverse presumption that Indemnitee is not entitled to indemnification
hereunder. In addition, the termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not create a presumption that Indemnitee is liable under Section 78.138 or
did not act in good faith and in a manner which Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company or, with respect
to
any criminal action or proceeding, had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
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8.
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Advancement
of Expenses.
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(a) Conditions.
Subject
to Section
8(b),
the
Company shall pay to Indemnitee all Indemnifiable Expenses incurred by
Indemnitee in connection with any Proceeding, including a Proceeding by or
in
the right of the Company, in advance of the final disposition of such
Proceeding, as the same are incurred. To the extent required by Nevada law,
Indemnitee hereby undertakes to repay the amount of Indemnifiable Expenses
paid
to Indemnitee if it is ultimately determined by a court of competent
jurisdiction that Indemnitee is not entitled under this Agreement to
indemnification with respect to such Expenses. This undertaking is an unlimited
general obligation of Indemnitee.
(b) Procedure
for Advance Payment of Expenses.
Indemnitee shall submit to the Company a written request specifying the
Indemnifiable Expenses for which Indemnitee seeks an advancement under
Section
8(a)
of this
Agreement, together with documentation evidencing that Indemnitee has incurred
such Indemnifiable Expenses. Payment of Indemnifiable Expenses under
Section
8(a)
shall be
made no later than 15 calendar days after the Company’s receipt of such
request.
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9.
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Remedies
of Indemnitee.
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(a) Right
to Petition Court.
In
the
event that Indemnitee makes a request for payment of Indemnifiable Amounts
under
Sections
3
and
5
above or
a request for an advancement of Indemnifiable Expenses under Section
8
above,
and the Company fails to make such payment or advancement in a timely manner
pursuant to the terms of this Agreement, Indemnitee may petition a court of
law
to enforce the Company’s obligations under this Agreement.
7
(b) Expenses. If
Indemnitee is successful under any claim or action brought under Section
9(a),
the
Company agrees to reimburse Indemnitee in full for any Expenses incurred by
Indemnitee in connection with investigating, preparing for, litigating,
defending or settling any action brought by Indemnitee under Section
9(a)
above,
or in connection with any claim or counterclaim brought by the Company in
connection therewith.
(c) Validity
of Agreement.
The
Company shall be precluded from asserting in any Proceeding, including, without
limitation, an action under Section
9(a)
above,
that the provisions of this Agreement are not valid, binding, and enforceable
or
that there is insufficient consideration for this Agreement and shall stipulate
in court that the Company is bound by all the provisions of this
Agreement.
(d) Failure
to Act Not a Defense.
The
failure of the Company (including its Board or any committee thereof) to make
a
determination concerning the permissibility of the payment of Indemnifiable
Amounts or the advancement of Indemnifiable Expenses under this Agreement shall
not be a defense in any action brought under Section
9(a)
above,
and shall not create a presumption that such payment or advancement is not
permissible.
10. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to Indemnitee as follows:
(a) Authority.
The
Company has all necessary power and authority to enter into, and be bound by
the
terms of, this Agreement, and the execution, delivery, and performance of the
undertakings contemplated by this Agreement have been duly authorized by the
Company.
(b) Enforceability.
This
Agreement, when executed and delivered by the Company in accordance with the
provisions hereof, shall be a legal, valid, and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the enforcement of
creditors’ rights generally.
11. Insurance.
To the
extent that the Company maintains an insurance policy or policies providing
officers’ and directors’ liability insurance, 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 officer or director of the
Company.
12. Contract
Rights Not Exclusive.
The
rights to payment of Indemnifiable Amounts and advancement of Indemnifiable
Expenses provided by this Agreement shall be in addition to, but not exclusive
of, any other rights which Indemnitee may have at any time under applicable
law,
the Company’s Articles of Incorporation, Bylaws, or any other agreement, vote of
stockholders or directors (or a committee of directors), or otherwise, both
as
to action in Indemnitee’s official capacity and as to action in any other
capacity as a result of Indemnitee’s Corporate Status.
13. Binding
Nature of Agreement; Successors.
This
Agreement shall be (a) binding upon all successors and assigns of the Company
(including any transferee of all or a substantial portion of the business,
stock
and/or assets of the Company and any direct or indirect successor by merger
or
consolidation or otherwise by operation of law) and (b) binding on and shall
inure to the benefit of the heirs, personal representatives, executors, and
administrators of Indemnitee. This Agreement shall continue for the benefit
of
Indemnitee and such heirs, personal representatives, executors, and
administrators after Indemnitee has ceased to have Corporate
Status.
8
14. Subrogation.
In the
event of any payment of Indemnifiable Amounts under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
contribution or recovery of Indemnitee against other persons, and Indemnitee
shall take, at the request of the Company, all reasonable action necessary
to
secure such rights, including the execution of such documents as are necessary
to enable the Company to bring suit to enforce such rights.
15. 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 which may be subject to
indemnification or advancement of expenses covered under this Agreement.
16. Miscellaneous.
(a) Notices.
All
notices, requests, demands, and other communications required or permitted
under
this Agreement shall be in writing and shall be deemed to have been duly given,
made, and received (i) if personally delivered, on the date of delivery,
(ii) if by facsimile transmission, upon receipt, (iii) if mailed,
three days after deposit in the United States mail, registered or certified,
return receipt requested, postage prepaid or (iv) if by a courier delivery
service providing overnight or “next-day” delivery, on the next business day
after deposit with such service, in each case addressed as follows:
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(1)
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If
to the Company:
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with
a copy given in the manner
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prescribed,
to:
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Suite
200
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Xxxxxx
& Xxxxxxxx LLP
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000
XxXxxxx Xxxxx
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0000
X. Xxxxxxxxx Xxxx, Xxxxx 000
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Xxxxxxxx
Xxxx, XX 00000
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Xxxxxxx,
Xxxxxxx 00000
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Attention:
President
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Attention:
Xxxx X. Xxxxxxxx, Esq.
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Tel:
(000) 000-0000
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Tel:
(000) 000-0000
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Fax:
(000) 000-0000
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Fax:
(000) 000-0000
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e-mail:
xxxxx00@xxx.xxx
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e-mail:
xxx@xxxxxxxxxxxxxx.xxx
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(2) If
to
Indemnitee, at the address set forth below Indemnittee’s name on the signature
page of this Agreement.
Either
party may alter the address to which communications or copies are to be sent
by
giving notice of such change of address in conformity with the provisions of
this Section
16(a)
for the
giving of notice.
(b) Entire
Agreement; Amendments. This
Agreement contains the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, inducements, and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms
hereof. This Agreement may not be modified or amended other than by an agreement
in writing signed by the party or parties to be bound.
9
(c) Controlling
Law; Jurisdiction and Venue.
This
Agreement and all questions relating to its validity, interpretation,
performance, and enforcement shall be governed by and construed, interpreted,
and enforced in accordance with the laws of the State of Nevada, notwithstanding
any Nevada, or other conflict-of-law provisions to the contrary. The Company
and
Indemnitee irrevocably submit, consent, and require that the state and federal
courts located in Maricopa County, Arizona, and the appellate forums for these
courts, shall have sole jurisdiction over any dispute arising under this
Agreement, and the parties hereby consent to the personal jurisdiction of such
courts and to extra-territorial service of process.
(d) Indulgences,
Not Waivers.
Neither
the failure nor any delay on the part of either party to exercise any right,
remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver
of
such right, remedy, power or privilege with respect to any other occurrence.
No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
(e) Section
Headings.
The
titles of sections and subsections contained in this Agreement are for
convenience only. They form no part of this Agreement and they are not to be
used in the construction or interpretation of this Agreement.
(f) Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original as against any party whose signature appears thereon,
and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of the parties
reflected hereon as the signatories. Any photographic or xerographic copy of
this Agreement, with all signatures reproduced on one or more sets of signature
pages, shall be considered for all purposes as if it were an executed
counterpart of this Agreement. Signatures
may be given by facsimile or other electronic transmission, and such signatures
shall be fully binding on the party sending the same.
(g) Provisions
Severable.
The
provisions of this Agreement are independent of and severable from each other,
and no provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other or others of them may be
invalid or unenforceable in whole or in part. Further, if a court of competent
jurisdiction determines that any provision of this Agreement is invalid or
unenforceable as written, such court may interpret, construe, rewrite or revise
such provision, to the fullest extent allowed by law, so as to make it valid
and
enforceable consistent with the intent of the parties.
10
(h) Construction.
Each
party hereto acknowledges that it was represented by legal counsel (or had
the
opportunity to be represented by legal counsel) in connection with this
Agreement and that such party and his, her or its counsel have reviewed and
revised this Agreement, or have had an opportunity to do so, and that any rule
of construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement
or
any amendments or any Exhibits or Schedules hereto or thereto.
[Signature
page follows.]
11
IN
WITNESS WHEREOF,
the
parties hereto have executed this Indemnification Agreement as of the Effective
Date.
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COMPANY:
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BROWNSHIRE
HOLDINGS, INC.
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
Xxxxxx X. Xxxxxxxxx
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Title:
President
|
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INDEMNITEE:
|
||
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By:
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/s/
Xxxxxx X. Xxxx
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Name:
Xxxxxx X. Xxxx
|
||
|
Address:
Xxxx Xxxxxx Xxx 0000
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Xxxxxxxx
Xxxx, XX 00000
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|
Facsimile
No.:(000) 000-0000
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12
