INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this “Agreement”)
is
executed on and effective as of October ,
2007
(the “Effective
Date”),
by
and between Cab-tive Advertising, Inc., a Nevada corporation, and its direct
and
indirect subsidiaries (the “Company”),
and
_______ (“Indemnitee”).
Recitals:
The
Company and Indemnitee recognize the difficulty in obtaining directors’ and
officers’ liability insurance, the increases in the cost of such insurance, and
the general limitations in the coverage of such insurance.
The
Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting officers and directors to expensive litigation
risks at the same time as the availability and coverage of liability insurance
has been severely limited.
Indemnitee
does not regard the current protection available as adequate under the present
circumstances, and Indemnitee and other officers and directors of the Company
may not be willing to serve or continue to serve as officers and directors
without additional protection.
The
Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve as officers and directors of the
Company and to indemnify its officers and directors so as to provide them with
the maximum protection permitted by law.
NOW,
THEREFORE,
in
consideration of the foregoing recitals and the mutual promises set forth in
this Agreement, the parties to this Agreement agree as follows:
Section
1. Indemnification.
1.1 Third
Party Proceedings.
The
Company shall indemnify Indemnitee and any partnership, corporation, trust,
or
other entity of which Indemnitee is or was a partner, stockholder, trustee,
director, officer, employee, or agent (each such partnership, corporation,
trust, or other entity also being referred to as an “Indemnitee”)
if
Indemnitee is or was 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 (other than an action by or in the
right of the Company) by reason of the fact that Indemnitee is or was a
director, officer, employee, or agent of the Company, or any subsidiary of
the
Company, by reason of any action or inaction on the part of Indemnitee while
an
officer or director or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys’ fees), judgments, fines, and amounts paid
in settlement (if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) actually and reasonably incurred
by
Indemnitee in connection with such action, suit, or proceeding, 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 Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful.
1
The
termination of any action, suit, or 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 did
not
act in good faith and in a manner that Indemnitee reasonably believed to be
in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that Indemnitee’s
conduct was unlawful.
1.2 Proceedings
By or in the Right of the Company.
The
Company 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
or
suit by or in the right of the Company or any subsidiary of the Company 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 Company, or any subsidiary of
the
Company, by reason of any action or inaction on the part of Indemnitee while
an
officer or director or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys’ fees) and, to the fullest extent
permitted by law, amounts paid in settlement, in each case to the extent
actually and reasonably incurred by Indemnitee in connection with the defense
or
settlement of such action or suit, 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 Company.
1.3 Mandatory
Payment of Expenses.
To the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any action, suit, or proceeding referred to in Sections
1.1
and
1.2
or the
defense of any claim, issue, or matter in Section
1.1
or
1.2,
Indemnitee shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by Indemnitee in connection with such
defense.
Section
2. Expenses:
Indemnification Procedure.
2.1 Advancement
of Expenses.
The
Company shall advance all expenses incurred by Indemnitee, and, to the fullest
extent permitted by law, amounts paid in settlement by Indemnitee, in connection
with the investigation, defense, settlement, or appeal of any civil or criminal
action, suit, or proceeding referenced in Section
1.1
or
1.2
of this
Agreement. Indemnitee hereby undertakes to repay such amounts advanced only
if,
and to the extent that, it shall ultimately be determined in a non-appealable,
final judgment that Indemnitee is not entitled to be indemnified by the Company
as authorized by this Agreement. The advances to be made under this Agreement
shall be paid by the Company to Indemnitee within 20 days following delivery
of
a written request for such advance by Indemnitee to the Company.
2.2 Notice/Cooperation
by Indemnitee.
Indemnitee shall, as a condition precedent to his or its 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 shall or could
be
sought under this Agreement. Notice to the Company shall be directed to the
President of the Company at the address shown on the signature page of this
Agreement, or such other address as the Company 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 Company. In addition, Indemnitee shall give the Company
such
information and cooperation as it may reasonably require and as shall be within
Indemnitee’s power.
2
2.3 Procedure.
Any
indemnification and advances provided for in Section
1
and this
Section
2
shall be
made no later than 20 days after receipt of the written request of Indemnitee.
If a claim under this Agreement, under any statute, or under any provision
of
the Company’s Articles of Incorporation or Bylaws providing for indemnification,
is not paid in full by the Company within 20 days after a written request for
payment of such claim has first been received by the Company, Indemnitee may,
but need not, at any time thereafter bring an action against the Company to
recover the unpaid amount of the claim and, subject to Section
12
of this
Agreement, Indemnitee shall also be entitled to be paid for the expenses
(including 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 action, suit, or proceeding in advance of its
final disposition) that Indemnitee has not met the standards of conduct that
make it permissible under applicable law for the Company to indemnify Indemnitee
for the amount claimed, but the burden of proving such defense shall be on
the
Company and Indemnitee shall be entitled to receive interim payments of expenses
pursuant to Section
2.1
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 Company contests Indemnitee’s right to indemnification, the question of
Indemnitee’s right to indemnification shall be for the court to decide, and
neither the failure of the Company (including its Board of Directors, any
committee or subgroup 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 Company (including its Board of Directors, any committee
or
subgroup 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.
2.4 Notice
to Insurers.
If, at
the time of the receipt of a notice of a claim pursuant to Section
2.2
of this
Agreement, the Company has directors’ and officers’ liability insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding 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 the Indemnitee,
all
amounts payable as a result of such proceeding in accordance with the terms
of
such policies.
2.5 Selection
of Counsel.
In the
event the Company shall be obligated under Section
2.1
of this
Agreement to pay the expenses of any proceeding against Indemnitee, the Company,
if appropriate, shall be entitled to assume the defense of such proceeding,
with
counsel approved by Indemnitee (whose approval shall not be unreasonably
withheld), 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 shall continue to
be
liable to Indemnitee under this Agreement for any fees of counsel subsequently
incurred by Indemnitee with respect to the same proceeding.
Section
3. Additional Indemnification Rights;
Nonexclusivity.
3
3.1 Scope.
Notwithstanding any other provision of this Agreement, the Company hereby agrees
to indemnify the 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 that expands the right
of a Nevada corporation to indemnify a member of its board of directors or
an
officer, such changes shall be, ipso
facto,
within
the purview of Indemnitee’s rights and Company’s obligations under this
Agreement. In the event of any change in any applicable law, statute, or rule
that narrows the right of a Nevada corporation to indemnify a member of its
board of directors or an officer, such changes, 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 under
this agreement.
3.2 Nonexclusivity.
The
indemnification provided by this Agreement shall not be deemed exclusive of
any
rights to which Indemnitee or any other Indemnitee may be entitled under the
Company’s Articles of Incorporation, its Bylaws, any agreement, any vote of
stockholders or disinterested directors, the Revised Statues of the State of
Nevada, or otherwise, both as to action in Indemnitee’s official capacity and as
to action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee and each other
Indemnitee for any action taken or not taken while Indemnitee is or was serving
in an indemnified capacity even though he may have ceased to serve in such
capacity at the time of any action, suit, or other covered
proceeding.
Section
4. Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the expenses, judgments, fines, or
penalties actually or reasonably incurred by Indemnitee in the investigation,
defense, appeal, or settlement of any civil or criminal action, suit, or
proceeding, but not, however, for the total amount of any such expenses,
judgments, fines, or penalties, the Company shall nevertheless indemnify
Indemnitee for the portion of such expenses, judgments, fines, or penalties
to
which Indemnitee is entitled.
Section
5. Directors
and Officers Liability Insurance Extended Reporting
Endorsement.
For the
period beginning on the date of this Agreement and continuing for at least
five
years thereafter, Company
acknowledges and agrees to purchase at Company’s expense an extended reporting
endorsement, or a "tail," for each claims-made insurance policy now in effect
at
the Company or its wholly-owned subsidiary, Full Circle Industries, Inc., to
provide continued coverage for any event or omission which may have occurred
during the policy period which could give rise to coverage under such policy.
Company shall name Indemnitee as an additional insured with respect to each
such
extended reporting endorsement.
Section
6. Severability.
The
provisions of this Agreement shall be severable as provided in this Section
6.
If this
Agreement or any portion of this Agreement shall be invalidated on any ground
by
any court of competent jurisdiction, then the Company shall nevertheless
indemnify Indemnitee and each other Indemnitee to the full extent permitted
by
any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with
its
terms.
4
Section
7. Exceptions.
Any
other provision in this Agreement to the contrary notwithstanding, the Company
shall not be obligated pursuant to the terms of this Agreement:
7.1 Claims
Initiated by Indemnitee.
To
indemnify or advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of defense,
except with respect to proceedings brought to establish or enforce a right
to
indemnification under this Agreement or any other statute or law or otherwise
as
required under the Revised Statues of the State of Nevada, but such
indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board of Indemnitees finds it to be
appropriate;
7.2 Insured
Claims.
To
indemnify Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA, excise taxes or
penalties, and amounts paid in settlement) that have been paid directly to
Indemnitee by an insurance carrier under a policy of officers’ and directors’
liability insurance maintained by the Company; or
Section
8. Construction
Of Certain Phrases.
8.1 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, so that if Indemnitee 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, 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.
8.2 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, or agent of the Company
that imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its participants,
or 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.
Section
9. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
Section
10. Successors
And Assigns.
This
Agreement shall be binding upon the Company and its successors and assigns,
and
shall inure to the benefit of Indemnitee and each other Indemnitee and their
respective estates, heirs, successors, legal representatives, and
assigns.
5
Section
11. Attorneys’
Fees.
In the
event that any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys’ fees, 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 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 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, 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 was made
in bad faith or was frivolous.
Section
12. Notice.
All
notices, requests, demands, and other communications under this Agreement shall
be in writing and shall be deemed duly given on the third business day after
the
date postmarked, if delivered by domestic certified or registered mail with
postage prepaid, or, if delivered by other means, on the date actual notice
is
received. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written
notice.
Section
13. Consent
To Jurisdiction.
The
Company and Indemnitee each hereby irrevocably consent to the non-exclusive
jurisdiction of the courts of the State of Delaware for all purposes in
connection with any action or proceeding that arises out of or relates to this
Agreement and agree that any action instituted under this Agreement may be
brought in any court of competent jurisdiction in the State of
Delaware.
Section
14. Choice
Of Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND ITS PROVISIONS CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS BETWEEN DELAWARE
RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN
DELAWARE.
[Signature
Pages Follow]
6
IN
WITNESS WHEREOF, the parties to this Agreement have executed this Agreement
as
of the date first written above.
| COMPANY | ||
| CAB-TIVE ADVERTISING, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
|
Address:
|
||
| INDEMNITEE: | ||
| Name: | ||
|
(address)
|
||
