EXHIBIT 10.03
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the ___ day of _________, 1997, by and between
Xxxxxxxx.xxx (the "Company"), a California corporation, having its principal
place of business at 0000 X. Xxxxx Xxxxxxx, Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000,
and _______________________ ("Executive" or "Director"), an individual residing
at ___________________________________________________________________________
__________________________.
Section 1. Indemnity.
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(a) In addition to any rights of Executive (Director) under the
Company's articles of incorporation or by-laws or any applicable State law,
Company hereby agrees to hold harmless and indemnify Executive (Director):
(i) Against any and all expenses (including attorneys' fees and
costs), judgments, fines and amounts paid in settlement actually and reasonable
incurred by Executive (Director) 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 name of the Company) to which
Executive (Director) is, was or at any time becomes a party, or is threatened to
be made a party, by reason of the fact that Executive (Director) is, was or at
any time becomes a director, officer, employee, consultant, or agent of the
Company, or is or was serving or at any time serves at the request of the
Company as a director, officer, employee, consultant, partner, trustee or agent
regardless of his subsequent title or position at another corporation,
partnership, joint venture, trust or other enterprise;
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(ii) Otherwise to the fullest extent as may be provided to
Executive (Director) by the Company under the articles of incorporation, by-laws
of the Company and California Corporations Code; and
(b) No indemnity pursuant to this Paragraph 7 shall be paid by
Company:
(i) Except to the extent the aggregate of amounts to be
indemnified thereunder exceed the sum of Five Hundred Dollars ($500) plus the
amount of such losses for which the Executive (Director) is indemnified either
pursuant to the by-laws of the Company or any subsidiary thereof, or pursuant to
any Directors and Officers insurance purchased and maintained by Company;
(ii) In respect to remuneration paid to Executive (Director) if
it shall be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(iii) On account of any suit in which judgment is rendered
against Executive (Director) for an accounting of profits made from the purchase
or sale by Executive (Director) 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 federal, state or local
statutory law;
(iv) On account of conduct which is finally adjudged to have been
willful misconduct by Executive (Director); and
(v) If a final decision by a Court having jurisdiction in the
matter shall determine that such indemnification to Executive (Director) is not
lawful.
(c) All agreements and obligations of the Company contained herein
shall
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continue during the period Executive (Director) is a director, officer,
employee, consultant or agent of Company (or is or was serving at the request of
the Company as a director, officer, employee, partner, consultant or agent of
another corporation, partnership, joint venture, trust or other enterprise) and
shall continue thereafter so long as Executive (Director) shall be subject to
any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative, by reason of the fact that
Executive (Director) was an officer or director of Company or serving in any
other capacity referred to herein.
(d) Company shall not be liable to indemnify Executive (Director)
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. Company shall not settle any action or
claim in any manner which would impose any penalty or limitation on Executive
(Director) without Executive's (Director's) written consent. Neither the
Company nor Executive (Director) will unreasonably withhold its, his or her
consent to any proposed settlement.
(e) The Company will pay all expenses immediately upon the presentment
of bills for such expenses. Executive (Director) agrees that Executive
(Director) will reimburse Company for all reasonable expenses paid by Company in
defending any civil or criminal action, suit or proceeding against Executive
(Director) in the event and only to the extent that it shall be ultimately
determined that Executive (Director) is not entitled to be indemnified by
Company for such expenses under the provisions of the applicable State statute,
the by-laws, this Agreement or otherwise. This Agreement shall not affect any
rights of Executive (Director) against Company, any insurer, or any other person
to seek indemnification or contribution.
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(f) If Company fails to pay any expenses (including without limiting
the generality of the foregoing, legal fees and expenses incurred in defending
any action, suit or proceeding), Executive (Director) shall be entitled to
institute suit against Company to compel such payment and Company shall pay
Executive (Director) all costs and legal fees incurred in enforcing such right
to prompt payment.
(g) To the extent allowable under California law, the burden of proof
with respect to any proceeding or determination with respect to Executive's
(Director's) entitlement to indemnification under this Agreement shall be on
Company.
(h) If any provision of this Paragraph 7 shall be determined as
conflicting with any provision of (i) Company's by-laws or Articles of
Incorporation, (ii) California law, or (iii) the provisions of any other
agreement between the parties as to indemnification, and such other document or
law would provide the Executive (Director) with greater rights of benefits of
indemnification, then such other document or law shall prevail; it being the
intention of the parties hereto to provide maximum indemnification to the
Executive (Director). Otherwise, unless prohibited by law, any document or law
which affords Executive (Director) with greater rights of indemnification by
Company than do the provisions of this Agreement shall have superiority over the
provisions of this Agreement.
(i) In support of its obligations hereunder, the Company agrees to
use its best efforts to maintain a directors' and officers' liability and other
insurance policies covering the Executive (Director) and further agrees that
these policies shall be maintained so as to provide as broad and as complete
coverage as is reasonably available in relation both to the Executive
(Director)'s position during the term of employment or consultancy or
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directorship and to any claims arising thereafter but relating to said term of
employment or consultancy or directorship. Notwithstanding the foregoing, the
failure or inability of the Company to maintain such insurance policy or
policies shall not be a breach of this Agreement by the Company if the Company's
Board of Directors determine, in good faith, that such insurance coverage is not
available to the Company at a reasonable cost.
Section 2. Successors, Assigns, etc. This Agreement shall inure to the
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benefit of and be binding upon the parties hereto, their successors and assigns,
including, without limitation, any entity which may acquire all or substantially
all of the Company's assets and business and any corporation with which the
Company may be merged and, Executive (Director) , his or her heirs, executors,
administrators and legal representatives.
Section 3. Arbitration. Any dispute with respect to this Agreement
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shall be decided by arbitration in the City of Los Angeles, California in
accordance with the rules of the American Arbitration Association as then in
force by a panel of three arbitrators. Executive (Director) and the Company
shall each select one member of the panel and the third remaining member shall
be selected through mutual agreement of the first two panel members. The panel
shall decide all matters in accordance with applicable law and this Agreement.
All costs in connection with any proceedings hereunder, other than the
attorneys' fees and disbursements of each party, shall be borne equally by the
parties, unless otherwise determined by the panel. The panel's award shall be
final, conclusive and binding on the parties, and shall be the exclusive remedy
regarding any claims, counterclaims, issues or accounting presented or pled to
the panel. Judgment on the award may be entered in any court or other tribunal
of competent jurisdiction. All costs and fees incidental to the
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enforcement of any award shall be charged, to the maximum permitted extent,
against the party resisting enforcement. Notwithstanding the foregoing, this
Section shall not limit the right of any party to seek to obtain in any court or
other tribunal any interim relief or provisional remedy, including, without
limitation, injunctive relief or attachment. Seeking or obtaining such interim
relief or provisional remedy shall not constitute waiver of the right to
arbitration hereunder.
Section 4. Attorneys' Fees and Costs. In any action at law or in
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equity or in any arbitration necessary to enforce or interpret the terms of this
Agreement, the prevailing party (either plaintiff or defendant) shall be
entitled to recover from the other party reasonable attorneys' fees, costs, and
necessary disbursements in addition to any other relief to which such prevailing
party may be entitled.
Section 5. No Waiver of Rights. All waivers hereunder must be made in
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writing and failure by either party hereto at any time to require the other
party's performance of any obligation under this Agreement shall not affect the
right subsequently to require performance of that obligation. Any waiver of any
breach of any provision of this Agreement shall not be construed as a waiver of
any continuing or succeeding breach of such provision or a waiver or
modification of the provision.
Section 6. Severability. The parties hereto expressly agree and
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contract that it is not the intention of any of them to violate any public
policy, statutory or common laws, rules, regulations, treaties or decisions of
any government or agency thereof. If any Section, sentence, clause, word or
combination thereof in this Agreement is judicially or administratively
interpreted or construed as being in violation of any such provisions of any
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jurisdiction, such Sections, sentences, words, clauses or combinations thereof
shall be inoperative in each such jurisdiction and the remainder of this
Agreement shall remain binding upon the parties hereto in each such jurisdiction
and the Agreement as a whole shall be unaffected elsewhere.
Section 7. Law to Govern. The validity, construction and
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enforceability of this Agreement shall be governed in all respects by the law of
California applicable to agreements negotiated, executed and performed in
California regardless of whether either of the parties shall not be or hereafter
become a resident of another state or country, except as to any matters which
are required to be governed by the laws of any other jurisdiction.
Section 8. Notices. Any notice required or permitted to be given under
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this Agreement shall be in writing and shall be deemed to have been given upon
delivery if delivered personally, one full business day after proper telex or
facsimile transmittal if transmitted by telex or facsimile, or five full
business days after mailing if mailed by certified or registered airmail, return
receipt requested, postage prepaid, addressed as follows:
Xxxxxx X. XxXxxxx Xxxxxxxx.xxx
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxx Xxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EXECUTIVE (DIRECTOR) COMPANY
__________________________ _______________________________
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