INDEMNIFICATION AGREEMENT
EXHIBIT
10.77
This
Indemnification Agreement (this “Agreement”) is made this ___ day of
_______________, 20__, between Reading International, Inc., a Nevada corporation
(the “Company”) and _______________, an individual (“Indemnitee”).
RECITALS
Whereas,
Indemnitee is either a member of the board of directors of the Company (“Board”
or “Board of Directors”) or an officer of the Company, or both, and in such
capacity or capacities is performing a valuable service for the
Company.
Whereas,
the Corporation has adopted bylaws (“Bylaws”) providing for the indemnification
of the officers, directors, employees and agents of the Company.
Whereas,
the Bylaws and Nevada Revised Statute Section 78.751 (the “State Statute”
specifically provide that they are not exclusive, and thereby contemplate that
agreements may be entered into between the Company and the members of its Board
of Directors and officers with respect to indemnification of such directors and
officers.
Whereas,
Indemnitee is willing to serve, continue to serve and to take on additional
service for and on behalf of the Company on the condition that Indemnitee is
indemnified as set forth in this Agreement.
Whereas,
it is intended that Indemnitee shall be paid promptly by the Company all amounts
necessary to effectuate in full the indemnity provided in this
Agreement.
Whereas,
to induce Indemnitee continue to serve as a member of the Board of Directors of
the Company, or as an officer of the Company, or both, the Company has
determined and agreed to enter into this Agreement with Indemnitee.
Now,
Therefore, in consideration of Indemnitee’s continued service as a director or
officer of the Company after the date hereof, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and Indemnitee hereby agree as follows:
AGREEMENT
1. Indemnification
of
Indemnitee. The
Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest
extent authorized or permitted by the provisions of the State Statute, or any
successor statute or amendment thereof, or any other statutory provisions
authorizing or permitting such indemnification that is adopted after the date of
this Agreement.
2. Additional
Indemnity. Subject only to the exclusions set forth in Section
3 of this Agreement, the Company hereby further agrees to hold harmless,
indemnify and defend Indemnitee:
(a) Against
any and all expenses (including fees for attorneys, accountants, private
investigators, court and transcript costs, fees and expenses of witnesses,
travel expenses and all other like disbursements or expenses reasonably incurred
by or for Indemnitee), judgments damages, fines, penalties, and amounts paid in
settlement (including all interest assessments and other charges paid or payable
in connection with or in respect of such judgment, fines, penalties, or amounts
paid in settlement) actually and reasonably incurred by or for Indemnitee 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 right of the Company)(a “Covered Action”) to which Indemnitee is made
a party as a result of the fact that at the time of the act or omission which is
the subject matter of such Covered Action the Indemnitee is or was a director,
officer, employee or agent of the Company, or 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; and
(b) Otherwise
to the fullest extent as may be provided to Indemnitee by the Company under the
non-exclusivity provisions of Article VII of the Bylaws of the Company and the
State Statute.
3. Limitations
on Additional Indemnity. No indemnity pursuant to Section 2 of
this Agreement shall be paid by the Company to the extent that:
(a) Payment
is actually made to Indemnitee under a valid and collectible insurance policy or
policies, except with respect to any excess beyond the amount of payment under
such insurance policy or policies. Notwithstanding the availability
of such insurance policy or policies, Indemnitee also may claim indemnification
from the Company pursuant to this Agreement by assigning to the Company any
claims under such insurance policy or policies to the extent Indemnitee is paid
by the Company.
(b) Indemnitee
is indemnified by the Company otherwise than pursuant to this
Agreement.
(c) Judgment
is rendered against Indemnitee for the payment of dividends or other
distributions to stockholders of the Company in violation of the provisions of
Nevada Revised Statutes § 78.300, as amended.
(d) Judgment
is rendered against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended,
or other similar provisions of any federal, state or local statutory
law.
(e) Indemnitee’s
conduct giving rise to the claim for indemnification is finally adjudged by a
court of competent jurisdiction to have been a breach of fiduciary duty which
involved intentional misconduct, fraud or a knowing violation of the
law.
(f) Except
as otherwise provided in this Agreement, in connection with all or any part of a
suit or other proceeding which is initiated or maintained by or on behalf of
Indemnitee, or any suit or other proceeding by Indemnitee against the Company or
its directors, officers, employees or other agents, unless (i) such
indemnification is expressly required to be made by Nevada law; (ii) the suit or
other proceeding was expressly authorized by the Board of Directors of the
Company in
writing
or (iii) such indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the Company under Nevada
law.
4. Continuation
of Indemnity. All agreements and obligations of the Company
contained in this Agreement shall continue during the period Indemnitee is a
director, officer, employee or agent of the Company (or 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) and shall
continue thereafter so long as Indemnitee shall be subject to any possible claim
or threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that Indemnitee
was a director or officer of the Company, or both, or serving in any other
capacity referred to in this Agreement.
5. Advancement
of Expenses. In the event Indemnitee incurs costs or expenses
in connection with the defense of any civil, criminal, administrative or
investigative action, suit or proceeding (including any costs or expenses
incurred for any appeal therefore), the Company agrees to pay such costs or
expenses as they are incurred and in advance of the final disposition of the
action, suit or proceeding within 30 calendar days of submission of bills or
vouchers for such costs or expenses upon receipt of an undertaking by or on
behalf of Indemnitee to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he or she is not entitled to be indemnified
by the Company. Indemnitee agrees to reimburse the Company for all
amounts paid by the Company in defending any civil, criminal, administrative,
investigative action, suit or proceeding against Indemnitee, including amounts
paid in settlement, in the event and only to the extent that it is ultimately
determined by a court of competent jurisdiction that Indemnitee is not entitled
to be indemnified by the Company for such expenses under the provisions of the
State Statute, Bylaws, this Agreement or otherwise. In the case of an
action brought by the Company for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended,
or other similar provisions of any federal, state or local statutory law,
however, costs and expenses will not be advanced unless such action is approved
by a majority of the directors of the Company who both hold office at the time
of the commencement of such case and held office at the time of the conduct
alleged to have given rise to liability on the part of the
Indemnitee.
6. Presumptions
and Effect on Certain Proceedings. Upon making a request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
under this Agreement. The termination of any action, suit or
proceeding by judgment, order, settlement, arbitration award, conviction or on a
plea of nolo contendere or its equivalent shall not affect this presumption
except as may be provided in Section 4 of this Agreement.
7. Notification
and Defense of Claim. Promptly after receipt by Indemnitee of
notice of the commencement of any action, suit or proceeding, Indemnitee shall,
if a claim with respect thereto is to be made against the Company under this
Agreement, notify the Company of the commencement of the same; but the failure
by Indemnitee to notify the Company will not relieve the Company from any
liability which it may have to Indemnitee otherwise than under this
Agreement. With respect to any such action, suit or proceeding as to
which Indemnitee notifies the Company of the commencement thereof:
(a) The
Company shall be entitled to participate therein at its own expense;
and
(b) Except
as otherwise provided below, to the extent that it may wish, the
Company,
jointly with any other indemnifying party similarly notified, shall be entitled
to assume the defense thereof with counsel reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its
election to assume the defense of the action, suit or proceeding, the Company
will not be liable to Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by Indemnitee in connection with the defense
thereof other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right to employ its own counsel in
such action, suit or proceeding but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense shall be
at the sole expense of Indemnitee unless (i) the employment of counsel by
Indemnitee has been authorized in writing by the Company; (ii) Indemnitee shall
have reasonably concluded that there my be a conflict of interest between the
Company and Indemnitee in the conduct of the defense of such action; or (iii)
the Company shall not in fact have employed counsel to assume the defense of
such action, suit or proceeding. In each such instance set forth in
(i)-(iii) above, the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company. Notwithstanding the foregoing, the Company
shall not be entitled to assume the defense of any action, suit or proceeding
brought by or on behalf of the Company or as to which Indemnitee shall have made
the conclusion provided in (ii) above.
(c) The
Company shall not be liable to indemnify Indemnitee under this Agreement for any
amounts paid in settlement of any action or claim affected without the Company’s
prior express written consent. The Company shall not settle any
action or claim in any manner that would impose any penalty or limitation on
Indemnitee without Indemnitee’s prior express written
consent. Neither the Company nor Indemnitee will unreasonably
withhold their consent to any proposed settlement.
8. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on the Company hereby in order to induce
Indemnitee to continue as a director or officer of the Company, and acknowledges
that Indemnitee is relying on this Agreement in continuing in such
capacity.
(b) In
the event Indemnitee is required to bring any action to enforce his or her
rights or to collect moneys due under this Agreement, the Company shall advance
Indemnitee all of Indemnitee’s reasonably fees and expenses in bringing and
pursuing such action. Indemnitee shall be responsible for
reimbursement to the Company of such advances in the event that Indemnitee is
not successful in such action.
9. No
Employment Rights. Nothing in this Agreement is intended to
confer on Indemnitee any right to continue in the employ of the Company for any
period of time or interfere with or otherwise restrict in any way the rights of
the Company or of Indemnitee, which rights are hereby expressly reserved by
each, to terminate his or her service at any time and for any reason, with or
without cause, except as may be provided otherwise in an agreement between the
Company and Indemnitee.
10. Severability. Each
of the provisions of this Agreement are separate and distinct and independent of
one another, so that if any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, such invalidity or unenforceability
shall not effect the validity or enforceability of the other provisions of this
Agreement.
11. Blue
Pencil. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, the parties agree
that the court making such determination shall have the power to amend such
provision or to delete specific words or phrases so that such provision shall
then be enforceable to the fullest extent permitted by law.
12. Subrogation. In
the event of payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all rights of recovery of Indemnitee, who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including without limitation, the execution of such
documents necessary to enable the Company to effectively bring suit to enforce
such rights.
13. Governing
Law and Forum Selection. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Nevada without resort
to conflict of laws principles.
14. Binding
Effect; Amendment. This Agreement shall be binding on the
parties, their successors and assigns, and shall inure to the benefit of
Indemnitee, his or her heirs, personal representatives and assigns, and to the
benefit of the Company, its successors and assigns. No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless in a writing signed by both parties hereto.
15. Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand and
receipted for by the party to whom said notice or other communication shall have
been directed or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed and
addressed to the following addresses:
If to
Indemnitee: _________________________
_________________________
_________________________
If to the
Company:_________________________
_________________________
_________________________
Attention: President
With a copy
to: ________________________
_________________________
_________________________
A party
may change their address by delivering notice of such changed addressed in the
manner set forth in this Section 15.
In Witness Whereof, the parties hereto
have executed this Indemnity Agreement as of the date first above
written.
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“Indemnitee”
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Reading
International, Inc.
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a
Nevada corporation
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_________________________
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By:
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_________________________
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Its:
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_________________________
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