EXHIBIT 10.40
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made, entered into and effective as of the ____ day
of ____________ ____, by and between J NET ENTERPRISES, INC., a Nevada
corporation (the "Company"), and the undersigned (the "Indemnitee").
RECITALS
WHEREAS, the Indemnitee is a ________ of the Company; and
WHEREAS, the Company and the Indemnitee recognize the continued
difficulty in obtaining liability insurance for its directors, officers,
employees, agents and fiduciaries, the significant increases in the cost of
such insurance and the general reductions in the coverage of such
insurance; and
WHEREAS, the Company and the Indemnitee further recognize the
substantial increase in corporate litigation in general, subjecting
directors, officers, employees, agents and fiduciaries to expensive
litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited; and
WHEREAS, the Indemnitee does not regard the current protection
available as adequate under the present circumstances, and the Indemnitee
and other directors, officers, employees, agents and fiduciaries of the
Company may not be willing to continue to serve in such capacities without
additional protection; and
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as the Indemnitee, to serve the Company
and, in part, in order to induce the Indemnitee to continue to provide
services to the Company, wishes to provide for the indemnification and
advancing of expenses to the Indemnitee to the maximum extent permitted by
law; and
WHEREAS, in view of the considerations set forth above, the Company
desires that the Indemnitee be indemnified by the Company to the fullest
extent permitted by law as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the covenants
contained herein and the Indemnitee's continued service to the Company, the
Company and the Indemnitee, intending to be legally bound, hereby agree as
follows:
1. Indemnification.
________________
(a) Indemnification of Expenses. The Company shall indemnify
Indemnitee to the fullest extent permitted by law if Indemnitee is or
becomes a party to or witness or other participant in, or is threatened to
be made a party to or witness or other participant in, any threatened,
pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism,
whether civil, criminal, administrative, investigative or other
(hereinafter a "Claim") by reason of (or arising in part out of) any event
or occurrence related to the fact that Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company, or any subsidiary of
the Company, or is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other
enterprise, or by reason of any action or inaction on the part of
Indemnitee while serving in such capacity (hereinafter an "Indemnifiable
Event") against any and all expenses incurred by or on behalf of Indemnitee
(including attorneys' fees and all other costs, expenses and obligations
incurred in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, be a
witness in or participate in, any such action, suit, proceeding,
alternative dispute resolution mechanism, hearing, inquiry or
investigation), costs of supersedes and other appeal bonds, judgments,
fines, penalties and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be
unreasonably withheld or delayed) of such Claim and any federal, state,
local or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement (collectively,
hereinafter "Expenses"), including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses.
The Company shall make such payment of Expenses as soon as practicable but
in any event no later than [ten (10)] days after written demand by
Indemnitee therefor is presented to the Company.
(b) Change in Control.
(i) Determination. The Company agrees that if there is a
Change in Control (as defined in Section 9(c) hereof) of the Company (other
than a Change in Control which has been approved by a majority of the
Company'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 Expenses and Expense
Advances under this Agreement or any other agreement or under the Company's
Articles of Incorporation or Bylaws as now or hereafter in effect,
Independent Legal Counsel (as defined in Section 9(d) hereof) shall be
selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld or delayed). Such counsel, among other things,
shall render its written opinion to the Company's Board of Directors and
Indemnitee as to whether and to what extent Indemnitee would be permitted
to be indemnified under applicable law and the Company agrees to abide by
such opinion. The Company agrees to pay the reasonable fees of the
Independent Legal 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.
(ii) Potential Change in Control. Following the occurrence
of any Potential Change in Control (as defined in Section 9(e)), the
Company, upon receipt of a written request from Indemnitee, shall create a
Trust (the "Trust") for the benefit of Indemnitee, the trustee of which
shall be a bank or similar financial institution with trust powers chosen
by Indemnitee. From time to time, upon the written request of Indemnitee,
the Company shall fund the Trust in amounts sufficient to satisfy any and
all Expenses reasonably anticipated at the time of each such request to be
incurred by Indemnitee for which indemnification may be available under
this Agreement. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by mutual
agreement of Indemnitee and the Company or, if the Company and Indemnitee
are unable to reach such an agreement or, in any event, a Change in Control
has occurred, by Independent Legal Counsel (selected pursuant to Section
1(b)(i)). The terms of the Trust shall provide that, except upon the prior
written consent of Indemnitee and the Company, (a) the Trust shall not be
revoked or that principal thereof invaded, other than to make payments to
unsatisfied judgment creditors of the Company, (b) the Trust shall continue
to be funded by the company in accordance with the funding obligations set
forth in this Section, (c) the Trustee shall promptly pay or advance to
Indemnitee any amounts to which Indemnitee shall be entitled pursuant to
this Agreement, and (d) all unexpended funds in the Trust shall revert to
the Company upon a determination by Independent Legal Counsel (selected
pursuant to Section 1(b)(i)) or a court of competent jurisdiction that
Indemnitee has been fully indemnified under the terms of this Agreement.
All income earned on the assets held in the trust shall be reported as
income by the Company for federal, state, local and foreign tax purposes.
(iii) Expenses. Following any Change in Control, the
Company shall be liable for and shall pay the Expenses paid or incurred by
Indemnitee in connection with the making of any determination (irrespective
of the determination as to the Indemnitee's entitlement to indemnification)
or the prosecution of any Claim pursuant to Section 8.2, and the Company
hereby agrees to indemnify and hold Indemnitee harmless therefrom. If
requested by counsel for Indemnitee, the Company shall promptly give such
counsel an appropriate written agreement with respect to the payment of its
fees and expenses and such other matters as may be reasonably requested by
such counsel.
(c) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement other than Section 8 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
proceeding referred to in Section 1(a) of this Agreement, or in defense of
any claims, issue or matter herein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee (or on his behalf) in connection
therewith. If Indemnitee is not wholly successful in any proceeding
referred to in Section 1(a) of this Agreement, but is successful on the
merits or otherwise (including dismissal without prejudice) as to one or
more, but less than all claims, issues or matters therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by Indemnitee (or on his behalf)
in connection with each successfully resolved claim, issue or matter. For
purposes of this Section 1(c), and without limitation, the termination of
any claim, issue or matter in any proceeding referred to in Section 1 of
this Agreement by dismissal, with or without prejudice, shall be deemed to
be a successful result as to such claim, issue or matter.
(d) Reimbursement of Expenses Following Adjudication of
Negligence. To the fullest extent permitted by applicable law, the Company
shall reimburse the Indemnitee for any Expenses (including attorneys' fees)
and amounts actually and reasonably incurred or paid by him in connection
with the investigation, defense, settlement or appeal of any action or suit
described in Section 1(a) hereof that results in an adjudication that the
Indemnitee was liable for negligence, gross negligence or recklessness (but
not willful misconduct) in the performance of his duty to the Company;
provided, however, that the Indemnitee acted in good faith and in a manner
he believed to be in the best interests of the Company.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. To the fullest extent permitted by
applicable law, the Expenses incurred by Indemnitee pursuant to Section
1(a) of this Agreement in connection with any proceeding or any claim,
issue or matter therein shall be paid by the Company in advance (an
"Expense Advance") of the final disposition of such proceeding or any
claim, issue or matter therein no later than 10 days after receipt by the
Company of an undertaking by or on behalf of Indemnitee ("Indemnitee
Undertaking") to repay such amount to the extent that it is ultimately
determined that Indemnitee is not entitled to be indemnified by the
Company. The Indemnitee Undertaking shall be in a form reasonably
acceptable to the Company, shall not be secured and shall be interest free.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to Indemnitee's right to be indemnified under this
Agreement, give the Company 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 Company shall be directed to the
Company's Board of Directors of Directors at the address shown on the
signature page of this Agreement (or such other address as the Company
shall designate in writing to Indemnitee). In addition, Indemnitee shall
give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
(c) Reviewing Party. Upon written request by Indemnitee for
indemnification pursuant to Section 2(b) of this Agreement, a
determination, if required by applicable law, with respect to Indemnitee's
entitlement thereto shall be made in the specific case: (i) if a Change in
Control shall have occurred, in the manner set forth in Section 1(b) of
this Agreement; or (ii) if a Change in Control shall not have occurred, (A)
by a vote of the stockholders of the Company, (B) by the Company's Board of
Directors by majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding, (C) if a majority vote of a
quorum consisting of directors who were not parties to the action, suit or
proceeding so order, by Independent Legal Counsel in a written opinion to
the Company's Board of Directors, or (D) if a quorum consisting of
directors who were not parties to the action, suit or proceeding cannot be
obtained, by Independent Legal Counsel in a written opinion to the
Company's Board of Directors, a copy of which shall be delivered to
Indemnitee; and, if so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 10 days after
such determination.
(d) Presumptions; Burden of Proof; Effect of Certain Provisions.
(i) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with Section 2(b) of this Agreement, and the
Company shall have the burden of proof in overcoming such presumption by
clear and convincing evidence. The termination of any Claim by judgment,
order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a
presumption that Indemnitee did not meet any particular standard of conduct
or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law. Further, neither the
failure of the Company (including the Company's Board of Directors or
Independent Legal Counsel) to have made a determination prior to the
commencement of such action pursuant to this Agreement that indemnification
is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including
the Company's Board of Directors or Independent Legal Counsel) that
Indemnitee has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that Indemnitee has not met
the applicable standard of conduct.
(ii) If the person, persons or entity empowered or selected
in accordance with the terms of this Agreement to determine whether
Indemnitee is entitled to indemnification shall not have made a
determination within 60 days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be extended
for a reasonable time, not to exceed an additional 30 days, if the person,
persons or entity making the determination with respect to entitlement to
indemnification in good faith requires such additional time for the
obtaining or evaluating of documentation and/or information relating
thereto; and provided, further, that the foregoing provisions of this
Section 2(d) shall not apply if the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to the terms
of this Agreement.
(iii) For purposes of any determination of whether Indemnitee
acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal proceeding, Indemnitee had no reasonable cause to believe his
conduct was unlawful (collectively, "Good Faith"), Indemnitee shall be
deemed to have acted in Good Faith if Indemnitee's action is based on the
records or books of account of the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent ("Enterprise"), including
financial statements, or on information supplied to Indemnitee by the
officers of any Enterprise in the course of their duties, or on the advice
of legal counsel for the Enterprise or on information or records given or
reports made to the Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with the reasonable
care by the Enterprise. The provisions of this Section 2(d) shall not be
deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
(iv) The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Enterprise shall not be imputed
to Indemnitee for purposes of determining the right to indemnification
under this Agreement.
(v) If a Change in Control shall have occurred, Indemnitee
shall be entitled to a rebuttable presumption that Indemnitee is entitled
to indemnification under this Agreement and the Company shall have the
burden of proof in rebutting such presumption.
(e) Notice to Insurers. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 2(b) hereof, the Company
has liability insurance in effect which may cover such Claim, the Company
shall give prompt notice of the commencement of such Claim to the insurers
in accordance with the procedures set forth in the respective policies.
The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as
a result of such action, suit, proceeding, inquiry or investigation in
accordance with the terms of such policies.
(f) Selection of Counsel. In the event the Company shall be
obligated hereunder to pay the Expenses of any Claim, the Company, if
appropriate, shall be entitled to assume the defense of such Claim with
counsel approved by Indemnitee, upon the delivery to Indemnitee of written
notice of its election so to do. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this Agreement
for any fees of counsel subsequently incurred by Indemnitee with respect to
the same Claim; provided that, (i) Indemnitee shall have the right to
employ Indemnitee's counsel in any such Claim at Indemnitee's expense and
(ii) if (A) the employment of counsel by Indemnitee has been previously
authorized by the Company, (B) Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and Indemnitee
in the conduct of any such defense, or (C) the Company shall not continue
to retain such counsel to defend such Claim, then the fees and expenses of
Indemnitee's counsel shall be at the expense of the Company.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify Indemnitee to
the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of
this Agreement, the Company's Articles of Incorporation, the Company's
Bylaws or by statute. In the event of any change after the date of this
Agreement in any applicable law, statute or rule which expands the right of
a Nevada corporation to indemnify a member of the Company's Board of
Directors or an officer, employee, agent or fiduciary, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits afforded by such change. In the event of any change in any
applicable law, statute or rule which narrows the right of a Nevada
corporation to indemnify a member of the Company's Board of Directors or an
officer, employee, agent or fiduciary, such change, to the extent not
otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties' rights
and obligations hereunder except as set forth in Section 7(a) hereunder.
(b) Nonexclusivity. The indemnification provided by this
Agreement shall be in addition to any rights to which Indemnitee may be
entitled under the Company's Articles of Incorporation, its Bylaws, any
agreement, any vote of stockholders or disinterested directors, the General
Corporation Law of the State of Nevada, or otherwise. The indemnification
provided under this Agreement shall continue as to Indemnitee for any
action taken or not taken while serving in an indemnified capacity even
though Indemnitee may have ceased to serve in such capacity.
(c) Appeals; Enforcement.
(i) In the event that (a) a determination is made that
Indemnitee shall not be entitled to indemnification under this Agreement,
(b) any determination to be made by Independent Legal Counsel is not made
within 90 days of receipt by the Company of a request for indemnification
pursuant to Section 2(b) or (c) the Company fails to otherwise perform any
of its obligations under this Agreement (including, without limitation, its
obligation to make payments to Indemnitee following any determination made
or deemed to have been made that such payments are appropriate), Indemnitee
shall have the right to commence a Claim in any court of competent
jurisdiction, as appropriate, to seek a determination by the court, to
challenge or appeal any determination which has been made, or to otherwise
enforce this Agreement. If a Change of Control shall have occurred,
Indemnitee shall have the option to have any such Claim conducted by a
single arbitrator pursuant to the rules of the American Arbitration
Association. Any such judicial proceeding challenging or appealing any
determination shall be deemed to be conducted de novo and without prejudice
by reason of any prior determination to the effect that Indemnitee is not
entitled to indemnification under this Agreement. Any such Claim shall be
at the sole expense of Indemnitee except as provided in Section 1(b)(iii).
(ii) If a determination shall have been made or deemed to
have been made pursuant to this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 3(c),
except if such indemnification is unlawful.
(iii) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 3(c)
that the procedures and presumptions of this Agreement are not valid,
biding and enforceable and shall stipulate in any such court or before any
such arbitrator that the Company is bound by all the provisions of this
Agreement. The Company hereby consents to service of process and to appear
in any such judicial or arbitration proceedings and shall not oppose
Indemnitee's right to commence any such proceedings.
4. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any Claim made
against Indemnitee to the extent Indemnitee has otherwise actually received
payment (under any insurance policy, Articles of Incorporation, Bylaw or
otherwise) of the amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses incurred in connection with any Claim, but not,
however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such Expenses to which
Indemnitee is entitled.
6. Liability Insurance. To the extent the Company maintains
liability insurance applicable to directors, officers, employees, agents or
fiduciaries, Indemnitee shall be covered by such policies in such a manner
as to provide Indemnitee the same rights and benefits as are accorded to
the most favorably insured of the Company's directors, if Indemnitee is a
director; or of the Company's officers, if Indemnitee is not a director of
the Company but is an officer; or of the Company's key employees, agents or
fiduciaries, if Indemnitee is not an officer or director but is a key
employee, agent or fiduciary.
7. Exceptions. Except where so ordered by a court of competent
jurisdiction, any other provision herein to the contrary
notwithstanding,the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for
acts, omissions or transactions from which Indemnitee may not be relieved
of liability under applicable law;
(b) Claims Initiated by Indemnitee. To indemnify or advance
expenses to Indemnitee with respect to Claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except (i) with
respect to actions or proceedings brought to establish or enforce a right
to indemnification under this Agreement or any other agreement or insurance
policy or under the Company's Articles of Incorporation or Bylaws now or
hereafter in effect relating to Claims for Indemnifiable Events, (ii) in
specific cases if the Company's Board of Directors of Directors has
approved the initiation or bringing of such Claim, (iii) as otherwise
required under Section 78.7502 (or other applicable code section) of Nevada
General Corporation Law, or (iv) in actions involving a counterclaim,
interpleader, or third party claim, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance
expense payment or insurance recovery, as the case may be;
(c) Lack of Good Faith. To indemnify Indemnitee for any expenses
incurred by Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by
Indemnitee in such proceeding was not made in good faith or was frivolous;
or
(d) Claims Under Section 16(b). To indemnify Indemnitee for
expenses and the payment of profits arising from the purchase and 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.
8. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's estate, spouse, heirs, executors or personal or
legal representatives after the expiration of two years from the date of
accrual of such cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless asserted by the
timely filing of a legal action within such two-year period; provided,
however, that if any shorter period of limitations is otherwise applicable
to any such cause of action, such shorter period shall govern.
9. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to the "Company"
shall include, 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,
employees, agents or fiduciaries, so that if Indemnitee is or was a
director, officer, employee, agent or fiduciary of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on Indemnitee with respect to an
employee benefit plan; and references to "serving at the request of the
Company" shall include any service as a director, officer, employee, agent
or fiduciary of the Company which imposes duties on, or involves services
by, such director, officer, employee, agent or fiduciary with respect to an
employee benefit plan, its participants or its beneficiaries; and if
Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in a manner
"not opposed to the best interests of the Company" as referred to in this
Agreement.
(c) For purposes of this Agreement a "Change in Control" shall be
deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing more than 50% of the
total voting power represented by the Company's then outstanding Voting
Securities (as defined below), (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the
Company's Board of Directors of Directors of the Company and any new
director whose election by the Company's Board of Directors of Directors or
nomination for election by the Company's 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 Company approve a merger or
consolidation of the Company with any other corporation other than a merger
or consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 50% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of (in one transaction
or a series of transactions) all or substantially all of the Company's
assets.
(d) For purposes of this Agreement, "Independent Legal Counsel"
shall mean an attorney or firm of attorneys, selected in accordance with
the provisions of Section 2(c) hereof, who shall not have otherwise
performed services for the Company, the Indemnitee or any officer,
director, subsidiary or other affiliate thereof within the last five years
(other than with respect to matters concerning the rights of Indemnitee
under this Agreement, or of other indemnitees under similar indemnity
agreements) and who shall be experienced in matters of corporate law. The
Company shall be responsible for any and all fees and expenses of the
Independent Legal Counsel.
(e) For purposes of this Agreement "Potential Change in Control"
shall be deemed to have occurred if (a) the Company enters into an
agreement or arrangement the consummation of which would result in the
occurrence of a Change in Control, (b) any person (including the Company)
publicly announces an intention to take or to consider taking actions which
if consummated would constitute a Change in Control or (c) the Company's
Board of Directors of Directors of the Company adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control
has occurred.
(f) For purposes of this Agreement, a "Reviewing Party" shall
mean any appropriate person or body consisting of the stockholders of the
Company, the Company's board of directors, or Independent Legal Counsel, as
set forth in Section 2(c) of this Agreement in accordance with section
78.751 (or any successor provision) of Nevada General Corporation Law.
(g) For purposes of this Agreement, "Voting Securities" shall
mean any securities of the Company that vote generally in the election of
directors.
10. Contribution. If the indemnification provisions of this
Agreement should be unenforceable under applicable law in whole or in part
or insufficient to hold Indemnitee harmless in respect of any Expenses
incurred by Indemnitee, then for purposes of this Section 10, the Company
shall be treated as if it were, or was threatened to be made, a party
defendant to the subject Claim and the Company shall contribute to the
amounts paid or payable by Indemnitee as a result of such Expenses incurred
by Indemnitee in such proportion as is appropriate to reflect the relative
benefits accruing to the Company on the one hand and Indemnitee on the
other and the relative fault of the Company on the one hand and Indemnitee
on the other in connection with such Claim, as well as any other relevant
equitable considerations. For purposes of this Section 10 the relative
benefit of the Company shall be deemed to be the benefits accruing to it
and to al of its directors, officers, employees and agents (other than
Indemnitee) on the one hand, as a group and treated as one entity, and the
relative benefit of Indemnitee shall be deemed to be an amount not greater
than the Indemnitee's yearly base salary or Indemnitee's compensation from
the Company during the first year in which the Indemnifiable Event forming
the basis for the subject Claim was alleged to have occurred. The relative
fault shall be determined by reference to, among other things, the fault of
the Company and all of its directors, officers, employees and agents (other
than Indemnitee) on the one hand, as a group and treated as one entity, and
Indemnitee's and such group's relative intent, knowledge, access to
information and opportunity to have altered or prevented the Indemnifiable
Event forming the basis for the subject Claim.
11. Nondisclosure of Payments. Except as expressly required by
Federal securities laws, neither party shall disclose any payments under
this Agreement unless prior approval of the other party is obtained. Any
payments to the Indemnitee that must be disclosed shall, unless otherwise
required by law, be described only in Company proxy or information
statements relating to special and/or annual meetings of the Company's
stockholders, and the Company shall afford the Indemnitee the reasonable
opportunity to review all such disclosures and, if requested, to explain in
such statement any mitigating circumstances regarding the events reported.
12. Covenant Not to Xxx, Limitation of Actions and Release of Claims.
No legal action shall be brought and no cause of action shall be asserted
by or on behalf of the Company (or any of its subsidiaries) against the
Indemnitee, his spouse, heirs, executors, personal representatives or
administrators after the expiration of two years from the date the
Indemnitee ceases (for any reason) to serve as either an officer or a
director of the Company, and any claim or cause of action of the Company
(or any of its subsidiaries) shall be extinguished and deemed released
unless asserted by filing of a legal action within such two-year period.
13. Indemnification of Indemnitee's Estate. Notwithstanding any
other provision of this Agreement, and regardless whether indemnification
of the Indemnitee would be permitted and/or required under this Agreement,
if the Indemnitee is deceased, the Company shall indemnify and hold
harmless the Indemnitee's estate, spouse, heirs, administrators, personal
representatives and executors (collectively, the "Indemnitee's Estate")
against, and the Company shall assume, any and all claims, damages,
expenses (including attorneys' fees), penalties, judgments, fines and
amounts paid in settlement actually incurred by the Indemnitee or the
Indemnitee's Estate in connection with the investigation, defense,
settlement or appeal of any action described in Section 1 hereof.
Indemnification of the Indemnitee's Estate pursuant to this Section 13
shall be mandatory and not require a Determination or any other finding
that the Indemnitee's conduct satisfied a particular standard of conduct.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
15. Binding Effect; Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns, including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all
or substantially all of the business and/or assets of the Company, spouses,
heirs, and personal and legal representatives. The Company shall require
and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial
part, of the business and/or assets of the Company, by written agreement in
form and substance satisfactory to Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had
taken place. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as a director, officer, employee, agent or
fiduciary of the Company or of any other enterprise at the Company's
request.
16. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement or under any liability insurance policies
maintained by the Company to enforce or interpret any of the terms hereof
or thereof, Indemnitee shall be entitled to be paid all Expenses incurred
by Indemnitee with respect to such action, regardless of whether Indemnitee
is ultimately successful in such action, and shall be entitled to the
advancement of Expenses with respect to such action, unless, as a part of
such action, a court of competent jurisdiction over such action determines
that each of the material assertions made by Indemnitee as a basis for such
action was not made in good faith or was frivolous. In the event of an
action instituted by or in the name of the Company under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee shall
be entitled to be paid all Expenses incurred by Indemnitee in defense of
such action (including costs and expenses incurred with respect to
Indemnitee's counterclaims and cross-claims made in such action), and shall
be entitled to the advancement of Expenses with respect to such action,
unless, as a part of such action, a court having jurisdiction over such
action determines that each of Indemnitee's material defenses to such
action was made in bad faith or was frivolous.
17. Notice. All notices and other communications required or
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given (a) five calendar days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if
delivered by hand, (c) one business day after the business day of deposit
with Federal Express or similar overnight courier, freight prepaid, or (d)
one calendar day after the business day of delivery by facsimile
transmission, if delivered by facsimile transmission with copy by first
class mail, postage prepaid, and shall be addressed if to the Indemnitee,
at the Indemnitee's address as set forth beneath his signature to this
Agreement and if to the Company at the address of its principal corporate
offices (attention: Secretary) or at such other address as such party may
designate by ten calendar days' advance written notice to the other party
hereto.
18. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of
Nevada for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be commenced, prosecuted and
continued only in the court of competent jurisdiction of the State of
Nevada, which shall be the exclusive and only proper forum for adjudicating
such a claim.
19. Severability. The provisions of this Agreement shall be severable
in the event that any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion
of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
20. Choice of Law. This Agreement shall be governed by and its
provisions construed and enforced in accordance with the laws of the State
of Nevada, as applied to contracts between Nevada residents, entered into
and to be performed entirely within the State of Nevada, without regard to
the conflict of laws principles thereof.
21. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all documents required
and shall do all acts that may be necessary to secure such rights and to
enable the Company effectively to bring suit to enforce such rights.
22. Amendment and Termination. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless it is in
writing signed by both the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
23. Integration and Entire Agreement. This Agreement sets forth the
entire understanding between the parties hereto and supersedes and merges
all previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties
hereto.
24. No Construction as Employment Agreement. Nothing contained in
this Agreement shall be construed as giving Indemnitee any right to be
retained in the employ of the Company or any of its subsidiaries.
25. Effective Date. The provisions of this Agreement shall cover
claims, actions, suits and proceedings whether now pending or hereafter
commenced and shall be retroactive to cover acts or omissions or alleged
acts or omissions which heretofore have taken place.
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
J NET ENTERPRISES, INC.,
a Nevada corporation
By ____________________________
Name:
Title:
AGREED TO AND ACCEPTED BY:
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