Exhibit 10.18
The following people will execute Indemnity Agreements in substantially the same
form as the Form of Indemnity Agreement filed herewith:
1. Xxx Xxxxxxx;
2. Xxxxx Xxxxxxxxx;
3. Xxxx Xxxxxxxx;
4. Xxxxxx Xxxxxxx;
5. Xxxx X. Xxxxxxx; and
6. Xxxxx Xxxxxxxxxx.
FORM OF INDEMNITY AGREEMENT
This Agreement made and entered into as of this 1st day of May, 2005 by and
between Execute Sports, Inc., a Nevada corporation (the "Company"), and
__________________ ("Indemnitee"), who is currently serving the Company in the
capacity of a director and/or officer thereof;
W I T N E S S E T H:
WHEREAS, the Company and Indemnitee recognize that the interpretation of
ambiguous statutes, regulations and court opinions and of the Certificate of
Incorporation and Bylaws of the Company, and the vagaries of public policy, are
too uncertain to provide the directors and officers of the Company with adequate
or reliable advance knowledge or guidance with respect to the legal risks and
potential liabilities to which they become personally exposed as a result of
performing their duties in good faith for the Company; and
WHEREAS, the Company and the Indemnitee are aware that highly experienced
and capable persons are often reluctant to serve as directors or officers of a
corporation unless they are protected to the fullest extent permitted by law by
comprehensive insurance or indemnification, especially since the legal risks and
potential liabilities, and the very threat thereof, associated with lawsuits
filed against the officers and directors of a corporation, and the resultant
substantial time, expense, harassment, ridicule, abuse and anxiety spent and
endured in defending against such lawsuits, whether or not meritorious, bear no
reasonable or logical relationship to the amount of compensation received by the
directors or officers from the corporation; and
WHEREAS, Section NRS 78.138 of the General Corporation Law of the State of
Nevada, which sets forth certain provisions relating to the mandatory and
permissive indemnification of, and advancement of expenses to, officers and
directors (among others) of a Delaware corporation by such corporation, is
specifically not exclusive of other rights to which those indemnified thereunder
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, and, thus, does not by itself limit the
extent to which the Company may indemnify persons serving as its officers and
directors (among others); and
WHEREAS, after due consideration and investigation of the terms and
provisions of this Agreement and the various other options available to the
Company and the Indemnitee in lieu thereof, the board of directors of the
Company has determined that the following Agreement is not only reasonable and
prudent but necessary to promote and ensure the best interests of the Company
and its stockholders; and
WHEREAS, the Company desires to have Indemnitee serve or continue to serve
as an officer and/or director of the Company, free from undue concern for
unpredictable, inappropriate or unreasonable legal risks and personal
liabilities by reason of his acting in good faith in the performance of his duty
to the Company; and Indemnitee desires to serve, or to continue to serve
(provided that he is furnished the indemnity provided for hereinafter), in
either or both of such capacities;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Indemnitee,
intending to be legally bound, do hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as
director and/or officer of the Company, at the will of the Company or under
separate contract, if such exists, for so long as he is duly elected or
appointed and qualified in accordance with the provisions of the Bylaws of the
Company or until such time as he tenders his resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall mean any action, suit or proceeding
whether civil, criminal, administrative, arbitrative or investigative, any
appeal in such an action, suit or proceeding, and any inquiry or investigation
that could lead to such an action, suit or proceeding, except one initiated by
Indemnitee to enforce his rights under this Agreement.
(b) The term "Expenses" includes, without limitation, all reasonable
attorneys' fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or being or
preparing to be a witness in a Proceeding.
(c) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any (i) excise taxes assessed with
respect to any employee benefit plan and (ii) penalties; references to "serving
at the request of the Company" shall include any service as a director, officer,
employee or agent of the Company which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acts in good
faith and in a manner he reasonably believes to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Company" as
referred to in this Agreement.
3. Indemnity in Third Party Proceedings. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is
a party to or is threatened to be made a party to or otherwise involved in any
threatened, pending or completed Proceeding (other than a Proceeding by or in
the right of the Company to procure a judgment in its favor) by reason of the
fact that Indemnitee is or was a director and/or officer 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, against all Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with
such
Proceeding, provided it is determined pursuant to Section 7 of this Agreement or
by the court having jurisdiction in the matter, that Indemnitee acted in good
faith and in a manner that he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal Proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner that he reasonably believed
to be in or not opposed to the best interests of the Company, and, with respect
to any criminal Proceeding, had reasonable cause to believe that his conduct was
unlawful.
4. Indemnity in Proceedings By or In the Right of the Company. The Company
shall indemnify Indemnitee in accordance with the provisions of this Section 4
if Indemnitee is a party to or is threatened to be made a party to or otherwise
involved in any threatened, pending or completed Proceeding by or in the right
of the Company to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director and/or officer 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,
against all Expenses actually and reasonably incurred by Indemnitee in
connection with the defense, settlement or other disposition of such Proceeding,
but only if he acted in good faith and in a manner that he reasonably believed
to be in or not opposed to the best interests of the Company, except that no
indemnification shall be made under this Section 4 in respect of any claim,
issue or matter as to which Indemnitee shall have been adjudged to be liable to
the Company unless and only to the extent that the court in which such
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as
the court shall deem proper.
5. Indemnification for Expenses of Successful Party. Notwithstanding any
other provision of this Agreement to the contrary, to the extent that Indemnitee
has been successful on the merits or otherwise in defense of any Proceeding
referred to in Sections 3 and/or 4 of this Agreement, or in defense of any
claim, issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by Indemnitee in connection therewith.
6. Advances of Expenses. The Expenses incurred by Indemnitee pursuant to
Sections 3 and/or 4 of this Agreement in connection with any Proceeding shall,
at the written request of the Indemnitee, be paid by the Company in advance of
the final disposition of such Proceeding upon receipt by the Company of an
undertaking by or on behalf of Indemnitee ("Indemnitee's Undertaking") to repay
such amount to the extent that it is ultimately determined that Indemnitee is
not entitled to be indemnified by the Company. The request for advancement of
Expenses by Indemnitee and the undertaking to repay of Indemnitee, which need
not be secured, shall be substantially in the form of Exhibit A to this
Agreement.
7. Right of Indemnitee to Indemnification or Advancement of Expenses Upon
Application; Procedure Upon Application.
(a) If required by the terms of this Agreement, indemnification under
Sections 3 and/or 4 of this Agreement shall be made no later than 45 days after
receipt by the Company of the written request of Indemnitee. A determination
shall be made within said 45-day period by (i) a majority vote of the directors
of the Company who are not parties to the involved Proceeding, even though less
than a quorum, or (ii) independent legal counsel in a written opinion (which
counsel shall be appointed if there are no such directors or if such directors
so direct), as to whether the Indemnitee has met the applicable standards for
indemnification set forth in Section 3 or 4, as the case may be.
(b) Any advancement of Expenses under Section 6 of this Agreement shall
be made no later than 10 days after receipt by the Company of Indemnitee's
Undertaking.
(c) In any action to establish or enforce the right of indemnification
or to receive advancement of Expenses as provided in this Agreement, the burden
of proving that indemnification or advancement of Expenses is not appropriate
shall be on the Company. Neither the failure of the Company (including its board
of directors or independent legal counsel) to have made a determination prior to
the commencement of such action that indemnification or advancement of Expenses
is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including its
board of directors or independent legal counsel) that Indemnitee has 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.
The Company shall also indemnify Indemnitee against all Expenses incurred by
Indemnitee in connection with successfully establishing or enforcing his right
of indemnification or to receive advancement of Expenses, in whole or in part,
under this Agreement.
8. Indemnification and Advancement of Expenses Under this Agreement Not
Exclusive. The rights of indemnification and to receive advancement of Expenses
as provided by this Agreement shall not be deemed exclusive of any other rights
to which Indemnitee may be entitled under the Certificate of Incorporation or
Bylaws of the Company, any other agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of the State of Nevada, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
9. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification or to receive advancement by the Company
for a portion of the Expenses, judgments, fines or amounts paid in settlement
actually and reasonably incurred by Indemnitee in the investigation, defense,
appeal, settlement or other disposition of any Proceeding but not, however, for
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
10. Rights Continued. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall continue as to
Indemnitee even though Indemnitee may have ceased to be a director or officer of
the Company and shall inure to the benefit of Indemnitee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. No Construction as an Employment Agreement or Any Other Commitment.
Nothing contained in this Agreement shall be construed as giving Indemnitee any
right to be retained in the employ of the Company or any of its subsidiaries, if
Indemnitee currently serves as an officer of the Company, or to be renominated
as a director of the Company, if Indemnitee currently serves as a director of
the Company.
12. Liability Insurance. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms, to the maximum extent of the coverage available for any director or
officer of the Company under such policy or policies.
13. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable under this
Agreement if, and to the extent that, Indemnitee has otherwise actually received
such payment under any contract, agreement or insurance policy, the Certificate
of Incorporation or Bylaws of the Company, or otherwise.
14. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all the 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 as may be necessary to enable the Company
effectively to bring suit to enforce such rights.
15. Exceptions. Notwithstanding any other provision in this Agreement, the
Company shall not be obligated pursuant to the terms of this Agreement, to
indemnify or advance Expenses to Indemnitee with respect to any Proceeding, or
any claim therein, (i) brought or made by Indemnitee against the Company, or
(ii) in which final judgment is rendered against Indemnitee for an accounting of
profits made from the purchase and sale or the sale and purchase 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 similar provisions of any
federal, state or local statute.
16. Notices. Any notice or other communication required or permitted to be
given or made to the Company or Indemnitee pursuant to this Agreement shall be
given or made in writing by depositing the same in the United States mail, with
postage thereon prepaid, addressed to the person to whom such notice or
communication is directed at the address of such person on the records of the
Company, and such notice or communication shall be deemed given or made at the
time when the same shall be so deposited in the United States mail. Any such
notice or communication to the Company shall be addressed to the Secretary of
the Company.
17. Contractual Rights. The right to be indemnified or to receive
advancement of Expenses under this Agreement (i) is a contract right based upon
good and valuable consideration, pursuant to which Indemnitee may xxx, (ii) is
and is intended to be retroactive and shall be available as to events occurring
prior to the date of this Agreement and (iii) shall continue after any
rescission or restrictive modification of this Agreement as to events occurring
prior thereto.
18. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Agreement shall be construed so as to give effect to the
intent manifested by the provisions held invalid, illegal or unenforceable.
19. Successors; Binding Agreement. The Company shall require any successor
to all or substantially all of the business and/or assets of the Company
(whether direct or indirect, by purchase, merger, consolidation or otherwise),
by agreement in form and substance reasonably satisfactory to Indemnitee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor to its business and/or assets
as aforesaid that executes and delivers the agreement provided for in this
Section 19 or that otherwise becomes bound by the terms and provisions of this
Agreement by operation of law.
20. Counterparts, Modification, Headings, Gender.
(a) This Agreement may be executed in counterparts, each of which
shall constitute one and the same instrument, and either party hereto may
execute this Agreement by signing any such counterpart.
(b) No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by Indemnitee and an appropriate officer of the Company. No waiver by
any party at any time of any breach by any other party of, or compliance with,
any condition or provision of this Agreement to be performed by any other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same time or at any prior or subsequent time.
(c) Section headings are not to be considered part of this Agreement,
are solely for convenience of reference, and shall not affect the meaning or
interpretation of this Agreement or any provision set forth herein.
(d) Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires.
21. Assignability. This Agreement shall not be assignable by either party
without the consent of the other.
22. Exclusive Jurisdiction; Governing Law. The Company and Indemnitee
agree that all disputes in any way relating to or arising under this Agreement,
including, without limitation, any action for advancement of Expenses or
indemnification, shall be litigated, if at all, exclusively in the State of
California and, if necessary, the corresponding appellate courts. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of California applicable to contracts made and to be performed in such
state without giving effect to the principles of conflicts of laws. The Company
and Indemnitee expressly submit themselves to the personal jurisdiction of the
State of California.
23. Termination.
(a) This Agreement shall terminate upon the mutual agreement of the
parties that this Agreement shall terminate or upon the death of Indemnitee or
the resignation, retirement, removal or replacement of Indemnitee from all of
his positions as a director and/or officer of the Company.
(b) The termination of this Agreement shall not terminate:
(i) the Company's liability for claims or actions against
Indemnitee arising out of or related to acts, omissions, occurrences, facts or
circumstances occurring or alleged to have occurred prior to such termination;
or
(ii) the applicability of the terms and conditions of this
Agreement to such claims or actions.
IN WITNESS WHEREOF, the Company and Indemnitee have executed this Agreement
as of the date and year first above written.
EXECUTE SPORTS, INC.
By:
--------------------------------------
Name:
--------------------------------
Title:
--------------------------------
INDEMNITEE
------------------------------------------
Name:
------------------------------------
