EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT is made and entered into as of the ____ day
of ______________, 1999 (the "Agreement"), by and between XXXXXXXXXXX.XXX, INC.,
---------------------
a Nevada corporation (the "Company"), and _____________________ (the
"Indemnitee"), with reference to the following facts:
A. The Company desires the benefits of having Indemnitee serve as an
officer and/or director secure in the knowledge that any expenses, liability
and/or losses incurred by him in his good faith service to the Company will be
borne by the Company or its successors and assigns;
B. Indemnitee is willing to serve in his position with the Company only on
the condition that he be indemnified for such expenses, liability and/or losses;
C. The Company and Indemnitee recognize the increasing difficulty in
obtaining liability insurance for directors, officers and agents of a
corporation at reasonable cost;
D. The Company and Indemnitee recognize that there has been an increase in
litigation against corporate directors, officers and agents; and
E. The Company's Articles of Incorporation allow and require the Company
to indemnify its directors, officers and agents to the maximum extent permitted
under Nevada law.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement:
-----------
1.1 "Agent" shall mean any person who is or was a director, officer,
employee or agent of the Company or a subsidiary of the Company whether serving
in such capacity or as a director, officer, employee, agent, fiduciary or other
official of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise at the request of, for the convenience of, or
to represent the interests of the Company or a subsidiary of the Company.
1.2 "Change of Control" shall mean the occurrence of any of the following
events after the date of this Agreement:
(a) a change in the composition of the Board of Directors, as a result of
which fewer than one-half of the incumbent directors are directors who either:
(i) had been directors of the Company twenty-four (24) months prior to such
change; or (ii) were elected, or nominated for election, to the Board of
Directors with the affirmative votes of at least a majority of the directors who
had been directors of the Company twenty-four (24) months prior to such change
and who were still in office at the time of the election or nomination;
-1-
(b) any "person" (as such term is used in sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) who by
the acquisition or aggregation of securities is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the combined voting power of the Company's
then-outstanding securities ordinarily (and apart from rights accruing
under special circumstances) having the right to vote at elections of
directors (the "Base Capital Stock"); except that any change in the
relative beneficial ownership of the Company's securities by any person
resulting solely from a reduction in the aggregate number of outstanding
shares of Base Capital Stock, and any decrease thereafter in such person's
ownership of securities, shall be disregarded until such person increases
in any manner, directly or indirectly, such person's beneficial ownership
of any securities of the Company;
(c) the sale of all or substantially all of the assets of the Company to a
person or entity who is not an affiliate (including a parent or subsidiary)
of the Company;
(d) the dissolution of the Company pursuant to action validly taken by the
shareholders of the Company in accordance with applicable state law; or
(e) the occurrence of any other tender offer, merger, consolidation, sale,
reorganization, dissolution or other such event or series of events, which
in the opinion of a majority of the Board of Directors (as reflected in a
written resolution of the Board of Directors) has resulted in a change of
control of the Company.
Notwithstanding the foregoing, a Change of Control shall not be deemed to
occur in the event of (x) sale by the Company of shares of Preferred Stock prior
to an initial public offering of securities by the Company, (y) a change in the
Company's state of incorporation or (z) an initial public offering of securities
by the Company.
1.3 "Disinterested Director" shall mean a director of the Company who is
not and was not a party to the Proceeding in respect of which indemnification is
being sought by Indemnitee.
1.4 "Expenses" shall be broadly construed and shall include, without
limitation, (a) all direct and indirect costs incurred, paid or accrued, (b) all
attorneys' fees, retainers, court costs, transcripts, fees of experts, witness
fees, travel expenses, food and lodging expenses while traveling, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service,
freight or other transportation fees and expenses, (c) all other disbursements
and out-of-pocket expenses, (d) amounts paid in settlement, to the extent not
prohibited by Nevada Law, and (e) reasonable compensation for time spent by
Indemnitee for which he is otherwise not compensated by the Company or any third
party, actually and reasonably incurred in connection with or arising out of a
Proceeding, including a Proceeding by Indemnitee to establish or enforce a right
to indemnification under this Agreement, applicable law or otherwise.
1.5 "Independent Counsel" shall mean a law firm or a member of a law firm
that neither is presently nor in the past five years has been retained to
represent: (a) the Company, an affiliate of the Company or Indemnitee in any
matter material to either party or (b) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term "Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing would have a
conflict of interest in
-2-
representing either the Company or Indemnitee in an action to determine
Indemnitee's right to indemnification under this Agreement.
1.6 "Liabilities" shall mean liabilities of any type whatsoever,
including, but not limited to, judgments or fines, ERISA or other excise taxes
and penalties, and amounts paid in settlement (including all interest,
assessments or other charges paid or payable in connection with any of the
foregoing) actually and reasonably incurred by Indemnitee in connection with a
Proceeding.
1.7 "Nevada Law" means the Nevada General Corporation Law, as amended and
in effect from time to time or any successor or other statutes of Nevada having
similar import and effect.
1.8 "Proceeding" shall mean any pending, threatened or completed action,
hearing, suit or any other proceeding, whether civil, criminal, arbitrative,
administrative, investigative or any alternative dispute resolution mechanism,
including without limitation any such Proceeding brought by or in the right of
the Company.
2. Employment Rights and Duties. Subject to any other obligations imposed
----------------------------
on either of the parties by contract or by law, and with the understanding that
this Agreement is not intended to confer employment rights on either party which
they did not possess on the date of its execution, Indemnitee agrees to serve as
a director or officer so long as he is duly appointed or elected and qualified
in accordance with the applicable provisions of the Amended and Restated
Articles of Incorporation (the "Articles") and Bylaws (the "Bylaws") of the
Company or any subsidiary of the Company and until such time as he resigns or
fails to stand for election or until his employment terminates. Indemnitee may
from time to time also perform other services at the request, or for the
convenience of, or otherwise benefiting the Company. Indemnitee may at any time
and for any reason resign or be removed from such position (subject to any other
contractual obligation or other obligation imposed by operation of law), in
which event the Company shall have no obligation under this Agreement to
continue Indemnitee in any such position.
2.1 Directors' and Officers' Insurance.
---------------------------------------
(a) The Company hereby covenants and agrees that, so long as Indemnitee
shall continue to serve as a director or officer of the Company and thereafter
so long as Indemnitee shall be subject to any possible Proceeding, the Company,
subject to Section 2.1(c), shall maintain directors' and officers' insurance in
full force and effect.
(b) In all policies of directors' and officers' insurance, Indemnitee shall
be named as an insured in such a manner as to provide Indemnitee the same rights
and benefits, subject to the same limitations, as are accorded to the Company's
directors or officers most favorably insured by such policy.
(c) The Company shall have no obligation to maintain directors' and
officers' insurance if the Company determines in good faith that such insurance
is not reasonably available, the premium costs for such insurance are
disproportionate to the amount of coverage
-3-
provided, or the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit.
3. Indemnification. The Company shall indemnify Indemnitee to the fullest
---------------
extent authorized or permitted by Nevada Law and the provisions of the Articles
and Bylaws of the Company in effect on the date hereof, and as Nevada Law, the
Articles and Bylaws may from time to time be amended (but, in the case of any
such amendment, only to the extent such amendment permits the Company to provide
broader indemnification rights than Nevada Law, the Articles and/or Bylaws
permitted the Company to provide before such amendment). The right to
indemnification conferred in the Articles shall be presumed to have been relied
upon by Indemnitee in serving or continuing to serve the Company as a director
or officer and shall be enforceable as a contract right. Without in any way
diminishing the scope of the indemnification provided by the Articles and this
Section 3, the Company shall indemnify Indemnitee if and whenever he is or was a
witness, party or is threatened to be made a witness or a party to any
Proceeding, by reason of the fact that he is or was an Agent or by reason of
anything done or not done, or alleged to have been done or not done, by him in
such capacity, against all Expenses and Liabilities actually and reasonably
incurred by Indemnitee or on his behalf in connection with the investigation,
defense, settlement or appeal of such Proceeding. In addition to, and not as a
limitation of, the foregoing, the rights of indemnification of Indemnitee
provided under this Agreement shall include those rights set forth in Sections
4, 5 and 6 below.
4. Payment of Expenses.
-------------------
4.1 All Expenses incurred by or on behalf of Indemnitee shall be advanced
by the Company to Indemnitee within 20 days after the receipt by the Company of
a written request for such advance which may be made from time to time, whether
prior to or after final disposition of a Proceeding (unless there has been a
final determination by a court of competent jurisdiction that Indemnitee is not
entitled to be indemnified for such Expenses). Indemnitee's entitlement to
advancement of Expenses shall include those incurred in connection with any
Proceeding by Indemnitee seeking a determination, an adjudication or an award in
arbitration pursuant to this Agreement. The requests shall reasonably evidence
the Expenses incurred by Indemnitee in connection therewith. Indemnitee hereby
undertakes to repay the amounts advanced if it shall ultimately be determined
that Indemnitee is not entitled to be indemnified pursuant to the terms of this
Agreement.
4.2 Notwithstanding any other provision in this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee in connection therewith.
5. Procedure for Determination of Entitlement to Indemnification.
-------------------------------------------------------------
5.1 Whenever Indemnitee believes that he is entitled to indemnification
pursuant to this Agreement, Indemnitee shall submit a written request for
indemnification (the "Indemnification Request") to the Company to the attention
of the President with a copy to the Secretary. This request shall include
documentation or information which is necessary for the determination of
entitlement to indemnification and which is reasonably available to Indemnitee.
Determination of Indemnitee's entitlement to indemnification shall be made no
later than 60
-4-
days after receipt of the Indemnification Request. The President or the
Secretary shall, promptly upon receipt of Indemnitee's request for
indemnification, advise the Board in writing that Indemnitee has made such
request for indemnification.
5.2 The Indemnification Request shall set forth Indemnitee's selection of
which of the following forums shall determine whether Indemnitee is entitled to
indemnification:
(i) A majority vote of Directors who are not parties to the action
with respect to which indemnification is sought, even though less than a
quorum.
(ii) A written opinion of an Independent Counsel (provided there are
no such Directors as set forth in (i) above or if such Directors as set
forth in (i) above so direct).
(iii) A majority vote of the shareholders at a meeting at which a
quorum is present, with the shares owned by the person to be indemnified
not being entitled to vote thereon.
(iv) The court in which the Proceeding is or was pending upon
application by Indemnitee.
The Company agrees to bear any and all costs and expenses incurred by
Indemnitee or the Company in connection with the determination of Indemnitee's
entitlement to indemnification by any of the above forums.
6. Presumptions and Effect of Certain Proceedings. No initial finding by
----------------------------------------------
the Board, its counsel, Independent Counsel, arbitrators or the shareholders
shall be effective to deprive Indemnitee of the protection of this indemnity,
nor shall a court or other forum to which Indemnitee may apply for enforcement
of this indemnity give any weight to any such adverse finding in deciding any
issue before it. Upon making a request for indemnification, Indemnitee shall be
presumed to be entitled to indemnification under this Agreement and the Company
shall have the burden of proof to overcome that presumption in reaching any
contrary determination. The termination of any Proceeding by judgment, order,
settlement, arbitration award or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, (a) adversely affect the rights of
Indemnitee to indemnification except as indemnification may be expressly
prohibited under this Agreement, (b) create a presumption that Indemnitee did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company or (c) with respect to any
criminal action or proceeding, create a presumption that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee in Cases of Determination not to Indemnify or to
-----------------------------------------------------------------------
Advance Expenses.
----------------
7.1 In the event that (a) an initial determination is made that Indemnitee
is not entitled to indemnification, (b) advances for Expenses are not made when
and as required by this Agreement, (c) payment has not been timely made
following a determination of entitlement to indemnification pursuant to this
Agreement or (d) Indemnitee otherwise seeks enforcement of this Agreement,
Indemnitee shall be entitled to a final adjudication in an appropriate court of
the State of Nevada of his entitlement to such indemnification or advance.
Alternatively, Indemnitee
-5-
at his option may seek an award in arbitration. If the parties are unable to
agree on an arbitrator, the parties shall provide JAMS Endispute ("JAMS") with a
statement of the nature of the dispute and the desired qualifications of the
arbitrator. JAMS will then provide a list of three available arbitrators. Each
party may strike one of the names on the list, and the remaining person will
serve as the arbitrator. If both parties strike the same person, JAMS will
select the arbitrator from the other two names. The arbitration award shall be
made within 90 days following the demand for arbitration. Except as set forth
herein, the provisions of Nevada law shall apply to any such arbitration. The
Company shall not oppose Indemnitee's right to seek any such adjudication or
arbitration award. In any such proceeding or arbitration Indemnitee shall be
presumed to be entitled to indemnification under this Agreement and the Company
shall have the burden of proof to overcome that presumption.
7.2 An initial determination, in whole or in part, that Indemnitee is not
entitled to indemnification shall create no presumption in any judicial
proceeding or arbitration that Indemnitee has not met the applicable standard of
conduct for, or is otherwise not entitled to, indemnification.
7.3 If an initial determination is made or deemed to have been made
pursuant to the terms of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in the absence
of (a) a misrepresentation of a material fact by Indemnitee in the request for
indemnification or (b) a specific finding (which has become final) by a court of
competent jurisdiction that all or any part of such indemnification is expressly
prohibited by law.
7.4 The Company and Indemnitee agree herein that a monetary remedy for
breach of this Agreement, at some later date, will be inadequate, impracticable
and difficult of proof, and further agree that such breach would cause
Indemnitee irreparable harm. Accordingly, the Company and Indemnitee agree that
Indemnitee shall be entitled to temporary and permanent injunctive relief to
enforce this Agreement without the necessity of proving actual damages or
irreparable harm. The Company and Indemnitee further agree that Indemnitee shall
be entitled to such injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the necessity of
posting bond or other undertaking in connection therewith. Any such requirement
of bond or undertaking is hereby waived by the Company, and the Company
acknowledges that in the absence of such a waiver, a bond or undertaking may be
required by the court.
7.5 The Company shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Company shall stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this Agreement and is precluded from
making any assertion to the contrary.
7.6 Expenses incurred by Indemnitee in connection with his request for
indemnification under, seeking enforcement of or to recover damages for breach
of this Agreement shall be borne and advanced by the Company.
8. Other Rights to Indemnification. Indemnitee's rights of
-------------------------------
indemnification and advancement of expenses provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may now or in the
future be entitled under applicable law, the
-6-
Articles, the Bylaws, an employment agreement, a vote of shareholders or
Disinterested Directors, insurance or other financial arrangements or otherwise.
9. Limitations on Indemnification. No indemnification pursuant to Section
------------------------------
3 shall be paid by the Company nor shall Expenses be advanced pursuant to
Section 3:
9.1 Insurance. To the extent that Indemnitee is reimbursed pursuant to
---------
such insurance as may exist for Indemnitee's benefit. Notwithstanding the
availability of such insurance, Indemnitee also may claim indemnification from
the Company pursuant to this Agreement by assigning to the Company any claims
under such insurance to the extent Indemnitee is paid by the Company. Indemnitee
shall reimburse the Company for any sums he receives as indemnification from
other sources to the extent of any amount paid to him for that purpose by the
Company;
9.2 Section 16(b). On account and to the extent of any wholly or
-------------
partially successful claim 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) or the Securities Exchange Act of 1934, as
amended, and amendments thereto or similar provisions of any federal, state or
local statutory law; or
9.3 Indemnitee's Proceedings. Except as otherwise provided in this
------------------------
Agreement, in connection with all or any part of a Proceeding which is initiated
or maintained by or on behalf of Indemnitee, or any Proceeding by Indemnitee
against the Company or its directors, officers, employees or other agents,
unless (a) such indemnification is expressly required to be made by Nevada Law,
(b) the Proceeding was authorized by a majority of the Disinterested Directors,
(c) there has been a Change of Control or (d) such indemnification is provided
by the Company, in its sole discretion, pursuant to the powers vested in the
Company under Nevada Law.
10. Duration and Scope of Agreement; Binding Effect. This Agreement shall
-----------------------------------------------
continue so long as Indemnitee shall be subject to any possible Proceeding
subject to indemnification by reason of the fact that he is or was an Agent and
shall be applicable to Proceedings commenced or continued after execution of
this Agreement, whether arising from acts or omissions occurring before or after
such execution. This Agreement shall be binding upon the Company and its
successors and assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Company) and shall inure to the benefit of Indemnitee and his
spouse, assigns, heirs, devisees, executors, administrators and other legal
representatives.
11. Notice by Indemnitee and Defense of Claims. Indemnitee agrees
------------------------------------------
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter which may be subject to indemnification hereunder,
whether civil, criminal, arbitrative, administrative or investigative; but the
omission so to notify the Company will not relieve it from any liability which
it may have to Indemnitee if such omission does not actually prejudice the
Company's rights and, if such omission does prejudice the Company's rights, it
will relieve the Company from liability only to the extent of such prejudice;
nor will such omission relieve the Company from any liability which it may have
to Indemnitee otherwise than under this Agreement. With respect to any
Proceeding:
-7-
(a) The Company will be entitled to participate therein at its own
expense;
(b) Except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election so to
assume the defense thereof and the assumption of such defense, the Company will
not be liable to Indemnitee under this Agreement for any attorney fees or costs
subsequently incurred by Indemnitee in connection with Indemnitee's defense
except as otherwise provided below. Indemnitee shall have the right to employ
his counsel in such Proceeding but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
and the assumption of such defense shall be at the expense of Indemnitee unless
(i) the employment of counsel by Indemnitee has been authorized by the Company,
(ii) Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of the defense of
such action or that the Company's counsel may not be adequately representing
Indemnitee or (iii) the Company shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel shall be at the expense of the Company; and
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim
which would impose any limitation or penalty on Indemnitee without Indemnitee's
written consent. Neither the Company nor Indemnitee will unreasonably withhold
its or his consent to any proposed settlement.
12. Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnification provided for in this Agreement is
held by a court of competent jurisdiction to be unavailable to Indemnitee in
whole or part, the Company shall, in such an event, after taking into account,
among other things, contributions by other directors and officers of the Company
pursuant to indemnification agreements or otherwise, and, in the absence of
personal enrichment, acts of intentional fraud or dishonesty or criminal conduct
on the part of Indemnitee, contribute to the payment of Indemnitee's losses to
the extent that, after other contributions are taken into account, such losses
exceed: (i) in the case of a director of the Company or any of its subsidiaries
who is not an officer of the Company or any of such subsidiaries, the amount of
fees paid to the director for serving as a director during the 12 months
preceding the commencement of the Proceeding; or (ii) in the case of a director
of the Company or any of its subsidiaries who is also an officer of the Company
or any of such subsidiaries, the amount set forth in clause (i) plus 5% of the
aggregate cash compensation paid to said director for service in such office(s)
during the 12 months preceding the commencement of the Proceeding; or (iii) in
the case of an officer of the Company or any of its subsidiaries, 5% of the
aggregate cash compensation paid to such officer for service in such office(s)
during the 12 months preceding the commencement of such Proceeding.
13. Establishment of Trust. In order to secure the obligations of the
Company to indemnify and to advance Expenses to Indemnitee pursuant to this
Agreement, upon a Change of Control of the Company, the Company or its successor
or assign shall establish a Trust (the "Trust") for the benefit of the
Indemnitee, the trustee (the "Trustee") of which shall be chosen by the Company
and which is reasonably acceptable to the Indemnitee. Thereafter, from time to
-8-
time, upon receipt of a written request from Indemnitee, the Company shall fund
the Trust in amounts sufficient to satisfy any and all Liabilities and Expenses
reasonably anticipated at the time of such request for which the Company may
indemnify Indemnitee hereunder. The amount or amounts to be deposited in the
Trust pursuant to the foregoing funding obligation shall be determined by mutual
agreement of the Indemnitee and the Company or, if the Company and the
Indemnitee are unable to reach such an agreement, by Independent Counsel
selected jointly by the Company and the Indemnitee. The terms of the Trust shall
provide that except upon the consent of the Indemnitee and the Company, (i) the
Trust shall not be revoked or the principal thereof invaded, without the written
consent of the Indemnitee, (ii) the Trustee shall advance to the Indemnitee,
within 20 days of a request by the Indemnitee, any and all Expenses, the
Indemnitee hereby agreeing to reimburse the Trustee of the Trust for all
Expenses so advanced if a final determination is made by a court in a final
adjudication from which there is no further right of appeal that the Indemnitee
is not entitled to be indemnified under this Agreement, (iii) the Trust shall
continue to be funded by the Company in accordance with the funding obligations
set forth in this Section, (iv) the Trustee shall promptly pay to the Indemnitee
any amounts to which the Indemnitee shall be entitled pursuant to this
Agreement, and (v) all unexpended funds in the Trust shall revert to the Company
upon a final determination by Independent Counsel selected by Indemnitee or a
court of competent jurisdiction that Indemnitee has been fully indemnified with
respect to the Proceeding giving rise to the funding of the Trust under the
terms of this Agreement. The establishment of the Trust shall not, in any way,
diminish the Company's obligation to indemnify Indemnitee against Expenses and
Liabilities to the full extent required by this Agreement.
14. Miscellaneous Provisions.
------------------------
14.1 Severability; Partial Indemnity. If any provision or provisions of
-------------------------------
this Agreement (or any portion thereof) shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable for any reason whatever:
(a) such provision shall be limited or modified in its application to the
minimum extent necessary to avoid the invalidity, illegality or unenforceability
of such provision; (b) the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby; and (c) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision (or portion thereof) held invalid, illegal or unenforceable. If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any Expenses or Liabilities of any type
whatsoever incurred by him in the investigation, defense, settlement or appeal
of a Proceeding but not entitled to all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for such total amount except as to the
portion thereof for which it has been determined pursuant to Section 5 hereof
that Indemnitee is not entitled.
14.2 Identical Counterparts. This Agreement may be executed in one or
----------------------
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
-9-
14.3 Interpretation of Agreement. It is understood that the parties
---------------------------
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent not now or hereafter
prohibited by law.
14.4 Headings. The headings of the Sections and paragraphs of this
--------
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
14.5 Pronouns. Use of the masculine pronoun shall be deemed to include
--------
use of the feminine pronoun where appropriate.
14.6 Modification and Waiver. No supplement, modification or amendment of
-----------------------
this Agreement shall be binding unless executed in writing by both of the
parties to this Agreement. No waiver of any provision of this Agreement shall be
deemed to constitute a waiver of any of the provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver. No waiver of any
provision of this Agreement shall be effective unless executed in writing.
14.7 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 (ii) mailed by certified or registered
mail with postage prepaid, on the third business day after the date on which it
is so mailed, or (iii) sent by facsimile transmission and receipt thereof is
electronically confirmed:
(a) If to Indemnitee, to: ______________________________
______________________________
______________________________
Telephone: (___)
Facsimile: (___)
(b) If to the Company, to: XxxxxxxxXxx.xxx, Inc.
0000 X. Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Secretary
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
14.8 Governing Law. The parties agree that this Agreement shall be
-------------
governed by, and 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 Nevada.
14.9 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
-10-
any action or proceeding which arises out of or relates to this agreement and
agree that any action instituted under this agreement shall be brought only in
the state courts of the State of Nevada.
14.10 Entire Agreement. This Agreement represents the entire agreement
----------------
between the parties hereto, and there are no other agreements, contracts or
understanding between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Sections 8 and 2.1 hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXXXXXXXXXX.XXX, INC.
By_________________________________
Name_______________________________
Title______________________________
INDEMNITEE
___________________________________
-11-
