INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into on the 19th day of March, 1998, by and between Hard Rock Hotel, Inc, a
Nevada corporation (the "Corporation") and ______________ (the "Indemnitee").
PRELIMINARY STATEMENTS
A. It is in the Corporation's best interest to attract and retain capable
directors.
B. It is the policy of the Corporation to indemnify the members of its
Board of Directors (the "Board") so as to provide them with the maximum
possible protection available in accordance with applicable law.
C. Article VII of the Corporation's Second Amended and Restated Bylaws
expressly recognizes that the right of indemnification provided therein shall
not be exclusive of any other rights to which any indemnified person may
otherwise be entitled.
D. The Corporation's Second Amended and Restated Bylaws, its Second
Amended and Restated Articles of Incorporation and applicable law permit
contracts between the Corporation and the members of its Board of Directors
covering indemnification.
AGREEMENT
Intending to be legally bound, the Corporation and the Indemnitee hereby
covenant and agree as follows:
1. INDEMNIFICATION. In consideration for the Indemnitee's continuing
service on behalf of the Corporation and as the Indemnitee's contract right,
the Corporation agrees to indemnify the Indemnitee to the fullest extent
permitted by Chapter 78 of the Nevada Revised Statutes, as amended ("Nevada
"Law") and the Articles of Incorporation and Bylaws of the Corporation, as
they are in effect on the date hereof or as they may from time to time be
amended (but, in the case of amendment, only to the extent any amendment
permits the Corporation to provide broader indemnification rights than the
Corporation was permitted to provide before the amendment). Notwithstanding
the generality of the foregoing, the Corporation agrees to pay to the
Indemnitee any Expenses (as defined below) which the indemnitee actually or
reasonably incurs as a party to or witness in any Proceeding (as defined
below) by reason of the fact that the Indemnitee is or was a director or
officer of the Corporation or serves or served at the request of the
Corporation as a director of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of anything done or not done by the
indemnitee in that capacity.
"Expenses" shall be broadly construed and shall include, without
limitation, (a) all direct and indirect costs incurred, paid or accrued, of
investigation, defense and appeal of any Proceeding, (b) all attorneys' fees,
retainers, court costs, deposition costs, transcripts, fees of experts,
witness fees, accounting fees, travel expenses, duplicating and printing
costs, telephone
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and delivery charges, costs of attachment or similar bonds, (c) all other
disbursements and out-of-pocket expenses and (d) amounts paid in settlement
or for fines or judgments, to the extent permitted by Nevada Law, actually
and reasonably incurred in connection with either the appearance at or
investigation, defense, settlement or appeal of a Proceeding or establishing
or enforcing a right to indemnification under this Agreement or applicable
law or otherwise.
"Proceeding" means any pending, threatened or completed action,
hearing, suit or any other proceeding, whether civil, criminal, arbitrative,
administrative or investigative, or any alternative dispute resolution
mechanism, including, without limitation, any such Proceeding brought by or
in the right of the Corporation (subject to Section 7(c) of this Agreement)
or any Proceeding brought to enforce the Indemnitee's rights under this
Agreement.
2. ADVANCEMENT OF EXPENSES. The Corporation shall advance to the
Indemnitee all Expenses incurred by or on behalf of the Indemnitee within
twenty (20) days after the receipt by the Corporation of a written request
for such advance that reasonably describes the Expenses (unless there has
been a final determination by a court of competent jurisdiction that the
Indemnitee is not entitled to be indemnified for such Expenses). The
Indemnitee hereby agrees to repay the amounts advanced, paid or incurred by
the Corporation on behalf of the Indemnitee in respect of a claim against the
Corporation under this Agreement in the event and only to the extent that it
shall be ultimately determined that the Indemnitee is not entitled to be
indemnified by the Corporation for such expenses under provisions of Nevada
Law, the Corporation's Second Amended and Restated Articles of Incorporation,
the Corporation's Second Amended and Restated Bylaws, this Agreement or
otherwise.
3. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Indemnitee of notice of the commencement of any Proceeding, the Indemnitee
shall, if a claim in respect thereof is to be made against the Corporation
under this Agreement, notify the Corporation of the commencement thereof; but
an omission to so notify the Corporation will not relieve the Corporation
from any liability which it may have to the Indemnitee otherwise than under
this Agreement, including, without limitation, its liability under the
Corporation's Second Amended and Restated Articles of Incorporation and
Second Amended and Restated Bylaws. Further, failure by the Indemnitee to
provide the Corporation with prompt notification of a Proceeding shall not
relieve the Corporation from any liability pertaining to that Proceeding
under this Agreement unless the Corporation has been adversely affected by
the delay.
4. PROCEDURES FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) The Corporation shall determine whether the Indemnitee is
entitled to indemnification within ninety (90) days after receipt of notice
of a request for indemnification in a forum selected by the Corporation from
the following alternatives:
(i) the shareholders of the Corporation;
(ii) a quorum of the Board consisting of directors who are not
parties to the Proceeding;
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(iii) the written opinion of independent counsel which has not
represented the Corporation or the Indemnitee in the past
or any party to the Proceeding, as selected by the
Indemnitee and reasonably approved by the Board; or
(iv) a panel of three (3) arbitrators, one (1) of whom is
selected by the Corporation, another of whom is selected
by the Indemnitee and the last of whom is selected by the
first two (2) arbitrators.
(b) It shall be presumed that the Indemnitee is entitled to
indemnification and the Corporation has the burden of proof to overcome that
presumption by a preponderance of evidence.
(c) If the Corporation fails to notify the Indemnitee of the
determination within ninety (90) days after the Indemnification Request, the
Indemnitee shall be absolutely entitled to indemnification, except as
provided in Section 7 of this Agreement.
(d) The termination of any Proceeding by judgment, order,
settlement or arbitration, or upon a plea of nolo contendere or its
equivalent, shall not of itself adversely affect the rights of the Indemnitee
to indemnification, create a presumption that the 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 Corporation or, with respect to any
criminal action or proceeding, create a presumption that the Indemnitee had
reasonable cause to believe that the Indemnitee's conduct was unlawful.
5. DEFENSE OF PROCEEDINGS
With respect to any Proceeding as to which the Indemnitee has
notified the Corporation and the Corporation has determined that the
Indemnitee is entitled to indemnification:
(a) the Corporation shall be entitled to participate therein at its
own expense; and
(b) the Corporation, jointly with any other indemnifying party
similarly notified, shall be entitled to assume the defense thereof with
counsel reasonably satisfactory to the Indemnitee; PROVIDED HOWEVER, that the
Corporation shall not be entitled to assume the defense of any Proceeding if
the Indemnitee reasonably concludes that there may be a conflict of interest
between the Corporation and the Indemnitee with respect to such Proceeding.
After notice from the Corporation to the Indemnitee of its election to assume
the defense thereof, the Corporation will not be liable to the Indemnitee
under this Agreement for any Expenses subsequently incurred by the Indemnitee
in connection with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. The Indemnitee shall have the
right to employ its own counsel in such Proceeding but the fees and expenses
of such counsel incurred after notice from the Corporation of its assumption
of the defense thereof shall be at the expense of the Indemnitee unless:
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(i) the Corporation has authorized the employment of counsel
by the Indemnitee;
(ii) the Indemnitee shall have reasonably concluded that
counsel engaged by the Corporation may not adequately
represent the Indemnitee; or
(iii) the Corporation shall not in fact have employed counsel
to assume the defense in such Proceeding or shall not in
fact have assumed such defense and be acting in
connection therewith with reasonable diligence.
The Corporation shall have the right, in its sole discretion, to
settle any Proceeding; PROVIDED, HOWEVER that no settlement may be made
without the Indemnitee's prior consent if it will adversely affect the
Indemnitee. The Indemnitee agrees to give the Corporation such information
and cooperation as it may reasonably require to defend or settle any
Proceeding.
6. REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO INDEMNIFY
OR TO ADVANCE EXPENSES.
(a) In the event that (i) an initial determination is made that the
Indemnitee is not entitled to indemnification, (ii) advances for Expenses are
not made when and as required by this Agreement, (iii) payment has not been
timely made following a determination of entitlement to indemnification
pursuant to this Agreement, or (iv) the Indemnitee otherwise seeks
enforcement of this Agreement, the Indemnitee shall be entitled to a final
adjudication in an appropriate court. Alternatively, the Indemnitee, at his
option, may seek arbitration pursuant to the commercial arbitration rules of
the American Arbitration Association then in effect, which arbitration shall
be completed within ninety (90) days following the filing of the demand for
arbitration. In any proceeding or arbitration, the Indemnitee shall be
presumed to be entitled to indemnification and the Corporation shall have the
burden of proof to overcome that presumption by a preponderance of evidence.
The Corporation agrees to stipulate in court or arbitration that the
Corporation is bound by all the provisions of this Agreement.
(b) If an initial determination is made or deemed to have been made
pursuant to the terms of this Agreement that the Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in the
absence of a misrepresentation of a material fact by the Indemnitee in the
request for indemnification or a specific finding in a final judgment by a
court of competent jurisdiction that all or any part of such indemnification
is expressly prohibited by law.
(c) In the event an initial determination has been made, in whole or
in part, that the Indemnitee is not entitled to indemnification, the decision
in the judicial proceeding or arbitration shall be made de novo and the
Indemnitee shall not be prejudiced by reason of any prior determination that
he is not entitled to indemnification.
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7. LIMITATIONS ON INDEMNIFICATION. No indemnification shall be paid nor
shall Expenses be advanced:
(a) to the extent that the Indemnitee has been reimbursed by
insurance coverage. Notwithstanding the availability of insurance, the
Indemnitee may claim indemnification from the Corporation pursuant to this
Agreement by assigning to the Corporation his rights to insurance;
(b) to the extent of any wholly or partially successful claim
against the Indemnitee pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or similar provisions of any
federal, state or local law:
(c) in connection with all or any part of a Proceeding which is
initiated or maintained by or on behalf of the Indemnitee, or any Proceeding
by the Indemnitee against the Corporation or its directors, officers,
employees or other agents, unless (i) such indemnification is expressly
required to be made by Nevada Law or this Agreement, (ii) the Proceeding was
authorized by the Board of Directors of the Corporation or (iii) such
indemnification is provided by the Corporation, in its sole discretion,
pursuant to the powers vested in the Corporation under Nevada Law;
(d) in respect of remuneration paid to, or indemnification of, the
Indemnitee, if it shall be determined by a final judgment or other final
adjudication that such remuneration or indemnification was or is prohibited by
applicable law;
(e) for any transaction from which the Indemnitee derived an
improper personal benefit;
(f) for any breach of the Indemnitee's duty to act in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation; or
(g) in respect of acts or omissions which involve intentional
misconduct or a knowing violation of law by the Indemnitee.
8. DURATION AND SCOPE OF AGREEMENT; BINDING EFFECT. This Agreement
shall continue so long as the Indemnitee is subject to any possible
Proceeding for acts or omissions occurring before or after execution of this
Agreement by reason of the fact that the Indemnitee is or was a director or
officer of the Corporation or serves or served at the request of the
Corporation as a director of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of anything done or not done by the
Indemnitee in that capacity. This Agreement is binding upon the Corporation
and its successors and assigns and is for the benefit of the Indemnitee and
his assigns, heirs, devisees, executors, administrators and other legal
representatives.
9. SEVERABILITY. If any provision, covenant or condition of this
Agreement is held or found to be invalid, illegal or unenforceable for any
reason whatsoever, that provision, covenant or condition shall be deemed
severable and the provisions, covenants and conditions not held or
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found to be invalid, void or unenforceable shall continue in full force and
effect and shall in no way be affected, impaired or invalidated thereby. To
the fullest extent possible, the provisions of this Agreement shall be
construed to give effect to the intent of the provision held invalid, illegal
or unenforceable.
10. PARTIAL INDEMNITY. If the Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for only a portion of
any Expenses, the Corporation shall indemnify the Indemnitee for the portion
to which the Indemnitee is entitled.
11. MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the Corporation
and the Indemnitee. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor will such waiver constitute a continuing waiver.
12. 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 to the addressee, (ii) received by facsimile
transmission if such transmission is thereafter confirmed or acknowledged in
writing or (iii) mailed by certified or registered mail with postage prepaid,
on the third business day after the date on which it is so mailed:
If to the Indemnitee:
If to the Corporation: Hard Rock Hotel, Inc.
000 X. Xxxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
with a copy to: Xxxxxx & Silver, Ltd.
0000 Xxxxxx Xxxxxx Xxxxxxx
00xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxx
or to such other address as may have been furnished by the parties.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Nevada applicable to contracts made in that state.
14. SUBROGATION. In the event of any payment under this Agreement, the
Corporation will be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, who agrees to execute all papers
required and do everything that may be necessary
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to secure such rights, including the execution of such documents necessary to
enable the Corporation effectively to bring suit to enforce such rights.
15. COUNTERPARTS. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
16. PRIOR AGREEMENTS. This Agreement supersedes any prior
indemnification agreement between the Indemnitee and the Corporation, which
shall be of no further force and effect whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CORPORATION:
HARD ROCK HOTEL, INC.,
a Nevada corporation
By:
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Xxxx Xxxxxxxx, Senior Vice
President of Operations
INDEMNITEE:
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