Exhibit 10.11
INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of March _, 2006, is made
by and between Quest Resource Corporation, a Nevada corporation (the
"Corporation") and _____________ (the "Indemnitee").
RECITALS
A. The Corporation recognizes that competent and experienced persons are
increasingly reluctant to serve or to continue to serve as directors or officers
of corporations unless they are protected by comprehensive liability insurance
or indemnification, or both, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to the fact
that the exposure frequently bears no reasonable relationship to the
compensation of such directors and officers;
B. The statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous, or conflicting, and
therefore fail to provide such directors and officers with adequate, reliable
knowledge of legal risks to which they are exposed or information regarding the
proper course of action to take;
C. The Corporation and Indemnitee recognize that plaintiffs often seek
damages in such large amounts and the costs of litigation may be so enormous
(whether or not the case is meritorious), that the defense and/or settlement of
such litigation is often beyond the personal resources of directors and
officers;
D. The Corporation believes that it is unfair for its directors and
officers to assume the risk of huge judgments and other expenses which may occur
in cases in which the director or officer received no personal profit and in
cases where the director or officer was not culpable;
E. The Corporation, after reasonable investigation, has determined that
the liability insurance coverage presently available to the Corporation may be
inadequate in certain circumstances to cover all possible exposure for which
Indemnitee should be protected. The Corporation believes that the interests of
the Corporation and its stockholders would best be served by a combination of
such insurance and the indemnification by the Corporation of the directors and
officers of the Corporation;
F. The Corporation's Restated Articles of Incorporation require the
Corporation to indemnify its directors and officers to the fullest extent
permitted by the Nevada Revised Statutes. The Restated Articles of Incorporation
expressly provide that the indemnification provisions set forth therein are not
exclusive, and contemplate that contracts may be entered into between the
Corporation and its directors and officers with respect to indemnification;
G. Section 78.7502 of the Nevada Revised Statutes ("Section 78.7502"),
under which the Corporation is organized, empowers the Corporation to indemnify
its officers, directors, employees and agents by agreement and to indemnify
persons who serve, at the request of the Corporation, as the directors,
officers, employees or agents of other corporations or enterprises, and Section
78.751 of the Nevada Revised Statutes expressly provides that the
indemnification provided by Section 78.7502 is not exclusive;
H. The Board of Directors has determined that contractual indemnification
as set forth herein is not only reasonable and prudent but also promotes the
best interests of the Corporation and its stockholders;
I. The Corporation desires and has requested Indemnitee to serve or
continue to serve as a director or officer of the Corporation free from undue
concern for unwarranted claims for damages arising out of or related to such
services to the Corporation; and
J. Indemnitee is willing to serve, continue to serve or to provide
additional service for or on behalf of the Corporation on the condition that he
is furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Generally. To the fullest extent permitted by the laws of the
State of Nevada:
(a) The Corporation shall indemnify Indemnitee if Indemnitee was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee is or was or has agreed to
serve at the request of the Corporation as a director, officer, employee or
agent of the Corporation, or while serving as a director or officer of the
Corporation, is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent (which, for purposes
hereof, shall include a trustee, partner or manager or similar capacity) of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity (each, a "Proceeding").
(b) The indemnification provided by this Section 1 shall be from and
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection with such Proceeding and any appeal therefrom, but shall
only be provided if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had no reasonable
cause to believe Indemnitee's conduct was unlawful or if the Indemnitee is not
liable to the Corporation pursuant to Section 78.138 of the Nevada Revised
Statutes.
(c) Notwithstanding the foregoing provisions of this Section 1, in
the case of any threatened, pending or completed Proceeding by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Corporation,
or while serving as a director or officer of the Corporation, is or was serving
or has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation or for amounts paid in settlement to
the Corporation, unless, and only to the extent that the District Court of the
State of Nevada or the court in which such Proceeding was brought or other court
of competent jurisdiction shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such expenses
which the District Court of the State of Nevada or such other court shall deem
proper.
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(d) The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee is liable pursuant to
Section 78.138 of the Nevada Revised Statutes 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 Corporation, or with respect to any criminal Proceeding,
had reasonable cause to believe that Indemnitee's conduct was unlawful.
Section 2. Successful Defense; Partial Indemnification.
(a) To the extent that Indemnitee has been successful on the merits
or otherwise in defense of any Proceeding referred to in Section 1 hereof or in
defense of any claim, issue or matter therein, Indemnitee shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith. For purposes of this Agreement and without limiting the
foregoing, if any Proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition being
adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an
adjudication that Indemnitee did not act in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation, and (v) with respect to any criminal Proceeding, an
adjudication that Indemnitee had reasonable cause to believe Indemnitee's
conduct was unlawful, Indemnitee shall be considered for the purposes hereof to
have been wholly successful with respect thereto.
(b) If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Corporation for some or a portion of the expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with any Proceeding, or in defense of any claim, issue or matter
therein, and any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion
of such expenses (including attorneys' fees), judgments, fines or amounts paid
in settlement to which Indemnitee is entitled.
Section 3. Advance Payment of Expenses; Notification and Defense of Claim.
(a) The Corporation shall advance all expenses actually and
reasonably incurred by Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal Proceeding referenced in Section 1
hereof (but not amounts actually paid in settlement of any such Proceeding).
Indemnitee hereby undertakes to repay such amounts advanced only if, and to the
extent that, it shall ultimately be determined by the court hearing the
Proceeding that Indemnitee is not entitled to be indemnified by the Corporation
as authorized hereby. The advances to be made hereunder shall be paid by the
Corporation to Indemnitee within 30 days following receipt of a written request
therefor by the Corporation from the Indemnitee.
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(b) Indemnitee shall, as a condition precedent to his right to be
indemnified under this Agreement, give the Corporation notice in writing as soon
as practicable of any claim made against Indemnitee for which indemnification
will or could be sought under this Agreement. Notice to the Corporation shall be
directed to the Chief Executive Officer of the Corporation at the address shown
on the signature page of this Agreement (or such other address as the
Corporation shall designate in writing to Indemnitee). Notice shall be deemed
received three business days after the date postmarked if sent by domestic
certified or registered mail, properly addressed; otherwise notice shall be
deemed received when such notice shall actually be received by the Corporation.
In addition, Indemnitee shall give the Corporation such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power.
(c) Any indemnification and advances provided for in Section 1 and
this Section 3 shall be made no later than 30 days after receipt of the written
request of Indemnitee. If a claim under this Agreement, under any statute, or
under any provision of the Corporation's Restated Articles of Incorporation or
Bylaws providing for indemnification, is not paid in full by the Corporation
within 30 days after a written request for payment thereof has first been
received by the Corporation, Indemnitee may, but need not, at any time
thereafter bring an action against the Corporation to recover the unpaid amount
of the claim and, subject to Section 14 of this Agreement, Indemnitee shall also
be entitled to be paid for the reasonable expenses (including reasonable
attorneys' fees) of bringing such action. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
connection with any Proceeding in advance of its final disposition) that
Indemnitee has not met the standards of conduct which make it permissible under
applicable law for the Corporation to indemnify Indemnitee for the amount
claimed. However, Indemnitee shall be entitled to receive interim payments of
expenses pursuant to Section 3(a) unless and until such defense may be finally
adjudicated by court order or judgment from which no further right of appeal
exists. It is the parties' intention that if the Corporation contests
Indemnitee's right to indemnification, the question of Indemnitee's right to
indemnification shall be for the court hearing the Proceeding to decide, and
neither the failure of the Corporation (including its Board of Directors, any
committee of the Board of Directors, independent legal counsel, or its
stockholders) to have made a determination that indemnification of Indemnitee is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct required by applicable law, nor an actual determination by the
Corporation (including its Board of Directors, any committee of the Board of
Directors, independent legal counsel, or its stockholders) that Indemnitee has
not met such applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of conduct.
(d) In the event the Corporation shall be obligated to pay the
expenses of Indemnitee with respect to a Proceeding, as provided in this
Agreement, the Corporation, if appropriate, shall be entitled to assume the
defense of such Proceeding, with counsel reasonably acceptable to Indemnitee,
upon the delivery to Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Corporation, the Corporation will not be liable
to Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same Proceeding, provided that (1) Indemnitee
shall have the right to employ Indemnitee's own counsel in such Proceeding at
Indemnitee's expense and (2) if (i) the employment of counsel by Indemnitee has
been previously authorized in writing by the Corporation, (ii) counsel to the
Corporation or Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position, or reasonably believes that a conflict is
likely to arise, on any significant issue between the Corporation and Indemnitee
in the conduct of any such defense or (iii) the Corporation shall not, in fact,
have employed counsel to assume the defense of such Proceeding, then the fees
and expenses of Indemnitee's counsel shall be at the expense of the Corporation,
except as otherwise expressly provided by this Agreement. The Corporation shall
not be entitled, without the consent of Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which counsel for
the Corporation or Indemnitee shall have reasonably made the conclusion provided
for in clause (ii) above.
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(e) Notwithstanding any other provision of this Agreement to the
contrary, to the extent that Indemnitee is, by reason of Indemnitee's corporate
status with respect to the Corporation or any corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which Indemnitee is or
was serving or has agreed to serve at the request of the Corporation, a witness
or otherwise participates in any Proceeding at a time when Indemnitee is not a
party in the Proceeding, the Corporation shall indemnify Indemnitee against all
expenses (including attorneys' fees) actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection therewith.
Section 4. Insurance and Subrogation.
(a) The Corporation may purchase and maintain insurance on behalf of
Indemnitee who is or was or has agreed to serve at the request of the
Corporation as a director or officer of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against, and incurred by,
Indemnitee or on Indemnitee's behalf in any such capacity, or arising out of
Indemnitee's status as such, whether or not the Corporation would have the power
to indemnify Indemnitee against such liability under the provisions of this
Agreement. If the Corporation has such insurance in effect at the time the
Corporation receives from Indemnitee any notice of the commencement of a
Proceeding, the Corporation shall give prompt notice of the commencement of such
Proceeding to the insurers in accordance with the procedures set forth in the
policy. The Corporation shall thereafter take all necessary or desirable action
to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable
as a result of such Proceeding in accordance with the terms of such policy.
(b) In the event of any payment by the Corporation under this
Agreement, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee with respect to any insurance
policy, who shall execute all papers required and take all action necessary to
secure such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights in accordance with
the terms of such insurance policy. The Corporation shall pay or reimburse all
expenses actually and reasonably incurred by Indemnitee in connection with such
subrogation.
(c) The Corporation shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) if and to the extent that Indemnitee has otherwise actually
received such payment under this Agreement or any insurance policy, contract,
agreement or otherwise.
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Section 5. Certain Definitions. For purposes of this Agreement, the
following definitions shall apply:
(a) The term "by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Corporation, or while serving as a
director or officer of the Corporation, is or was serving or has agreed to serve
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise" shall be broadly construed and shall include, without
limitation, any actual or alleged act or omission to act.
(b) The term "Corporation" shall include, without limitation and in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, shall stand in
the same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
(c) The term "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(d) The term "expenses" shall be broadly and reasonably construed
and shall include, without limitation, all direct and indirect costs of any type
or nature whatsoever (including, without limitation, all attorneys' fees and
related disbursements, appeal bonds, other out-of-pocket costs and reasonable
compensation for time spent by Indemnitee for which Indemnitee is not otherwise
compensated by the Corporation or any third party, provided that the rate of
compensation and estimated time involved is approved by the Board, which
approval shall not be unreasonably withheld), actually and reasonably incurred
by Indemnitee in connection with either the investigation, defense or appeal of
a Proceeding or establishing or enforcing a right to indemnification under this
Agreement, Section 78.7502 of the Nevada Revised Statutes or otherwise.
(e) The term "judgments, fines and amounts paid in settlement" shall
be broadly construed and shall include, without limitation, all direct and
indirect payments of any type or nature whatsoever (including, without
limitation, all penalties and amounts required to be forfeited or reimbursed to
the Corporation), as well as any penalties or excise taxes assessed on a person
with respect to an employee benefit plan).
(f) The term "other enterprises" shall include, without limitation,
employee benefit plans.
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(g) The term "serving at the request of the Corporation" shall
include, without limitation, any service as a director, officer, employee or
agent of the Corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries.
(h) A person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Agreement.
Section 6. Limitation on Indemnification. Notwithstanding any other
provision herein to the contrary, the Corporation shall not be obligated
pursuant to this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses
to Indemnitee with respect to an Proceeding (or part thereof) initiated by
Indemnitee, except with respect to an Proceeding brought to establish or enforce
a right to indemnification (which shall be governed by the provisions of Section
6(b) of this Agreement), unless such Proceeding (or part thereof) was authorized
or consented to by the Board of Directors of the Corporation.
(b) Action for Indemnification. To indemnify Indemnitee for any
expenses incurred by Indemnitee with respect to any Proceeding instituted by
Indemnitee to enforce or interpret this Agreement, unless Indemnitee is
successful in establishing Indemnitee's right to indemnification in such
Proceeding, in whole or in part, or unless and to the extent that the court in
such Proceeding shall determine that, despite Indemnitee's failure to establish
their right to indemnification, Indemnitee is entitled to indemnity for such
expenses; provided, however, that nothing in this Section 6(b) is intended to
limit the Corporation's obligation with respect to the advancement of expenses
to Indemnitee in connection with any such Proceeding instituted by Indemnitee to
enforce or interpret this Agreement, as provided in Section 3 hereof.
(c) Section 16 Violations. To indemnify Indemnitee on account of any
Proceeding with respect to which final judgment is rendered against Indemnitee
for payment or an accounting of profits arising from the purchase or sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
(d) Non-compete and Non-disclosure. To indemnify Indemnitee in
connection with Proceedings or claims involving the enforcement of non-compete
and/or non-disclosure agreements or the non-compete and/or non-disclosure
provisions of employment, consulting or similar agreements the Indemnitee may be
a party to with the Corporation, or any subsidiary of the Corporation or any
other applicable foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, if any.
Section 7. Certain Settlement Provisions. The Corporation shall have no
obligation to indemnify Indemnitee under this Agreement for amounts paid in
settlement of any Proceeding without the Corporation's prior written consent,
which shall not be unreasonably withheld. The Corporation shall not settle any
Proceeding in any manner that would impose any fine or other obligation on
Indemnitee without Indemnitee's prior written consent, which shall not be
unreasonably withheld.
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Section 8. Savings Clause. If any provision or provisions of this
Agreement shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify Indemnitee as to
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any Proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the full extent permitted by any applicable portion
of this Agreement that shall not have been invalidated and to the full extent
permitted by applicable law.
Section 9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for herein
is held by a court of competent jurisdiction to be unavailable to Indemnitee in
whole or in part, it is agreed that, in such event, the Corporation shall, to
the fullest extent permitted by law, contribute to the payment of Indemnitee's
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any Proceeding, whether civil,
criminal, administrative or investigative, in an amount that is just and
equitable in the circumstances, taking into account, among other things,
contributions by other directors and officers of the Corporation or others
pursuant to indemnification agreements or otherwise; provided, that, without
limiting the generality of the foregoing, such contribution shall not be
required where such holding by the court is due to (i) the failure of Indemnitee
to meet the standard of conduct set forth in Section 1 hereof, or (ii) any
limitation on indemnification set forth in Section 4(c), 6 or 7 hereof.
Section 10. Form and Delivery of Communications. Any notice, request or
other communication required or permitted to be given to the parties under this
Agreement shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified or
registered mail, return receipt requested, postage prepaid, to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice):
If to the Corporation:
Quest Resource Corporation
0000 X. Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: Corporate Secretary
Facsimile:
If to Indemnitee:
--------------------------
--------------------------
--------------------------
Facsimile:
Section 11. Subsequent Legislation. If the Nevada Revised Statutes are
amended after adoption of this Agreement to expand further the indemnification
permitted to directors or officers, then the Corporation shall indemnify
Indemnitee to the fullest extent permitted by the Nevada Revised Statutes, as so
amended.
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Section 12. Nonexclusivity. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which Indemnitee may have under any provision of
law, the Corporation's Restated Articles of Incorporation or Bylaws, in any
court in which a Proceeding is brought, the vote of the Corporation's
stockholders or Disinterested Directors, other agreements or otherwise, and
Indemnitee's rights hereunder shall continue after Indemnitee has ceased acting
as an agent of the Corporation and shall inure to the benefit of the heirs,
executors and administrators of Indemnitee. However, no amendment or alteration
of the Corporation's Restated Articles of Incorporation or Bylaws or any other
agreement shall adversely affect the rights provided to Indemnitee under this
Agreement
Section 13. Enforcement. The Corporation shall be precluded from asserting
in any judicial Proceeding that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. The Corporation agrees that
its execution of this Agreement shall constitute a stipulation by which it shall
be irrevocably bound in any court of competent jurisdiction in which a
Proceeding by Indemnitee for enforcement of his rights hereunder shall have been
commenced, continued or appealed, that its obligations set forth in this
Agreement are unique and special, and that failure of the Corporation to comply
with the provisions of this Agreement will cause irreparable and irremediable
injury to Indemnitee, for which a remedy at law will be inadequate. As a result,
in addition to any other right or remedy Indemnitee may have at law or in equity
with respect to breach of this Agreement, Indemnitee shall be entitled to
injunctive or mandatory relief directing specific performance by the Corporation
of its obligations under this Agreement.
Section 14. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys' fees, actually and reasonably incurred by Indemnitee with respect to
such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were not made in good faith or were frivolous. In the
event of an action instituted by or in the name of the Corporation under this
Agreement or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys' fees, actually and reasonably incurred by Indemnitee in defense of
such action (including with respect to Indemnitee's counterclaims and
cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee's material defenses to such action were not
made in good faith or were frivolous.
Section 15. Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent now or hereafter permitted
by law.
Section 16. Entire Agreement. This Agreement and the documents expressly
referred to herein constitute the entire agreement between the parties hereto
with respect to the matters covered hereby, and any other prior or
contemporaneous oral or written understandings or agreements with respect to the
matters covered hereby are expressly superceded by this Agreement.
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Section 17. 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 provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 18. Successor and Assigns. All of the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and their respective successors, assigns,
heirs, executors, administrators and legal representatives. The Corporation
shall require and cause any direct or indirect successor (whether by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Corporation, by written agreement in form and substance
reasonably satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Corporation
would be required to perform if no such succession had taken place.
Section 19. Service of Process and Venue. For purposes of any claims or
Proceedings to enforce this agreement, the Corporation consents to the
jurisdiction and venue of any federal or state court of competent jurisdiction
in the states of Nevada and Oklahoma, and waives and agrees not to raise any
defense that any such court is an inconvenient forum or any similar claim.
Section 20. Supercedes Prior Agreement. This Agreement supercedes any
prior indemnification agreement between Indemnitee and the Corporation or its
predecessors.
Section 21. Governing Law. This Agreement shall be governed exclusively by
and construed according to the laws of the State of Nevada, as applied to
contracts between Nevada residents entered into and to be performed entirely
within Nevada. If a court of competent jurisdiction shall make a final
determination that the provisions of the law of any state other than Nevada
govern indemnification by the Corporation of its officers and directors, then
the indemnification provided under this Agreement shall in all instances be
enforceable to the fullest extent permitted under such law, notwithstanding any
provision of this Agreement to the contrary.
Section 22. Employment Rights. Nothing in this Agreement is intended to
create in Indemnitee any right to employment or continued employment.
Section 23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument, notwithstanding that
both parties are not signatories to the original or same counterpart.
Section 24. Headings. The section and subsection headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered to be effective as of the date first above written.
QUEST RESOURCE CORPORATION
By _______________________________________
Name:
Title:
INDEMNITEE:
By _______________________________________
Name:
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