Exhibit 10.3
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "AGREEMENT") is entered into as of
_________, 2001 between Intra-Asia Entertainment Corporation, a Delaware
corporation that has its principal executive office in the State of California
(the "COMPANY"), and ________________________ ("INDEMNITEE").
RECITALS
A. The Company believes that it is essential to its best interests to
attract and retain highly capable persons to serve as directors, officers and
agents of the Company. Indemnitee is a director, officer and/or other agent of
the Company. The Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors, officers and other
agents of corporations.
B. In recognition of Indemnitee's need for substantial protection
against personal liability and in order to induce Indemnitee to continue to
provide services to the Company, the Company wishes to provide in this Agreement
for the indemnification of, and the advancement of expenses to, Indemnitee to
the fullest extent permitted by law and as set forth in this Agreement and, to
the extent applicable insurance is maintained, for the coverage of Indemnitee
under the Company's policy of directors' and officers' liability insurance.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, receipt and sufficiency of which hereby are
acknowledged, the Company and Indemnitee hereby agree as follows:
1. CERTAIN DEFINITIONS.
(a) BOARD: the Board of Directors of the Company.
(b) EXPENSES:
(i) Any expense, liability or loss (including, without
limitation, reasonable attorneys' fees, judgments, fines, ERISA excise taxes and
penalties and amounts paid in settlement);
(ii) Any interest, assessments or other charges imposed
on any of the items in part (i) of this Section 1(b); and
(iii) Any federal, state, local or foreign taxes imposed
as a result of the actual or deemed receipt of any payments of amounts described
in this Section 1(b).
(c) INDEMNIFIABLE EVENT: Any event or occurrence that takes
place either before or after the execution of this Agreement and that is related
to:
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(i) The fact that Indemnitee is or was a director,
officer, employee or other agent of the Company or while a director, officer,
employee or other agent of the Company is or was serving at the request of the
Company as a director, officer, employee or other agent of Weifang Fuhua
Entertainment Garden Co., Ltd. (also known as Weifang Fuhua Amusement Park Co.,
Ltd.), a sino-foreign equity joint venture of the People's Republic of China, or
of another foreign or domestic corporation, partnership, limited liability
company, employee benefit plan, trust or other enterprise, or was a director,
officer, employee or other agent of a foreign or domestic corporation or other
enterprise that was a predecessor of the Company or of another enterprise at the
request of such predecessor; or
(ii) Anything done or not done by Indemnitee in any such
capacity, whether or not the basis of the proceeding is an alleged action in an
official capacity as a director, officer, employee or other agent, or in any
other capacity while serving as a director, officer, employee or other agent of
the Company, as described in this Section 1(c).
(d) PROCEEDING: Any threatened, pending or completed action,
suit or proceeding, or any inquiry, hearing or investigation (whether conducted
by the Company or any other party) that Indemnitee in good faith believes might
lead to the institution of any such action, suit or proceeding, whether civil,
criminal, administrative or investigative.
2. AGREEMENT TO INDEMNIFY.
(a) GENERAL AGREEMENT. In the event Indemnitee was, is or
becomes a party to or a participant in, or is threatened to be made a party to
or a participant in, a Proceeding (including, without limitation, as a witness)
by reason of (or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee from and against any and all Expenses incurred by
Indemnitee in connection with the Proceeding to the fullest extent permitted by
law, as the same exists or may hereafter be amended or interpreted (but in the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the Company to provide broader
indemnification rights than were permitted prior to that amendment or
interpretation). The parties to this Agreement intend that this Agreement shall
provide for indemnification in excess of that expressly permitted by statute,
including, without limitation, any indemnification provided by the Company's
Certificate of Incorporation, its Bylaws, a vote of its stockholders or
disinterested directors or applicable law.
(b) INDEMNITEE'S INITIATION OF A PROCEEDING. Notwithstanding
anything in this Agreement to the contrary, Indemnitee shall not be entitled to
indemnification under this Agreement in connection with any Proceeding initiated
by Indemnitee against the Company or any director or officer of the Company
unless:
(i) The Company has joined in or the Board has consented
to the initiation or prosecution of such Proceeding; or
(ii) The Proceeding is one to enforce indemnification
rights under Section 4(b) below.
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(c) INDEMNITEE'S SUCCESSFUL DEFENSE OF A PROCEEDING. Without
limiting the scope of Section 2(a) above, to the extent that Indemnitee has been
successful on the merits in defense of any Proceeding relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter in such
Proceeding, Indemnitee shall be indemnified against all Expenses incurred in
connection with that Proceeding.
(d) PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion of
Expenses, but not for the total amount of Expenses, the Company shall indemnify
Indemnitee for the portion to which Indemnitee is entitled.
(e) PROHIBITED INDEMNIFICATION. Notwithstanding anything in this
Agreement to the contrary, no indemnification under this Agreement shall be paid
by the Company on account of any Proceeding (i) in which such indemnification is
prohibited by applicable law or (ii) in which the Expenses for which
indemnification is sought are the direct result of the willful misconduct of
Indemnitee.
(f) REQUIRED SUBMISSION OF INDEMNIFICATION ISSUES TO A COURT.
The Company and Indemnitee acknowledge that, in certain instances, federal or
state law or applicable public policy may require the Company to submit the
question of indemnification to a court for a determination of the Company's
right under law or public policy to indemnify Indemnitee. For example, in
connection with any registered public offering of the Company's securities, the
Company will be required to make such undertaking to the Securities and Exchange
Commission. Indemnitee acknowledges and agrees that the Company will not be in
breach of this Agreement for any such submission.
3. REVIEWING PARTY. For purposes of this Agreement, the "REVIEWING
PARTY" shall be independent counsel selected in good faith by the Board.
Independent counsel shall not have performed services for the Company or
Indemnitee (other than in connection with indemnification matters) within the
previous three years. Furthermore, 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 Company
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement. If the Company maintains that it is not obligated, or that it may not
be obligated, to make an indemnification payment or advance requested by
Indemnitee, the Reviewing Party shall render a written opinion to the Company
and Indemnitee on whether and to what extent Indemnitee should be permitted to
be indemnified under applicable law and this Agreement. The Company agrees to
pay the reasonable fees of the Reviewing Party and to indemnify fully such
counsel against any and all expenses, including, without limitation, attorneys'
fees, claims, liabilities, loss, and damages arising out of or relating to this
Agreement or the engagement of the Reviewing Party under this Agreement.
4. INDEMNIFICATION PROCESS AND APPEAL.
(a) INDEMNIFICATION PAYMENTS AND EXPENSE ADVANCES. Indemnitee
shall receive indemnification of Expenses from the Company in accordance with
this Agreement
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within thirty (30) days after Indemnitee has made written demand on the Company
for indemnification unless the Reviewing Party has given a written opinion to
the Company that Indemnitee is not entitled to indemnification under this
Agreement or applicable law (subject to Indemnitee's enforcement rights
described in Section 4(b) below). Indemnitee shall submit to the Company
statements that evidence all such Expenses in reasonable detail, including,
without limitation, Expenses for which advances are sought pursuant to the
following paragraph of this Section 4(a).
Without limiting the generality of the preceding paragraph,
within thirty (30) days after receipt of a written demand from Indemnitee, the
Company (subject to Section 5(c) below) shall advance to Indemnitee all
out-of-pocket Expenses (including, without limitation, reasonable attorneys'
fees, court costs, travel expenses, fees of experts, witness fees and other
costs and expenses of the type customarily incurred in connection with the
prosecuting, defending, being a witness in or investigating a Proceeding) that
are incurred by Indemnitee in connection with (i) prosecuting, defending, being
a witness in or investigating any Proceeding that gives rise to a good faith
claim by Indemnitee for indemnification under this Agreement or (ii) a claim or
action that is brought in good faith by Indemnitee to enforce his rights under
this Agreement or under any directors' and officers' liability insurance policy
maintained by the Company. However, unless otherwise determined by a court
pursuant to Section 4(b) below, the Company shall not be obligated to make such
advances if the Reviewing Party has given a written opinion to the Company that
such advances are prohibited by applicable law or this Agreement. If and to the
extent that a final judicial determination (subject to no further rights of
appeal) is made that Indemnitee is not entitled to be indemnified with respect
to such advanced Expenses under this Agreement or applicable law, Indemnitee
hereby agrees to repay such advances to the Company within twenty (20) days
after such final judicial determination. Indemnitee's agreement to repay such
advanced amounts shall be unsecured, and no interest shall be charged thereon.
(b) SUIT TO ENFORCE RIGHTS. Regardless of any action by the
Reviewing Party, if Indemnitee has not received full indemnification within
thirty (30) days after making a demand in accordance with Section 4(a),
Indemnitee shall have the right to enforce his indemnification rights under this
Agreement by commencing litigation in a federal or state court that is located
in the State of California or Delaware (but in no other state or foreign
country). Such litigation may seek an initial determination by the court or
challenge any determination made by the Reviewing Party. Any determination by
the Reviewing Party not challenged by Indemnitee or the Company shall be binding
on the Company and Indemnitee. The remedy provided for in this Section 4(b)
shall be in addition to any other remedies available to Indemnitee in law or
equity. However, notwithstanding anything in this Agreement to the contrary and
except for purposes of enforcing a judgment, Indemnitee shall not be entitled to
commence or maintain litigation to enforce or interpret this Agreement in any
court that is not located in the State of Delaware or California.
(c) DEFENSE TO INDEMNIFICATION, BURDEN OF PROOF AND
PRESUMPTIONS. It shall be a defense to any action brought by Indemnitee against
the Company to enforce this Agreement that it is not permissible, under this
Agreement or applicable law, for the Company to indemnify Indemnitee for the
amount claimed. In connection with any such action or any determination by the
Reviewing Party or otherwise on whether Indemnitee is entitled to be indemnified
under this Agreement, the burden of proving such a defense or determination
shall
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be on the Company. Neither the failure of the Reviewing Party or the Company to
have made a determination before the commencement of such action by Indemnitee
that indemnification is proper under the circumstances because Indemnitee has
met the standard of conduct set forth in applicable law, nor an actual
determination by the Reviewing Party or the Company that Indemnitee had 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.
For purposes of this Agreement, the termination of any claim, action, suit or
proceeding by judgment, order, settlement (whether with or without court
approval), conviction or on 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.
5. DEFENSE OF PROCEEDINGS.
(a) Promptly after receipt by Indemnitee of notice of the
commencement of or the threat of commencement of any Proceeding, Indemnitee
shall, if Indemnitee believes that indemnification with respect thereto may be
sought from the Company under this Agreement, notify the Company of the
commencement or threat of commencement thereof, provided, however, that failure
of Indemnitee to provide such notice will not relieve the Company of its
liability hereunder if the Company receives timely notice of such Proceeding
from any other source.
(b) If, at the time of the receipt of a notice of a Proceeding
pursuant to Section 5(a) above, the Company has directors' and officers'
liability insurance in effect, the Company shall give prompt notice of such
Proceeding to the insurer in accordance with the procedures set forth in the
applicable policy. The Company shall thereafter take all necessary or
appropriate action to cause such insurer to pay, on behalf of Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms of
such insurance policy.
(c) If the Company is obligated under this Agreement to pay or
advance Indemnitee's Expenses in any Proceeding, the Company shall be entitled
to assume the defense of such Proceeding with counsel selected by the Company
upon the delivery to Indemnitee of written notice of its election to do so.
After delivery of such notice and the retention of such counsel by the Company,
the Company shall not be liable to Indemnitee this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same Proceeding
except for reasonable costs of investigation. Indemnitee shall have the right to
employ his own counsel in such Proceeding at Indemnitee's expense. Furthermore,
if (i) the employment of counsel by Indemnitee has been previously authorized by
the Company, (ii) there is a demonstrable, material conflict of interest between
the Company and Indemnitee in the conduct of such Proceeding, or (iii) the
Company shall not, in fact, have employed counsel to assume the defense of such
Proceeding, the fees and expenses of Indemnitee's counsel shall be paid by the
Company.
(d) Notwithstanding anything in this Agreement to the contrary,
the Company shall not be liable to indemnify Indemnitee under this Agreement for
any amounts paid in settlement of any Proceeding consented to by Indemnitee
without the Company's written
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consent, which shall not be unreasonably withheld. The Company shall be
permitted to settle any Proceeding for which it provides indemnification to
Indemnitee under this Agreement, except that it shall not settle any Proceeding
in any manner that would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent, which shall not be unreasonably withheld.
Furthermore, the Company shall not be liable to indemnify Indemnitee under this
Agreement with regard to any settlement, award or judgment if the Company was
not given a reasonable and timely opportunity, at its expense, to defend such
Proceeding in accordance with the provisions of this Section 5.
6. NONEXCLUSIVITY. The rights of Indemnitee under this Agreement shall
be in addition to any other rights Indemnitee may have under the Company's
Certificate of Incorporation, Bylaws, applicable law or otherwise.
7. DIRECTORS' AND OFFICERS' INSURANCE. The Company hereby agrees that,
so long as Indemnitee shall continue to serve as a director, officer, employee
or other agent of the Company and thereafter for so long as Indemnitee shall be
subject to any Proceeding by reason of the fact that Indemnitee was a director,
officer, employee or other agent of the Company, it shall, subject to the last
sentence of this Section 7, maintain in full force and effect directors' and
officers' liability insurance in reasonable amounts from an established and
reputable insurer. In such insurance policy, 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 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, if
Indemnitee is not an officer or director but is a key employee or other agent.
Notwithstanding anything in this Agreement to the contrary, the Company shall
have no obligation to obtain or maintain any such insurance if the Board
determines in good faith that such insurance is not reasonably available, that
the premium costs for such insurance are disproportionate to the amount of
coverage provided, that the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit or that Indemnitee is
covered by similar insurance maintained by a subsidiary or other affiliate of
the Company.
8. ENTIRE AGREEMENT; AMENDMENTS; WAIVERS; COUNTERPARTS. This Agreement,
together with the rights provided to Indemnitee under the Company's Certificate
of Incorporation and Bylaws, constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes all prior written and
oral agreements between the parties pertaining to such subject matter. No
amendment of this Agreement shall be binding unless executed in writing by the
Company and Indemnitee. No waiver of any of the provisions of this Agreement
shall operate as a waiver of any other provisions of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver. Except as
specifically provided in this Agreement, no failure to exercise or delay in
exercising any right or remedy under it shall constitute a waiver of the right
or remedy. This Agreement may be executed in counterparts, which together shall
constitute one and the same instrument.
9. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of that payment to all of the rights
of recovery of Indemnitee, who shall do everything that may be necessary or
appropriate to secure such rights, including, without
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limitation, the execution of any documents necessary or appropriate to enable
the Company effectively to bring suit to enforce such rights.
10. 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 received payment (under any
insurance policy, bylaw or otherwise) of the amounts otherwise indemnifiable
under this Agreement.
11. BINDING EFFECT AND CONTINUATION OF INDEMNIFICATION OBLIGATIONS. This
Agreement shall be binding on and inure to the benefit of and be enforceable by
the parties to it and their respective successors (including any direct or
indirect successor by purchase, merger or otherwise to all or substantially all
of the Company's business or assets or both), assigns, spouses, heirs and
personal and legal representatives. The indemnification provided under this
Agreement shall continue for Indemnitee's benefit with respect to any action
taken or not taken while serving in an indemnified capacity pertaining to an
Indemnifiable Event even though Indemnitee may have ceased to serve in such
capacity at the time of any Proceeding.
12. SEVERABILITY. If any portion of this Agreement shall be held by a
court of competent jurisdiction to be invalid, void or otherwise unenforceable,
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, void or
unenforceable.
13. NO RIGHT TO CONTINUE AS A DIRECTOR OR AN OFFICER. Nothing in this
Agreement is intended to provide Indemnitee with any right to continue as a
director or as an officer, employee or other agent of the Company or of any of
its affiliates.
14. NOTICES. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery, upon
deposit in the United States mail by registered or certified mail with postage
and fees prepaid or upon delivery to an overnight courier service, addressed to
the other party at the address hereinafter shown below such party's signature or
at such other address as such party may designate by at least ten (10) days'
advance written notice to the other party.
15. GOVERNING LAW, CONSENT TO JURISDICTION AND WAIVER OF JURY TRIAL.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware without giving effect to conflict-of-law
principles. Each of the Company and Indemnitee hereby consents to the
jurisdiction of the federal and state courts that are located in the States of
California and Delaware with respect to any action that is brought to enforce or
interpret this Agreement and hereby agrees that personal jurisdiction over each
of them may be effected by service of process addressed and delivered as
provided in Section 14 above. With respect to any dispute arising under this
Agreement, each of the Company and Indemnitee hereby irrevocably waives all
rights that such person may have to demand a jury trial.
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16. ATTORNEYS' FEES. In the event that any dispute relating to this
Agreement should result in litigation or arbitration, the prevailing party in
such dispute shall be entitled to recover from the other party all reasonable
fees, costs and expenses of enforcing any right of the prevailing party,
including, without limitation, reasonable attorneys' fees and expenses, all of
which shall be deemed to have accrued upon the commencement of such action and
shall be paid whether or not such action is prosecuted to judgment.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date specified above.
INTRA-ASIA ENTERTAINMENT CORPORATION
By:
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Print Name and Title
Address of the Company:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Board of Directors
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Signature of Indemnitee
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Print Name
Address of Indemnitee:
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