INDEMNIFICATION AGREEMENT
This
AGREEMENT is made and entered into as of August 19, 2009, between THE XXXXXXX CORPORATION, a
corporation organized under the laws of the State of Nevada (the "Corporation"), and
_____________________
("Indemnitee").
WHEREAS, it is essential to
the Corporation to retain and attract as officers and directors of the
Corporation the most capable persons available; and
WHEREAS, the Corporation has
requested that Indemnitee become or remain an officer and/or director of the
Corporation; and
WHEREAS, both the Corporation
and Indemnitee recognize the increased risk of litigation and other claims being
asserted against officers and directors of companies in today's environment;
and
WHEREAS, the Corporation's
By-Laws provide that the Corporation will indemnify its officers and directors
to the fullest extent permitted by law and will advance expenses in connection
therewith, and Indemnitee's willingness to serve as an officer and/or director
of the Corporation is based in part on Indemnitee's reliance on such provisions;
and
WHEREAS, in recognition of
Indemnitee's need for substantial protection against personal liability in order
to enhance Indemnitee's service to the Corporation in an effective manner, and
Indemnitee's reliance on the aforesaid provisions of the By-Laws, and in part to
provide Indemnitee with specific contractual assurance that the protection
promised by such provisions will be available to Indemnitee regardless of, among
other things, any amendment to or revocation of such provisions or any change in
the composition of the Corporation's Board of Directors or any acquisition or
business combination transaction relating to the Corporation, the Corporation
wishes to provide in this Agreement for the indemnification and advancement of
expenses to Indemnitee as set forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements herein set forth, the parties hereto
hereby agree as follows:
1. Indemnity.
(a) To
the fullest extent permitted by law (and regardless of any future provision of
the Articles of Incorporation (the “Articles”) or any
By-Law to the contrary), the Corporation shall indemnify Indemnitee in the event
Indemnitee is made, or threatened to be made, a party or a witness, or is
otherwise a participant in or to, an action, investigation or proceeding,
whether civil, administrative or criminal (including but not limited to an
action, investigation or proceeding by or in the right of the Corporation or by
or in the right of any other corporation or business entity of any type or kind,
domestic or foreign, which any officer and/or director of the Corporation served
in any capacity at the request of the Corporation), by reason of the fact that
Indemnitee is or was an officer and/or director of the Corporation (or served
any other corporation or business entity of any type or kind, domestic or
foreign, in any capacity at the request of the
Corporation). The foregoing indemnification shall be from and
against all judgments, fines, penalties, amounts paid in settlement and
reasonable expenses, including attorneys’ fees, actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with such action, suit,
investigation or proceeding, or any appeal therein. The Corporation
shall pay, in advance of final disposition of any such action, suit,
investigation or proceeding, expenses (including attorneys’ fees) incurred by
Indemnitee in defending or otherwise responding to such action or proceeding
upon receipt of (1) a written affirmation by the Indemnitee of the Indemnitee’s
good faith belief that Indemnitee has met the standard of conduct necessary for
indemnification by the Corporation, and (2) a
written undertaking by or on behalf of Indemnitee to repay
the amounts advanced if it is determined in a final order issued by a
court of competent jurisdiction from which no appeal may be taken that the
Indemnitee did not meet the required standard of conduct. The aforesaid written
affirmation and undertaking shall be consistent with provisions of applicable
law, including but not limited to the Nevada General Corporation
Law. For purposes of this Agreement, references to "serving at
the request of the Corporation" shall include any service as an officer and/or
director of the Corporation which imposes duties on, or involves services by,
such an officer and/or director with respect to an employee benefit plan or its
participants or beneficiaries, including but not limited to service as a trustee
or administrator of any such benefit plan.
(b)
Notwithstanding anything to the contrary in Section 1(a), the Corporation shall
indemnify Indemnitee in any action, suit or proceeding initiated by Indemnitee
only if Indemnitee acted with the authorization of the Corporation in initiating
that action, suit investigation or proceeding; provided, however, that any
action or proceeding brought under Section 9 shall not be subject to this
Section 1(b), and it is expressly agreed that the Corporation shall bear any and
all fees and expenses incurred by Indemnitee in seeking to enforce this
agreement.
(c)
Indemnitee shall be presumed to be entitled to indemnification for matters
covered in this Agreement. The burden of proof of establishing that Indemnitee
is not entitled to indemnification shall be on the Corporation.
(d)
Neither the Corporation nor Indemnitee shall unreasonably withhold their consent
to any proposed settlement of an indemnified claim, provided, however, that no
party shall be required to admit liability in connection with any proposed
settlement and Indemnitee shall not be required to bear any cost or expense in
connection with any proposed settlement of an indemnifiable claim.
2. Partial Indemnity; Successful
Defense.
(a) If
Indemnitee is entitled under any provisions of this Agreement to indemnification
by the Corporation for some or a portion of the expenses, judgments, fines,
taxes, penalties and amounts paid in settlement but not for the total amount
thereof, the Corporation shall indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.
(b) To
the extent that Indemnitee has been successful on the merits or otherwise in
defense or settlement of any action, suit, investigation or proceeding or in
defense of any issue or matter therein, including, without limitation, dismissal
without prejudice, Indemnitee shall be indemnified against any and all expenses
(including but not limited to attorneys’ fees), judgments, fines, taxes,
penalties and amounts paid in settlement with respect to such action, suit or
proceeding. Moreover, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any or all claims relating in whole or in part
to an indemnifiable event or in defense of any issue or matter therein,
including, without limitation, dismissal without prejudice, Indemnitee shall be
indemnified against all costs, charges and expenses, including, without
limitation, attorneys' fees and other fees and expenses, incurred in connection
therewith without further action or determination.
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(c) For
purposes of this Agreement, the termination of any action, suit, investigation
or proceeding, by judgment, order, settlement (whether with or without court
approval), 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 or this
Agreement.
3. Notice by
Indemnitee.
Indemnitee
shall notify the Corporation in writing of any matter with respect to which
Indemnitee intends to seek indemnification hereunder as soon as reasonably
practicable following the receipt by Indemnitee of written threat thereof; provided, however, that
failure to so notify the Corporation shall not constitute a waiver by Indemnitee
of his rights hereunder.
4. Advancement of
Expenses.
In the
event of any action, suit, investigation or proceeding against Indemnitee which
may give rise to a right of indemnification from the Corporation pursuant to
this Agreement, following written request to the Corporation by Indemnitee, the
Corporation shall advance to Indemnitee (or, at the request of the Indemnitee,
to such parties as are conducting the defense of any indemnified claim) amounts
to cover expenses incurred by Indemnitee in defending or otherwise responding to
or participating in any such action, suit, investigation or proceeding in
advance of the final disposition thereof upon receipt of (a) an Undertaking by
or on behalf of Indemnitee substantially in the form annexed hereto as Exhibit A
to repay the amount advanced in the event it shall ultimately be
determined by a court of competent jurisdiction from which no appeal can be
taken that Indemnitee is not entitled to be indemnified by the Corporation (the
“Undertaking”),
and (b) reasonably satisfactory evidence as to the amount of such expenses.
Indemnitee's Undertaking together with a copy of an expense statement billed to
Indemnitee or paid or to be paid by Indemnitee shall constitute satisfactory
evidence as to the amount of expenses to be advanced by the
Corporation. Following receipt of an Undertaking, the Corporation
shall, within 30 calendar days after receiving expense statements, make payment
of the expenses stated therein. No security shall be required in
connection with any Undertaking and any Undertaking shall be accepted without
reference to the Indemnitee's ability to make repayment.
5. Non-Exclusivity
of Right of Indemnification.
(a) The
indemnification rights granted to Indemnitee under this Agreement shall not be
deemed exclusive of, or in limitation of, any other rights that are more
beneficial to Indemnitee to which Indemnitee may be entitled under Nevada law,
the Corporation's articles of incorporation or by-laws, any other agreement, any
vote of shareholders or directors or otherwise. To the extent any applicable
law, the Corporation's articles of incorporation or by-laws, as in effect on the
date hereof or at any time in the future, permit greater or less limited or less
conditional indemnification or advance payment of expenses than is provided
for
in this
Agreement, Indemnitee shall enjoy such greater or less limited or less
conditional benefits so afforded, and this Agreement shall be deemed amended
without any further action by the Corporation or Indemnitee to grant such
greater benefits. It is the intention of the parties that nothing in
this Agreement shall limit or abridge the indemnification rights of Indemnitee
as set forth in the Articles, in any by-laws, in any directors’ and officers’
liability insurance coverage, or otherwise. Accordingly, in the event there is a
conflict between any provision in this Agreement and any provision of the
Articles or any by-law provision now in effect or which may be in effect in the
future, the controlling provision shall be that provision which would be more
favorable to Indemnitee and would result in broader and more expansive
indemnification rights in favor of Indemnitee.
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(b)
Indemnitee shall be entitled, in the sole discretion of Indemnitee, to elect to
have Indemnitee's rights hereunder interpreted on the basis of applicable law in
effect (i) at the time of execution of this Agreement, or (ii) at the time of
the occurrence of the indemnifiable event giving rise to a claim, or (iii) at
the time indemnification is sought.
6. Contribution.
If the
indemnification provided for in this Agreement is unavailable to Indemnitee for
any reason whatsoever, the Corporation, in lieu of indemnifying Indemnitee,
shall contribute to the amount incurred by Indemnitee, whether for expenses,
judgments, fines, taxes, penalties and amounts paid in settlement in connection
with any action, suit, investigation or proceeding, in such proportion as is
fair and reasonable in light of all of the circumstances of such
action by board action, arbitration or by the court before which such action was
brought in order to reflect (a) the relative benefits received by the
Corporation and Indemnitee as a result of the event(s) and/or transaction(s)
giving cause to such action; and/or (b) the relative fault of the Corporation
(and its other directors, officers, employees and agents) and Indemnitee in
connection with such event(s) and/or transaction(s). Indemnitee's right to
contribution under this Section 6 shall be determined in accordance with,
pursuant to and in the same manner as, the provisions in Sections 1 and 2
relating to Indemnitee's right to indemnification under this
Agreement.
7. Liability
Insurance.
(a) To
the extent the Corporation maintains at any time 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 other an officer and/or
director of the Corporation under such insurance policy.
(b) The
purchase and maintenance of such insurance shall not in any way limit or affect
the rights and obligations of the parties hereto, and the execution and delivery
of this Agreement shall not in any way be construed to limit or affect the
rights and obligations of the Corporation and/or of the other parties under any
such insurance policy.
(c) The
provisions of this Section 7 shall neither (i) restrict the Corporation’s right
to purchase any type of Officers’ and/or Directors’ liability coverage (or any
other insurance coverage that is reserved to or benefits solely or primarily
independent or non-executive directors), nor (ii) afford any officer or
non-executive director who is not insured under any such insurance policy a
claim against the Corporation, the Indemnitee, or any other entity arising from
the purchase or existence of such insurance coverage.
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8.
Termination of Agreement and
Survival of Right of Indemnification.
The
Corporation will require any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) to all or substantially all
of the business or assets of the Corporation, by agreement in form and substance
reasonably satisfactory to the then-current Board of Directors of the
Corporation, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent the Corporation would be required to perform if no
such succession had taken place. This Agreement will be binding upon
and inure to the benefit of the Corporation and any successor to the
Corporation, including, without limitation, any person acquiring directly or
indirectly all or substantially all of the business or assets of the Corporation
whether by purchase, merger, consolidation, reorganization or otherwise (and
such successor will thereafter be deemed the "Corporation" for purposes of this
Agreement), but this Agreement will not otherwise be assignable, transferable or
delegable by the Corporation. The rights granted to Indemnitee
hereunder shall continue and survive any termination of this Agreement and any
termination of Indemnitee’s service as an officer and/or director of the
Corporation and shall inure to the benefit of Indemnitee, Indemnitee’s personal
representatives, heirs, executors, administrators and
beneficiaries.
9. Resolution of All
Disputes Concerning Entitlement.
(a) It is
intent of the Corporation that the Indemnitee not be required to incur the
expenses associated with the enforcement of Indemnitee’s rights under this
Agreement by litigation or other legal action because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
the Indemnitee hereunder. Accordingly, if it should appear to the
Indemnitee that the Corporation has failed to comply with any of its obligations
under this Agreement or in the event that the Corporation or any other person
takes any action to declare this Agreement void or unenforceable, or institutes
any action, suit, investigation or proceeding designed (or having the effect of
being designed) to deny, or to recover from, the Indemnitee the benefits
intended to be provided to the Indemnitee hereunder, the Corporation irrevocably
authorizes the Indemnitee from time to time to retain counsel of Indemnitee’s
choice, at the expense of the Corporation as hereinafter provided, to represent
the Indemnitee in connection with the initiation or defense of any litigation or
other legal action, whether by or against the Corporation or any director,
officer, stockholder or other person affiliated with the Corporation, in any
jurisdiction. Regardless of the outcome thereof, the Corporation
shall pay and be solely responsible for any and all costs, charges and expenses,
including, without limitation, attorneys' and other fees and expenses,
reasonably incurred by the Indemnitee as a result of the Corporation's failure
to perform this Agreement or any provision thereof.
(b)The
exclusive forum for resolution of any controversy or claim arising
out of or relating to this Agreement or Indemnitee's entitlement to
indemnification under this Agreement shall be the Federal and State Courts
situated in the County of New York, State of New York, and the parties hereby
consent to the exclusive jurisdiction and venue of said courts and
waive any claim that said courts do not constitute a convenient or
appropriate venue, and agrees that service of process may be effected in any
such action, suit or proceeding by notice given in accordance with Section
11.
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10. Amendments,
Etc.
Except as
provided in Section 5, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver. No provision of this Agreement
may be waived, modified or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Indemnitee and the
Corporation. No waiver by either party hereto at any time of any
breach by the other party hereto or compliance with any condition or provision
of this Agreement to be performed by such other party will be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. This Agreement
may be executed in one or more counterparts, each of which will be deemed to be
an original but all of which together will constitute one and the same
agreement.
11. Notices.
All
notices, requests, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when
delivered by hand or when mailed by certified registered mail, return receipt
requested, with postage prepaid:
(a) If to
Indemnitee, to the corporate address of the Corporation provided directly
below.
(b) If to
the Corporation, to:
The
Xxxxxxx Corporation
Kells
Building,
621 Shady
Retreat Road, X.X. Xxx 0000
Xxxxxxxxxx,
XX 00000
c/o Chief
Executive Officer
-with
copies to-
The Board
of Directors of The Xxxxxxx Corporation
-and-
Xxxxxxx
X. Xxxxxx, Esq.
Xxxx
Xxxxx LLP
000
Xxxxxxxxx Xxxxxx
XX, XX
00000
or to
such person or address as Indemnitee or the Corporation shall furnish to the
other party in writing pursuant to the above.
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12.
Severability.
If any
provision of this Agreement is determined to be invalid, illegal or
unenforceable, this invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement, and there shall be substituted for the provision at issue a valid and
enforceable provision as similar as possible to the provision at
issue.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first above
stated.
THE
XXXXXXX CORPORATION:
By:
________________________
Name: Xxx
Xxxxxx
Title:
Chairman and Chief Executive Officer
INDEMNITEE:
_____________________________
Name:
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EXHIBIT A—GENERAL FORM OF
UNDERTAKING
1. This
Statement is submitted pursuant to the Indemnity Agreement effective _____________________,
2009 between THE XXXXXXX
CORPORATION, a corporation organized and existing under the laws of the
State of Nevada, (the "Corporation") and the
undersigned.
2. I
am requesting indemnification against expenses (including attorneys' fees) and
judgments, fines and amounts paid in settlement, all of which have been or will
be actually and reasonably incurred by me or on my behalf in connection with a
certain action, suit, investigation or other proceeding to which I am a party or
am threatened to be made a party, or in which I am or may be participating, by
reason of the fact that I am or was an officer and/or director of the
Corporation.
3. With
respect to all matters related to any such action, suit, investigation or other
proceeding, I believe I acted in good faith and in a manner I reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, I had no reason to believe
that my conduct was unlawful.
4. I
hereby affirm that I believe in good faith belief that I have met the standard
of conduct necessary for indemnification by the Corporation. I hereby undertake
to repay this advancement of expenses if it shall ultimately be determined
pursuant to a final order from which no appeal can be taken of a court of
competent jurisdiction that I am not entitled to be indemnified by the
Corporation under the aforesaid Indemnification Agreement or
otherwise.
5. I
am requesting indemnification in connection with the following
matter: [PROVIDE DETAILS]
|
___________________________
Name of
Indemnitee
|
Dated:
_____________
|
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