FORM OF INDEMNIFICATION AGREEMENT
EXHIBIT
10.2
FORM
OF INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is entered into as of mmm dd, yyyy
by and between Kings Road Entertainment, Inc., a Delaware corporation (the
“Corporation”), and XYZ (“Indemnitee”), based on the following:
Premises
A. The
Restated Certificate of Incorporation of the Corporation (the “Articles”)
provides for the limited indemnification of the Corporation’s directors and the
Bylaws (the “Bylaws”) provides for indemnification of the Corporation’s
directors and officers to the fullest extent permitted by any applicable and
controlling Delaware law, statute, rule, decision, or finding (collectively,
“Delaware Law”) and contemplate that contracts and other arrangements may be
entered into respecting indemnification of officers and directors.
B. The
parties recognize the difficulty in obtaining liability insurance for the
Corporation’s directors, officers, employees, stockholders, controlling persons,
agents, and fiduciaries, the significant increases in the cost of such
insurance, and the general reductions in the coverage of such insurance.
Furthermore, the parties further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, controlling
persons, stockholders, agents, and fiduciaries to expensive litigation risks
at
the same time as the availability and coverage of liability insurance have
been
severely limited.
C. Indemnitee
does not regard the current protection available under the Articles, Bylaws,
and
insurance as adequate under the present circumstances, and Indemnitee and other
directors, officers, employees, stockholders, controlling persons, agents,
and
fiduciaries of the Corporation may not be willing to serve in such capacities
without additional protection. Moreover, the Corporation (i) desires to
attract and retain the involvement of highly-qualified persons, such as
Indemnitee, to serve the Corporation and, in part, in order to induce Indemnitee
to be involved with the Corporation, (ii) wishes to provide for the
indemnification and advancing of expenses to Indemnitee to the maximum extent
permitted by law, and (iii) wishes to assure Indemnitee that there will be
increased certainty of adequate protection in the future.
D. In
addition to any insurance purchased by the Corporation on behalf of Indemnitee,
it is reasonable, prudent, and necessary for the Corporation to obligate itself
contractually to indemnify Indemnitee so that he may remain free from undue
concern that he will not be adequately protected both during his service as
an
executive officer and a director of the Corporation and following any
termination of such service.
E. This
Agreement is a supplement to and in furtherance of the Articles and Bylaws
and
shall not be deemed a substitute therefor or to abrogate any rights of
Indemnitee thereunder.
F. The
directors of the Corporation have duly approved this Agreement and the
indemnification provided herein with the express recognition that the
indemnification arrangements provided herein exceed that which the Corporation
would be required to provide pursuant to Delaware Law.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Corporation and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
As used
in this Agreement:
(a) The
term
“Indemnifiable Matter” means any event, occurrence, status, or condition that
takes place either prior to or after the execution of this Agreement, including
any threatened, pending, or completed action, suit, proceeding, or alternative
dispute resolution activity, whether brought by or in the right of the
Corporation or otherwise and whether of a civil, criminal, administrative,
or
investigative nature, in which Indemnitee was, is, or believes he might be
involved as a party, witness, or otherwise (except any of the foregoing
initiated by Indemnitee pursuant to section 15 to enforce Indemnitee’s rights
under this Agreement): (i) by reason of the fact, in whole or in part, that
Indemnitee is or was actually or allegedly a director, officer, agent, or
advisor of the Corporation; (ii) by reason of any action actually or
allegedly taken by him or of any inaction or omission on his part while acting
as a director, officer, agent, or advisor of the Corporation; (iii) by
reason of the registration, offer, sale, purchase, or ownership of any
securities of the Corporation; (iv) by reason of any duty owed to,
respecting, or in connection with the Corporation; or (v) by reason of the
fact, in whole or in part, that he is or was actually or allegedly serving
at
the request of the Corporation as a director, officer, employee, agent, or
advisor of another corporation, partnership, joint venture, trust, limited
liability company, or other entity or enterprise; in each case, whether or
not
he is acting or serving in any such capacity at the time any loss, liability,
or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement and even though Indemnitee may have ceased to serve in
such
capacity.
(b) The
term
“Losses” means (i) any and all losses, claims, damages, expenses,
liabilities, judgments, fines, penalties, and actions in respect thereof, as
they are incurred, against Indemnitee in connection with an Indemnifiable
Matter; (ii) amounts paid by Indemnitee in settlement of an Indemnifiable
Matter; (iii) any indirect, consequential, or incidental damages suffered
or incurred by Indemnitee; and (iv) all attorneys’ fees and disbursements,
accountants’ fees and disbursements, private investigation fees and
disbursements, retainers, court costs, payments of attachment, appeal, or other
bonds or security, transcript costs, fees of experts, fees and expenses of
witnesses, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses reasonably incurred by or for Indemnitee in connection with
prosecuting, defending, preparing to prosecute or defend, investigating,
appealing, or being or preparing to be a witness in any threatened or pending
Indemnifiable Matter or establishing Indemnitee’s right or entitlement to
indemnification for any of the foregoing.
(c) Reference
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 Corporation” shall
include any service as a director, officer, employee, agent, or advisor with
respect to an employee benefit plan, its participants, or beneficiaries; and
a
person who acted in good faith and in a manner he reasonably believed to be
in
the interests 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.
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(d) The
term
“Indemnitee” shall include the Indemnitee named in the first paragraph of this
Agreement and such Indemnitee’s actual or alleged alter egos, spouse, family
members, and corporations, partnerships, limited liability companies, trusts,
and other enterprises or entities of any form whatsoever under the control
of
any of the foregoing, and the property of all of the foregoing. The term
“control” (including the terms “controlling,” “controlled by,” and “under common
control with”) means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a person or entity,
whether through the ownership of voting securities, by contract, or otherwise,
as interpreted under the Securities Act of 1933 or the Securities Exchange
Act
of 1934 (“Exchange Act”).
(e) The
term
“substantiating documentation” shall mean copies of bills or invoices for costs
incurred by or for Indemnitee, or copies of court or agency orders, decrees,
or
settlement agreements, as the case may be, accompanied by a declaration, which
need not be notarized, from Indemnitee that such bills, invoices, court or
agency orders, decrees, or settlement agreements represent costs or liabilities
meeting the definition of “Losses” herein.
(f) Except
as
provided in section 14, the term “Independent Counsel” shall mean an attorney,
law firm, or member of a law firm, who (or which) is licensed to practice law
in
the state of Delaware or such other place in which the Corporation has an
Office, and is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent (i) the
Corporation or Indemnitee in any other matter material to either such party;
or
(ii) any other party to the Indemnifiable Matter 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 Corporation or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. From time to time, the Corporation may
select and preapprove the names of persons or law firms that it deems qualified
as Independent Counsel under the foregoing criteria. Further, at the request
of
Indemnitee, the Corporation shall review the qualifications and suitability
under the foregoing criteria of persons or law firms selected by Indemnitee
and
preapprove them as Independent Counsel if they meet the foregoing criteria.
An
Independent Counsel that has already been preapproved by the board of directors
may be appointed as Independent Counsel without any further evaluation, so
long
as such prospective Independent Counsel continues, as determined by the board
of
directors, to remain independent.
(g) A
“Change
in Control” shall be deemed to have occurred if (i) any “person” (as such
term is used in Section 13(d)(3) of the Exchange Act), other than a trustee
or
other fiduciary holding securities under an employee benefit plan of the
Corporation or a corporation owned directly or indirectly by the stockholders
of
the Corporation in substantially the same proportions as their ownership of
stock of the Corporation, (1) that is or becomes the beneficial owner,
directly or indirectly, of securities of the Corporation representing 20% or
more of the combined voting power of the Corporation’s then-outstanding voting
securities, increases its beneficial ownership of such securities by 5% or
more
over the percentage so owned by such person, or (2) becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing more than 30% of
the
total voting power represented by the Corporation’s then-outstanding voting
securities, (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the board of directors of the
Corporation and any new director whose election by the board of directors or
combination for election by the Corporation’s stockholders was approved by a
vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to constitute
a
majority thereof, or (iii) the stockholders of the Corporation approve a
merger or consolidation of the Corporation with any other corporation other
than
a merger or consolidation that would result in the voting securities of the
Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of
the surviving entity) at least two-thirds of the total voting power represented
by the voting securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Corporation approve a plan of complete liquidation of the Corporation or an
agreement for the sale or disposition by the Corporation of (in one transaction
or a series of transactions) all or substantially all of the Corporation’s
assets.
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2. Indemnity
of Indemnitee.
The
Corporation hereby agrees to indemnify, protect, defend, and hold harmless
Indemnitee against any and all Losses incurred by reason of the fact that
Indemnitee is or was a director, officer, agent, or advisor of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee, agent, or advisor of another corporation, partnership, joint venture,
trust, limited liability company, or other entity or enterprise, to the fullest
extent permitted by Delaware Law. The termination of any Indemnifiable Matter
by
judgment, order of the court, settlement, conviction, or upon a plea of
nolo
contendere
or its
equivalent, shall not, of itself, create a presumption that Indemnitee is not
entitled to indemnification, and with respect to any criminal proceeding, shall
not create a presumption that such person believed that his conduct was
unlawful. The indemnification provided herein shall be applicable whether or
not
the breach of any standard of care or duty, including a breach of a fiduciary
duty, of the Indemnitee is alleged or proven, except as limited by section
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herein. Notwithstanding the foregoing, in the case of any Indemnifiable Matter
brought by or in the right of the Corporation, Indemnitee shall not be entitled
to indemnification for any claim, issue, or matter as to which Indemnitee has
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 court
in
which the Indemnifiable Matter was brought or another court of competent
jurisdiction determines, on application, that in view of all the circumstances,
the person is fairly and reasonably entitled to indemnity for such expenses
as
the court deems proper.
3. Limit
on Indemnification.
Notwithstanding any breach of any standard of care or duty, including breach
of
a fiduciary duty, by the Indemnitee, the Corporation shall indemnify Indemnitee
except when a final adjudication establishes that Indemnitee’s acts or omissions
involved intentional misconduct, fraud, or a knowing violation of law and were
material to the cause of action.
4. Choice
of Counsel.
Indemnitee shall be entitled to employ and be reimbursed for the fees and
disbursements of counsel separate from that chosen by any other person or
persons whom the Corporation is obligated to indemnify with respect to the
same
or any related or similar Indemnifiable Matter.
5. Losses.
(a) Losses
(other than judgments, penalties, fines, and settlements) incurred by Indemnitee
shall be paid by the Corporation, in advance of the final disposition of the
Indemnifiable Matter, within 10 days after receipt of Indemnitee’s written
request accompanied by substantiating documentation.
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(b) Indemnitee
hereby undertakes to repay to the Corporation any advances of Losses pursuant
to
this Agreement to the extent that it is ultimately determined that Indemnitee
is
not entitled to indemnification.
6. Officer
and Director Liability Insurance.
The
Corporation shall, from time to time, make the good faith determination whether
or not it is practicable for the Corporation to obtain and maintain a policy
or
policies of insurance with reputable insurance companies providing the officers
and directors of the Corporation with coverage for Losses or to ensure the
Corporation’s performance of its indemnification obligations under this
Agreement. Among other considerations, the Corporation will weigh the costs
of
obtaining such insurance coverage against the protection afforded by such
coverage. The Corporation shall consult with and be heard by Indemnitee in
connection with the Corporation’s actions hereunder. In all policies of director
and officer liability insurance, (a) Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and benefits
as are accorded to the most favorably insured of the Corporation’s directors, if
Indemnitee is a director, or of the Corporation’s officers, if Indemnitee is not
a director of the Corporation but is an officer; and (b) the policy shall
provide that it shall not be cancelled or materially modified without 30 days’
prior written notice to Indemnitee. Notwithstanding the foregoing, the
Corporation shall have no obligation to obtain or maintain such insurance if
the
Corporation determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to
the
amount of coverage provided, if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or if Indemnitee
is covered by similar insurance maintained by a subsidiary or parent of the
Corporation.
7. Other
Financial Arrangements.
The
Corporation may make other financial arrangements acceptable to Indemnitee
for
Indemnitee’s benefit and Indemnitee shall be an intended third-party beneficiary
of any such arrangement, with the right, power, and authority of the Indemnitee
to xxx for, enforce, and collect the same, in the name, place, and stead of
the
Corporation or otherwise, for Indemnitee’s benefit. Any such fund or other
arrangements shall be available to Indemnitee for payment of Losses upon the
Corporation’s failure, inability, or refusal to pay Losses incurred by the
Indemnitee.
8. Right
of Indemnitee to Indemnification upon Application; Selection of Independent
Counsel; Procedure upon Application.
(a) Any
application for indemnification under this Agreement, other than when Losses
are
paid in advance of any final disposition pursuant to section 5 hereof, shall
be
submitted to the board of directors. If a quorum of the board of directors
were
not parties to the action, suit, proceeding, or other matter, a majority of
the
directors who were not parties to the action, suit, proceeding, or other matter
may determine whether indemnification of the applicant is not prohibited by
law
or may have such determination made by Independent Counsel in a written
decision. If a quorum of the board directors who were not parties to the action
cannot be obtained, the board of directors shall have such determination made
by
Independent Counsel in a written decision. Notwithstanding the foregoing,
however, the board of directors may under any circumstances submit the
determination of whether indemnification is proper in the circumstances to
the
stockholders. The board of directors shall respond to a request for
indemnification or initiate the process of submitting the determination to
the
stockholders within 45 days after receipt by the Corporation of the written
application for indemnification.
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(b) If
required, Independent Counsel shall be selected by the board of directors,
and
the Corporation shall give written notice to Indemnitee advising him of the
identity of Independent Counsel so selected. Indemnitee may, within seven days
after such written notice of selection shall have been given, deliver to the
Corporation a written objection to such selection. Such objection may be
asserted only on the ground that Independent Counsel so selected does not meet
the requirements of “Independent Counsel,” as defined in section 1, and the
objection shall set forth with particularity the factual basis of such
assertion. If such written objection is made, Independent Counsel so selected
may not serve as Independent Counsel unless and until a court has determined
that such objection is without merit. If, within 20 days after submission by
Indemnitee of a written objection to the Independent Counsel selected, the
Corporation has failed to identify a replacement Independent Counsel, the
Indemnitee may petition any court of competent jurisdiction for resolution
of
any objection that shall have been made by Indemnitee to the Corporation’s
selection of Independent Counsel and for appointment as Independent Counsel
of a
person selected by such court or by such other person as such court shall
designate, and the person with respect to whom an objection is so resolved
or
the person so appointed shall act as Independent Counsel. The Corporation shall
pay any and all reasonable fees and expenses of Independent Counsel incurred
by
such Independent Counsel in connection with its fees and expenses incident
to
the procedures of this section 8 regardless of the manner in which such
Independent Counsel was selected or appointed.
(c) The
right
to indemnification or advances as provided by this Agreement shall be
enforceable by Indemnitee in any court of competent jurisdiction. The burden
of
proving that indemnification is not appropriate shall be on the Corporation.
Neither the failure of the Corporation (including its board of directors or
Independent Counsel) to have made a determination prior to the commencement
of
such action that indemnification is proper in the circumstances, nor an actual
determination by the Corporation (including its board of directors or
Independent Counsel) that indemnification is not proper in the circumstances,
shall be a defense to the action, suit, proceeding, or other matter or create
a
presumption that indemnification is not proper in the
circumstances.
9. Notice
to Insurers.
If at
the time of the receipt of an application for indemnification pursuant to
section 2 hereof or a request for advances of Losses pursuant to section 5
hereof, the Corporation has director and officer liability insurance in effect,
the Corporation shall give prompt notice of the commencement of such
Indemnifiable Matter to the insurers in accordance with the procedures set
forth
in the respective policies. The Corporation shall thereafter take all necessary
or desirable actions to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Indemnifiable Matter in accordance
with
the terms of such policies.
10. Indemnification
Hereunder Not Exclusive.
The
indemnification and advancement of Losses provided by this Agreement shall
not
be deemed exclusive of any other rights to which Indemnitee may be entitled
under the Articles or Bylaws, Delaware Law, any policy or policies of directors’
and officers’ liability insurance, any other agreement, any vote of stockholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office
(together, “Other Indemnification”). However, Indemnitee shall reimburse the
Corporation for amounts paid to him under Other Indemnification and not under
this Agreement in an amount equal to any payments received pursuant to such
Other Indemnification, to the extent such payments duplicate any payments
received pursuant to this Agreement.
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11. Continuation
of Indemnity.
All
agreements and obligations of the Corporation contained herein shall continue
during the period Indemnitee is a director, officer, employee, agent, or advisor
of the Corporation (or is or was serving at the request of the Corporation
as a
director, officer, employee, agent, or advisor of another corporation,
partnership, joint venture, trust, limited liability company, or other
enterprise) and shall continue thereafter so long as Indemnitee shall be subject
to any possible Indemnifiable Matter.
12. Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Corporation for some or a portion of Losses, but not, however, for the
total amount thereof, the Corporation shall nevertheless indemnify Indemnitee
for the portion of such Losses to which Indemnitee is entitled.
13. Settlement
of Claims.
The
Corporation shall not be liable to indemnify Indemnitee under this Agreement
for
any amounts paid in settlement of any Indemnifiable Matter effected without
the
Corporation’s written consent. The Corporation shall not settle any
Indemnifiable Matter in any manner that would impose any penalty or limitation
on Indemnitee’s rights under this Agreement without Indemnitee’s written
consent. Neither the Corporation nor Indemnitee will unreasonably withhold
its
consent to any proposed settlement. The Corporation shall not be liable to
indemnify Indemnitee under this Agreement with regard to any judicial award
if
the Corporation was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such action.
14. Change
in Control.
The
Corporation agrees that if there is a Change in Control of the Corporation
(other than a Change in Control that has been approved by a majority of the
Corporation’s board of directors who were directors immediately prior to such
Change in Control), then, with respect to all matters thereafter arising
concerning the rights of Indemnitee to payments of Losses under this Agreement
or any other agreement, or under the Articles or Bylaws as now or hereafter
in
effect, independent counsel shall be selected by the Indemnitee and approved
by
the Corporation (which approval shall not be unreasonably withheld). Such
counsel, among other things, shall render its written opinion to the Corporation
and Indemnitee as to whether and to what extent Indemnitee would be permitted
to
be indemnified under Delaware Law as determined in accordance with section
16(d). The Corporation agrees to abide by such opinion and to pay the reasonable
fees of the independent counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys’ fees), claims,
liabilities, and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
15. Enforcement.
(a) The
Corporation expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on the Corporation hereby in
order
to induce Indemnitee to serve as a director or officer of the Corporation,
and
acknowledges that Indemnitee is relying upon this Agreement in continuing as
a
director or officer. The Corporation shall be precluded from asserting in any
action commenced pursuant to this section 15 that the procedures and
presumptions in this section are not valid, binding, and enforceable and shall
stipulate in any such judicial proceedings that the Corporation is bound by
all
of the provisions of this Agreement.
(b) In
any
action commenced pursuant to this section 15, Indemnitee shall be presumed
to be
entitled to indemnification and advancement of Losses in accordance with section
5 under this Agreement, as the case may be, and the Corporation shall have
the
burden of proof in overcoming such presumption and must show by clear and
convincing evidence that Indemnitee is not entitled to indemnification or
advancement of Losses, as the case may be.
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(c) The
execution of this Agreement shall constitute the Corporation’s stipulation by
which it shall be irrevocably bound in any action by Indemnitee for enforcement
of Indemnitee’s rights hereunder that the Corporation’s 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
immediate 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 respecting a 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.
(d) In
the
event that Indemnitee shall deem it necessary or desirable to retain legal
counsel and/or incur other costs and expenses in connection with the
interpretation or enforcement of any or all of Indemnitee’s rights under this
Agreement, Indemnitee shall be entitled to recover from the Corporation, and
the
Corporation shall indemnify Indemnitee against, any and all fees, costs, and
expenses (of the types described in the definition of Losses in section 1(b))
incurred by Indemnitee in connection with the interpretation or enforcement
of
said rights. The Corporation shall make payment to the Indemnitee at the time
such fees, costs, and expenses are incurred by Indemnitee. If, however, the
Indemnitee does not prevail in such action under this section 15, Indemnitee
shall repay any and all such amounts to the Corporation. If it shall be
determined in an action pursuant to this section 15 that Indemnitee is entitled
to receive part but not all of the indemnification or advancement of fees,
costs, and expenses or other benefit sought, the expenses incurred by Indemnitee
in connection with an action pursuant to this section 15 shall be equitably
allocated between the Corporation and Indemnitee. Notwithstanding the foregoing,
if a Change in Control shall have occurred, Indemnitee shall be entitled to
indemnification under this section 15 regardless of whether Indemnitee
ultimately prevails in such judicial adjudication or arbitration. This section
15(d) is not subject to the provisions of section 8.
16. Governing
Law; Binding Effect; Amendment and Termination; Construction.
(a) This
Agreement shall be interpreted and enforced in accordance with Delaware
Law.
(b) This
Agreement shall be binding upon the Corporation, its successors and assigns,
and
shall inure to the benefit of Indemnitee, such Indemnitee’s actual or alleged
alter egos, spouse, family members, and corporations, partnerships, limited
liability companies, trusts, and other enterprises or entities of any form
whatsoever under the control of any of the foregoing, the property of all of
the
foregoing, and the successors and assigns of all of the foregoing.
(c) No
amendment, modification, termination, or cancellation of this Agreement shall
be
effective unless in writing signed by the Corporation and
Indemnitee.
(d) This
Agreement shall be construed liberally in favor of the Indemnitee to the fullest
extent possible under Delaware Law, even if such indemnification is not
specifically authorized by this Agreement or any other agreement, the Articles
or Bylaws, or by Delaware Law. In the event Delaware Law is changed after the
date of this Agreement, through statutory amendment, judicial interpretation,
administrative regulations, or otherwise, to allow additional indemnification
or
to remove or restrict current limitations on indemnification, this Agreement
shall be deemed to be amended and reformed so that Indemnitee shall enjoy by
this Agreement the greater benefits of such change. In the event of any change
in Delaware Law that narrows or restricts the right of a Delaware corporation
to
indemnify Indemnitee, such change, to the extent not otherwise required by
Delaware Law to be applied to Indemnitee in the relevant circumstances, shall
have no effect on this Agreement or the rights and obligations of the parties
hereunder.
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17. Mutual
Acknowledgement.
Both
the Corporation and Indemnitee acknowledge that in certain instances, federal
law or applicable public policy may prohibit the Corporation from indemnifying
its directors and officers under this Agreement or otherwise. Indemnitee
understands and acknowledges that the Corporation may be required in the future
to undertake with the Securities and Exchange Commission to submit the question
of indemnification to a court in certain circumstances for a determination
of
the Corporation’s right under public policy to indemnify
Indemnitee.
18. Severability.
If any
provision of this Agreement shall be held to be invalid, illegal, or
unenforceable:
(a) the
validity, legality, and enforceability of the remaining provisions of this
Agreement shall not be in any way affected or impaired thereby; and
(b) to
the
fullest extent possible, the provisions of this Agreement shall be construed
so
as to give effect to the intent manifested by the provision held invalid,
illegal, or unenforceable.
Each
section of this Agreement is a separate and independent portion of this
Agreement. If the indemnification to which Indemnitee is entitled as respects
any aspect of any claim varies between two or more sections of this Agreement,
that section providing the most comprehensive indemnification shall
apply.
19. Notice.
Any
notice, demand, request, or other communication permitted or required under
this
Agreement shall be in writing and shall be deemed to have been given as of
the
date so delivered, if personally served; as of the date so sent, if transmitted
by facsimile and receipt is confirmed by the facsimile operator of the
recipient; as of the date so sent, if sent by electronic mail and receipt is
acknowledged by the recipient; one day after the date so sent, if delivered
by
overnight courier service; or three days after the date so mailed, if mailed
by
certified mail, return receipt requested, addressed as follows:
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| If to the Corporation: |
Kings
Road Entertainment, Inc.
|
000
X.
Xxxxxx Xxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
E-mail:
xxxx@xxxxxxxxxxxxxxxxxxxxxx.xxx
| If to Indemnitee, to: |
xyz
|
Email:
xyz
or
such
other addresses, facsimile numbers, or electronic mail address as shall be
furnished in writing by any party in the manner for giving notices
hereunder.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written to be effective as of the Effective
Date.
| Corporation: | ||
| KINGS ROAD ENTERTAINMENT, INC. | ||
| |
|
|
|
By: |
||
| Its: President & CEO | ||
| Indemnitee: | ||
| |
|
|
|
By: xyz |
||
10
