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EXHIBIT 6.4
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of ________,
____, between NuPro Innovations Inc., a Delaware corporation ("Corporation"),
and _____________, an advisor and consultant to the Corporation ("Advisor").
RECITALS:
WHEREAS, Advisor is an advisor and consultant of the Corporation,
serving as a member of the Corporation's Advisory Committee (the "Advisory
Committee"), and performs a valuable service in such capacity for the
Corporation;
WHEREAS, the Corporation, as authorized by the Bylaws of the
Corporation and by specific action of its Board of Directors and by this
contract, has elected to provide for the indemnification of the members of the
Corporation's Advisory Committee, and
WHEREAS, in order to induce Advisor to serve as a member of the
Advisory Committee, the Corporation has determined and agreed to enter into this
contract with Advisor;
NOW, THEREFORE, in consideration of Advisor's service as a
participating member of the Advisory Committee, and intending to be legally
bound thereby, the Corporation and the Advisor hereby agree as follows:
1. Indemnification. Except as otherwise provided below, the Corporation
hereby agrees to hold harmless and indemnify Advisor against any and all
expenses, including attorney's fees, witness fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by Advisor in connection
with any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including an action by or in
the right of the Corporation) to which Advisor is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact that Advisor
is, was or at any time becomes an employee serving as a member of the Advisory
Committee, or by reason of any action taken by him or any inaction on his part
while Acting in any such capacity.
2. Limitations on Indemnity. The Corporation shall not indemnify
Advisor for the following:
(A) The Corporation will not indemnify the Advisor to the
extent that he is reimbursed from insurance proceeds or from any other party,
except to the extent the aggregate of the expenses incurred by Advisor exceeds
the sum of such compensation;
(B) In respect to remuneration paid to Advisor, if it shall be
determined by a final adjudication that such remuneration was in violation of
the law;
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(C) On account of any suit in which judgment is rendered
against Advisor for an accounting of profits made from the purchase or sale by
Advisor of securities of the Corporation pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions
of any federal, state or local statutory law, or on account of any suit in which
a final judgment is rendered against the Advisor for violation of Section 10(b)
or Rule 10b(5) of the Securities and Exchange Act of 1934, as amended, or
similar provisions of any federal, state or local law;
(D) On account of Advisor's conduct which is finally adjudged
to have been knowingly fraudulent or deliberately dishonest or to constitute
willful misconduct;
(E) On account of Advisor's conduct which is the subject of an
action, suit or proceeding described in Section 6(C)(ii) hereof;
(F) On account of any action, claim or proceeding (other than
a proceeding referred to in Section 7(B) hereof) initiated by the Advisor unless
such action, claim or proceeding was authorized in the specific case by action
of the Board of Directors of the Corporation; or
(G) If a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in this
respect, both Corporation and Advisor have been advised that the Securities and
Exchange Commission believes that indemnification for liabilities arising under
the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication).
3. Contribution. If the indemnification provided in Section 1 hereof is
unavailable by reason of a court decision described in Section 2(G) hereof based
on grounds other than any of those set forth in paragraphs (B) through (F) of
Section 2 hereof, then in respect of any threatened, pending or completed
action, suit or proceeding in which the Corporation is jointly liable with
Advisor (or would be if joined in such action, suit or proceeding), the
Corporation shall contribute to the amount of expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Advisor in such proportion as is appropriate to
reflect (i) the relative benefits received by the Corporation on the one hand
and Advisor on the other hand from the transaction from which such action, suit
or proceeding arose, and (ii) the relative fault of the Corporation on the one
hand and of Advisor on the other in connection with the events which resulted in
such expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the Corporation on the
one hand and of Advisor on the other shall be determined by reference to, among
other things, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such expenses,
judgments, fines or settlement amounts. Corporation agrees that it would not be
just and equitable if contribution pursuant to this Section 3 were determined by
pro rata allocation or any other method of allocation which does not take
account of the foregoing equitable considerations.
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4. Continuation of Obligations. All agreements and obligations of the
Corporation, its successors and assigns, contained herein shall continue during
the period Advisor is a consultant serving as a member of the Advisory Committee
of the Corporation and shall continue thereafter so long as Advisor shall be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that Advisor was serving as a member of the Advisory
Committee of the Corporation.
5. Notification and Defense of Claim. The Advisor, as a condition
precedent to his right to be indemnified under this Agreement, shall give the
Corporation prompt notice in writing of any claim for which indemnity will or
could be sought under this agreement, not later than thirty (30) days after
receipt by Advisor of notice of the commencement of any action, suit or
proceeding. Notice to the Corporation for this or any other purpose under this
Agreement shall be directed to Xxxx X. Xxxxxxxx, NuPro Innovations Inc., 000
Xxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx, Xxxxxx, X0X 0X0. With respect to any such
action, suit or proceeding as to which Advisor notifies the Corporation of the
commencement thereof:
(A) The Corporation will be entitled to participate therein at
its own expense;
(B) Except as otherwise provided below, to the extent that it
may wish, the Corporation jointly with arty other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Advisor. After notice from the Corporation to Advisor of its
election so as to assume the defense thereof, the Corporation will not be liable
to Advisor under this Agreement for arty legal or other expenses subsequently
incurred by Advisor in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Advisor 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 Advisor unless (i)
the employment of counsel by Advisor has been authorized by the Corporation,
(ii) Advisor shall have reasonably concluded that there may be a conflict of
interest between the Corporation and Advisor 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 Advisor's separate 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 Advisor
shall have made the conclusion provided for in (ii) above; and
(C) The Corporation shall not be liable to indemnify Advisor
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Corporation shall be permitted to
settle any action except that it shall not settle any action or claim in any
manner which would impose any penalty or limitation on Advisor without Advisor's
written consent. Neither the Corporation nor Advisor will unreasonably withhold
its consent to any proposed settlement.
(D) The Advisor shall give the Corporation such information
and cooperation as he may reasonably require and as shall be within the
Advisor's power.
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6. Advancement and Repayment of Expenses.
(A) In the event that Advisor employs his own counsel pursuant
to Section 5(B)(i) through (ii) above, the Corporation shall advance to Advisor,
prior to any final disposition of any threatened or pending action, suit or
proceeding, whether civil, criminal administrative or investigative, any and all
reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding within ten (10)
days after receiving copies of invoices presented to Advisor for such expenses.
(B) Advisor agrees that Advisor will reimburse Corporation for
all reasonable expenses paid by the Corporation in defending any civil or
criminal action, suit or proceeding against Advisor in the event and only to the
extent it shall be ultimately determined by it final judicial decision (from
which there is no right of appeal) that Advisor is not entitled, under the
provisions of the Act, this Agreement or otherwise, to be indemnified by the
Corporation for such expenses.
(C) Notwithstanding the foregoing, the Corporation shall not
be required to advance such expenses to Advisor if Advisor (i) commences any
action, suit or proceeding as a plaintiff unless such advance is specifically
approved by a majority of the Board of Directors or (ii) is a party to an
action, suit or proceeding brought by the Corporation and approved by a majority
of the Board which alleges willful misappropriation of corporate assets by
Advisor, disclosure of confidential information in violation of Advisor's
fiduciary or contractual obligations to the Corporation, or any other willful
and deliberate breach in bad faith of Advisor's duty to the Corporation or its
stockholders.
7. Enforcement.
(A) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligation imposed on the
Corporation hereby in order to induce Advisor to serve on the Advisory Committee
of the Corporation, and acknowledges that Advisor is relying upon this Agreement
in continuing in such capacity.
(B) In the event Advisor is required to bring any action to
enforce rights or to collect moneys due under this Agreement and is successful
in such action, the Corporation shall reimburse Advisor for all Advisor's
reasonable fees and expenses in bringing and pursuing such action.
8. Subrogation. In the event of payment to the Advisor under this
Agreement, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Advisor, who shall execute all documents
required and shall do all acts that may be necessary to secure such rights and
to enable the Corporation effectively to bring suit to enforce such rights.
9. Non-Exclusivity of Rights. The rights conferred on Advisor by this
Agreement shall not be exclusive of any other rights which Advisor may have or
hereafter acquire under any statute, provision of the Corporation's Articles of
Incorporation or Bylaws, agreement, vote of
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stockholders or directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding office.
10. Survival of Rights. The rights conferred on Advisor by this
Agreement shall continue after Advisor has ceased to be an advisor or consultant
of the Corporation and shall inure to the benefit of Advisor's heirs, executors
and administrators.
11. Separability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any or
all of the provisions hereof shall be held to be invalid or unenforceable for
any reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof or the obligation of the
Corporation to indemnify the Advisor to the full extent provided by the Act.
12. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
13. Binding Effect. This Agreement shall be binding upon Advisor and
upon the Corporation, its successors and assigns, and shall insure to the
benefit of Advisor, his heirs, personal representative and assigns and to the
benefit of the Corporation, its successors and assigns.
14. Effective Date. The Corporation's indemnity obligations hereunder
shall be applicable to any and all claims made after the effective date of this
Agreement, regardless of when the facts upon which such claims are based
occurred.
15. Gender: The use of the masculine gender in this Agreement is for
convenience only and shall be deemed to include the feminine.
16. Miscellaneous. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Advisor and the Corporation. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement on and as of the day first above written.
NUPRO INNOVATIONS INC.
a Delaware corporation
By:_____________________________________
Print Name: Xxxx X. Xxxxxxxx
Title: President and CEO
ADVISOR
________________________________________
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