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EXHIBIT 6.3
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of ____________,
_____, between NuPro Innovations Inc., a Delaware corporation ("CORPORATION"),
and___________, a Director of the Corporation ("DIRECTOR").
RECITALS:
WHEREAS, Director is an advisor and consultant of the Corporation,
serving as a member of the Corporation's Board of Directors (the "BOARD"), and
performs a valuable service in such capacity for the Corporation;
WHEREAS, the Corporation, as authorized by the Bylaws of the
Corporation and by specific action of its Board of Directors and by this
contract, has elected to provide for the indemnification of the members of the
Corporation's Board; and
WHEREAS, in order to induce Director to serve as a member of the
Board, the Corporation has determined and agreed to enter into this contract
with Director;
NOW, THEREFORE, in consideration of Director's service as a
participating member of the Board, and intending to be legally bound thereby,
the Corporation and the Director hereby agree as follows:
1. Indemnification. Except as otherwise provided below, the Corporation
hereby agrees to hold harmless and indemnify Director against any and all
expenses, including attorney's fees, witness fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by Director in connection
with any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including an action by or in
the right of the Corporation) to which Director is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact that Director
is, was or at any time becomes an employee serving as a member of the Board, or
by reason of any action taken by him or any inaction on his part while acting in
any such capacity.
2. Limitations on Indemnity. The Corporation shall not indemnify
Director for the following:
(A) The Corporation will not indemnify the Director to the extent
that he is reimbursed from insurance proceeds or from any other party, except to
the extent the aggregate of the expenses incurred by Director exceeds the sum of
such compensation;
(B) In respect to remuneration paid to Director, if it shall be
determined by a final adjudication that such remuneration was in violation of
the law; pro rata allocation or any other method of allocation which does not
take account of the foregoing equitable considerations.
(C) On account of any suit in which judgment is rendered against
Director for an accounting of profits made from the purchase or sale by Director
of securities of the
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Corporation 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 statutory law, or on account of any suit in which a final judgment is
rendered against the Director for violation of Section 10(b) or Rule 10b(5) of
the Securities and Exchange Act of 1934, as amended, or similar provisions of
any federal, state or local law;
(D) On account of Director's conduct which is finally adjudged to
have been knowingly fraudulent or deliberately dishonest, or to constitute
willful misconduct;
(E) On account of Director's conduct which is the subject of an
action, suit or proceeding described in Section 6(C)(ii) hereof;
(F) On account of any action, claim or proceeding (other than a
proceeding referred to in Section 7(B) hereof) initiated by the Director unless
such action, claim or proceeding was authorized in the specific case by action
of the Board of Directors of the Corporation; or
(G) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is now lawful (and, in this respect,
both Corporation and Advisor have been advised that the Securities and Exchange
Commission believes that indemnification for liabilities arising under the
federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication).
3. Contribution. If the indemnification provided in Section 1 hereof is
unavailable by reason of a court decision described in Section 2(G) hereof based
on grounds other than any of those set forth in paragraphs (B) through (F) of
Section 2 hereof, then in respect of any threatened, pending or completed
action, suit or proceeding in which the Corporation is jointly liable with
Director (or would be if joined in such action, suit or proceeding), the
Corporation shall contribute to the amount of expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Director in such proportion as is appropriate to
reflect (i) the relative benefits received by the Corporation on the one hand
and Director on the other hand from the transaction from which such action, suit
or proceeding arose, and (ii) the relative fault of the Corporation on the one
hand and of Director on the other in connection with the events which resulted
in such expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the Corporation on the
one hand and of Director on the other shall be determined by reference to, among
other things, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such expenses,
judgments, fines or settlement amounts. Corporation agrees that it would not be
just and equitable if contribution pursuant to this Section 3 were determined by
pro rata allocation or any other method of allocation which does not take
account of the foregoing equitable considerations.
4. Continuation of Obligations. All agreements and obligations of the
Corporation, its successors and assigns, contained herein shall continue during
the period Director is serving as a member of the Board of the Corporation and
shall continue thereafter so long as Director shall be subject to any possible
claim or threatened, pending or completed action, suit or
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proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that Director was serving as a member of the Board of the
Corporation.
5. Notification and Defense of Claim. The Director, as a condition
precedent to his right to be indemnified under this Agreement, shall give the
Corporation prompt notice in writing of any claim for which indemnity will or
could be sought under this agreement, not later than thirty (30) days after
receipt by Director of notice of the commencement of any action, suit or
proceeding. Notice to the Corporation for this or any other purpose under this
Agreement shall be directed to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, NuPro Innovations Inc., ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇. With respect to any such
action, suit or proceeding as to which Advisor notifies the Corporation of the
commencement thereof:
(A) The Corporation will be entitled to participate therein at its
own expense;
(B) Except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Director. After notice from the Corporation to Director of its
election so as to assume the defense thereof, the Corporation will not be liable
to Director under this Agreement for any legal or other expenses subsequently
incurred by Director in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Director shall
have the right to employ its counsel in such action, suit or 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 Director unless
(i) the employment of counsel by Director has been authorized by the
Corporation, (ii) Director shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Director in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of Director's separate counsel shall be at the expense of the
Corporation. The Corporation shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Corporation or as to
which Director shall have made the conclusion provided for in (ii) above; and
(C) The Corporation shall not be liable to indemnify Advisor under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Corporation shall be permitted to
settle any action except that it shall not settle any action or claim in any
manner which would impose any penalty or limitation on Director without
Director's written consent. Neither the Corporation nor Director will
unreasonably withhold its consent to any proposed settlement.
(D) The Director shall give the Corporation such information and
cooperation as he may reasonably require and as shall be within the Director's
power.
6. Advancement and Repayment of Expenses.
(A) In the event that Director employs his own counsel pursuant to
Section 5(B)(i) through (iii) above, the Corporation shall advance to Director,
prior to any final disposition of any threatened or pending action, suit or
proceeding, whether civil, criminal,
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administrative or investigative, any and all reasonable expenses (including
legal fees and expenses) incurred in investigating or defending any such action,
suit or proceeding within ten (10) days after receiving copies of invoices
presented to Director for such expenses.
(B) Director agrees that Director will reimburse Corporation for all
reasonable expenses paid by the Corporation in defending any civil or criminal
action, suit or proceeding against Director in the event and only to the extent
it shall be ultimately determined by a final judicial decision (from which there
is no right of appeal) that Director is not entitled, under the provisions of
the Act, this Agreement or otherwise, to be indemnified by the Corporation for
such expenses.
(C) Notwithstanding the foregoing, the Corporation shall not be
required to advance such expenses to Director if Director (i) commences any
action, suit or proceeding as a plaintiff unless such advance is specifically
approved by a majority of the Board of Directors or (ii) is a party to an
action, suit or proceeding brought by the Corporation and approved by a majority
of the Board which alleges willful misappropriation of corporate assets by
Director, disclosure of confidential information in violation of Director's
fiduciary or contractual obligations to the Corporation, or any other willful
and deliberate breach in bad faith of Director's duty to the Corporation or its
stockholders.
7. Enforcement.
(A) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligation imposed on the
Corporation hereby in order to induce Director to serve on the Board of the
Corporation, and acknowledges that Director is relying upon this Agreement in
continuing in such capacity.
(B) In the event Director is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful in such
action, the Corporation shall reimburse Director for all Director's reasonable
fees and expenses in bringing and pursuing such action.
8. Subrogation. In the event of payment to the Director under this
Agreement, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Director, who shall execute all documents
required and shall do all acts that may be necessary to secure such rights and
to enable the Corporation effectively to bring suit to enforce such rights.
9. Non-Exclusivity of Rights. The rights conferred on Director by this
Agreement shall not be exclusive of any other rights which Director may have or
hereafter acquire under any statute, provision of the Corporation's Articles of
Incorporation or Bylaws, agreement vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
10. Survival of Rights. The rights conferred on Director by this
Agreement shall continue after Director has ceased to be a director of the
Corporation and shall inure to the benefit of Director's heirs, executors and
administrators.
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11. Separability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any or
all of the provisions hereof shall be held to be invalid or unenforceable for
any reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof or the obligation of the
Corporation to indemnify the Director to the full extent provided by the Act.
12. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
13. Binding Effect. This Agreement shall be binding upon Director and
upon the Corporation, its successors and assigns, and shall inure to the benefit
of Director, his heirs, personal representative and assigns and to the benefit
of the Corporation, its successors and assigns.
14. Effective Date. The Corporation's indemnity obligations hereunder
shall be applicable to any and all claims made after the effective date of this
Agreement, regardless of when the facts upon which such claims are based
occurred.
15. Gender. The use of the masculine gender in this Agreement is for
convenience only and shall be deemed to include the feminine.
16. Miscellaneous. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Director and the Corporation. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall 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, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement on and as of the day first above written.
NUPRO INNOVATIONS INC., a Delaware corporation
By:
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Title: President and CEO
Director
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