EMPLOYMENT AGREEMENT
AGREEMENT made this 20th day of December, 1999, between ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a
Nevada corporation ("Employer" and "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇ ("Employee").
WHEREAS, Employer desires to employ Employee and Employee desires to be employed
by Employer upon the terms and conditions hereinafter set forth.
Accordingly, in consideration of mutual covenants herein contained, the parties
hereto agree as follows:
1. Employment. The Employer will employ the Employee as the President of the
Company reporting to the Board of Directors of the Company. The Employee will
act as the senior executive of the Company with such duties and responsibilities
as are consistent with that position and as assigned to the Employee by the
board of directors of the Company, including, but not limited to administration
of the various departments of the Company, overseeing the strategy of the
Company, implementing communication with various segments of the international
community, and preparing forecasts of the activities of the Company. With the
Employee's consent, the Board of Directors of the Company will elect her as a
director of the Company. The Employee will perform her responsibilities
principally from an office located in Las Vegas, NV, provided that she will
travel to other locations, from time to time, as required for the full and
proper performance of her duties and responsibilities.
2. Term of Employment. The employment term will commence on the date hereof
for a period of twelve months, unless sooner terminated as hereinafter provided.
3. Compensation and Related Matters
(a) Salary. The Employee will be paid a gross monthly salary of USD$3,000
payable in installments every other week, in arrears after deduction of
amounts as are required by law to be deducted therefrom, but all deductions
shall be deemed to have been received for all purposes hereby, by the
Employee as part of the gross remuneration herein before mentioned.
Subsequent to the date of this Agreement, upon the Company receiving
$500,000 of new capital her gross monthly salary will be increased to
USD$7,000.
(b) Expenses. During the term of the Employee's employment hereunder, the
Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Employee in performing services
hereunder, including all expenses of travel and living expenses while away
from home on business or at the request of and in the service of the
Employer, provided that such expenses are incurred and accounted for and
are reasonable for an executive of her stature. .
(c) Vacation. During the term of the Employee's employment hereunder, the
Employee shall be entitled to take 15 business days of paid vacation, which
will accrue on a pro-rata basis. These vacation days shall be in addition
to paid sick leave days and to the Company's standard holidays.
(d) Car Allowance. Employee shall be paid a car allowance of $500 per month.
(e) Insurance. Employee shall be paid a medical and dental allowance of $500
per month until such time as the Company establishes its own executive
medical and dental plan, at which time the Company will provide the same to
Employee and her immediate family at no cost to her.
(f) Cellular Telephone. The Company will reimburse Employee for business
related cellular telephone calls and for reasonable standard monthly
cellular telephone fees.
4. Stock Options. On the effective date of this agreement, Employee will
receive from the Company an option to purchase shares of Common Stock of the
Company. The option will be represented by separate agreement. The option will
provide the right to purchase up to 360,000 shares of Common Stock of the
Company vesting 30,000 options per month during the term of this agreement and
exercisable for five years from each vesting date. If the Employee is
terminated, all unvested options are immediately cancelled.
5. Termination.
(a) The Employer may terminate the Employee's employment hereunder for any
reason on not less than thirty (30) days written notice to the Employee,
except in the case of death and disability. The Employee's employment shall
immediately terminate upon Employee's death and as a result of Employee's
disability as defined herein. The Employee may terminate her employment
hereunder on not less than thirty (30) days written notice to the Employer.
(b) If the employee's employment hereunder is terminated, the Employer shall:
pay Employee a lump sum payment on the date of such termination in an
amount equal to one months' base salary, car allowance and insurance
allowance, plus reimburse Employee for any accrued but unused vacation days
up until the date of termination.
(c) Disability shall mean the Employee's incapacity due to physical or mental
illness which prevents her from carrying out her duties hereunder on a full
time basis for a period of three consecutive months or an aggregate of 90
days in any consecutive twelve month period after 30 day's advance notice
of termination is given by the Company (which may occur before or after the
end of the disability periods described above).
(d) Notice of Termination. Any termination of the Employee's employment by the
Employer or by the Employee (other than termination pursuant to death)
shall be communicated by written notice of termination to the other party
hereto.
6. Non-Competition. Except in furtherance of the business of the Employer and
as specifically provided in this Agreement, during the employment term and (for
a period of one year after the employment term) under this Agreement,
the Employee will not, on her own behalf or on behalf of any other person,
company, corporation, partnership or other entity or enterprise (collectively
"Person") directly or indirectly provided that the Employee is paid a one year
base salary, lump sum upon termination:
(a) divert or use the resources of the Employer or its affiliates to or for any
other Person;
(b) divert or use a business opportunity of the Employer or its affiliates to
or for any other Person,
(c) solicit any employees, agents or consultants of the Employer or its
affiliates to terminate their business relationship with the Employer or
its affiliates or to cause or encourage them to substantially alter their
business relationship with the Employer or its affiliates; or
(d) for any business purpose, solicit or otherwise communicate with any client
of the Employer or its affiliates or with any Person that is a reasonably
potential client of the Employer or its affiliates, with the intention of
hurting the relationship between that client and the Employer.
7. Confidentiality. The Employee acknowledges that in and as a result of her
employment hereunder, she will be making use of, acquiring and/or adding to
confidential information of special and unique nature and value relating to such
matters as the Employer's and its affiliates trade secrets, systems, procedures,
manuals, confidential reports and lists of clients, as well as the nature and
type of services rendered by the Employer and its affiliates, and the equipment
and methods used by the Employer and its affiliates ("Confidential
lnformation"). As a material inducement to the Employer to enter into this
Agreement, and to pay to the Employee the compensation referred to in this
Agreement, Employee covenants and agrees that she shall not, at any time during
or following the term of her employment hereunder, directly or indirectly,
divulge or disclose, for any purpose whatsoever (other than in the course of her
employment duties where warranted), any of such Confidential Information which
has been obtained by or disclosed to her as a result of, Employee's employment
by the Employer. In the event of a breach or threatened breach by the Employee
of any of the provisions of this Section 7, the Employer and its affiliates, in
addition to and not in limitation of any other rights, remedies or damages
available to the Employer and its affiliates at law or in equity, shall be
entitled to a permanent injunction in order to prevent or to restrain any such
breach by Employee, or by Employee's partners, agents, representatives,
servants, employers, employees and/or any all persons directly or indirectly
acting for or with her.
The Employee acknowledges that, in and as a result of her employment hereunder,
she will acquire Confidential Information about the clients of the Employer and
its affiliates. Employee covenants and agrees that she shall not, at any time
during or following the term of employment hereunder, directly or indirectly,
divulge or disclose, for any purpose whatsoever (other than in the course of her
employment duties where warranted) any Confidential Information about the
client, which has been obtained by or disclosed to her as a result of her
employment with the Employer.
It should be noted that Confidential Information does not include any items
which: (i) prior to disclosure, is known to the public; (ii) after disclosure,
becomes known to the public or otherwise ceases to be a trade secret, through no
act or omission of the Employee in violation of this Agreement; (iii) is
required to be disclosed pursuant to applicable laws, rules or regulations or
government requirement or court order (provided, however, that Employee shall
promptly advise the Employer of its notice of any such requirement or order);
(v) is already rightfully in the Employee's possession at the time of
disclosure; (vi) is independently developed by or for the Employee; or (vii) is
received by the Employee from another person or entity whom the Employee
reasonably believes is not obligated to the Employer to keep the same
confidential.
8. Inventions and Other Intellectual Property. The Employee hereby agrees that
all right, title and interest in and to all of the Employee's "Discoveries" and
work product made during the term of employment related to the business of the
Employer or its affiliates, whether pursuant to this Agreement or otherwise,
shall belong solely to the Employer and its affiliates, whether or not they are
protected or protectable under applicable patent, trademark, service ▇▇▇▇,
copyright or trade secret laws. For purposes of this Section 8, "Discoveries"
means all inventions, designs, discoveries, improvements and works of
authorship, including, without limitation, any information relating to the
Employer's, and its affiliates' know-how, processes, designs, computer programs
and routines, formulae, techniques, developments or experimental work, or
work-in-progress made or conceived or reduced to practice by the Employer. The
Employee agrees that all work or other material containing or reflecting any
Discoveries and work product shall be deemed to be work made for hire and shall
be owned by the Employer and its affiliates without further consideration. If it
is determined that any works not works made for hire, the Employee hereby
assigns to the Employer and its affiliates all of the Employee's right, title
and interest, including all rights of copyright, patent, and other intellectual
property rights, to or in such Discoveries or work product. The Employee
covenants that she shall keep the Employer and its affiliates informed of the
development of all Discoveries or work product made, conceived or reduced to
practice by the Employer and its affiliates, in whole or in part, alone or with
others, which either result from any work the Employee may do for, or at the
request of, the Employer and its affiliates, or are related to the Employer's
and its affiliates present or contemplated activities, investigations, or
obligations. The Employee further agrees that at the Employer's and its
affiliates request and expense, she will execute any assignments or other
documents necessary to transfer any such Discoveries or work product to the
Employer and its affiliates and to cooperate with the Employer and its
affiliates or its nominee in perfecting the Employer's and its affiliates' title
(or the title of the Employer's or its affiliates nominee) in such materials.
The employee grants the Employer and its affiliates a permanent, non-exclusive,
paid-up and worldwide license under the Employee intellectual property rights in
any Discoveries or work product that is delivered to the Employer and its
affiliates by the Employee in connection with the performance of services for
the Employer and its affiliates to use, have used, make, have made, sell and
have sold such Discoveries and reproduce in quantities, prepares derivative
works and publicly display and distribute such work product.
9. Successors; Binding Agreement. The Employer will use its commercially
reasonable best efforts to require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Employer, by agreement in form and substance
satisfactory to the Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Employer would be
required to perform it if no such succession had taken place. Failure of the
Employer to obtain such agreement prior to the effectiveness of any such
succession, however, shall not be a breach of this Agreement.
Employee shall not have the right to assign any obligation or benefit under this
Agreement to any person. This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributes, devises and legatees. If the Employee should die or is legally
incapacitated while any amounts would still be payable to her hereunder if she
had continued to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to the Employee's
devisee, legatee, or other designee or, if there be no such designee, to the
Employee's estate.
10. Return of Property. Upon the termination of the employment of Employee, all
property (including, but not limited to, keys, records, notes, data, memoranda,
models, credit cards and equipment) that is in the Employee's possession or
under the Employee's control, which is the property of the Company or related to
Company will be returned to Company by Employee or destroyed at the direction of
the Company, which destruction will be certified by Employee.
11. Indemnification. Employee is entitled to the rights of indemnification
available to officers and directors under the corporation law of the state of
incorporation of the Company and, if any, the provisions of the certificate of
incorporation and by-laws of the Company. To this end, simultaneous with the
execution of this Employment Agreement, the Company will enter into a more
formal Indemnification Agreement with Employee in substantially the same format
as is attached hereto on Exhibit 1. If the Company obtains director and officer
liability insurance or similar insurance coverage it will provide that Employee
will be covered thereunder at all times during which Employee is a director or
an officer of the Company.
12. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
if to the Employee: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
if to the Employer: ▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ and 14
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Mollen & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
13. Miscellaneous. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the Employee and the Employer. No waiver by either party hereto at any
time of any breach by the other 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 that are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Nevada.
14. Validity. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
15. Counterparts. This Agreement maybe executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
16. Construction. It will be an irrefutable presumption that this agreement was
drafted by the Company and the Employee. The parties hereto also acknowledge the
ability and opportunity to have this agreement reviewed by independent counsel
of their own choosing prior to signing.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and
year first above written.
▇▇▇▇▇▇▇▇▇.▇▇▇ INC.: EMPLOYEE:
By: ___________________________________ By: ______________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Authorized Signatory ▇▇▇▇▇▇ ▇▇▇▇▇
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement"), dated as of
this 20th day of December, 1999, is made by and between ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a
Nevada corporation (the "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Indemnitee"), an
"agent" (as hereinafter defined) of the Company.
RECITALS
A. The Company recognizes that competent and experienced
persons are increasingly reluctant to serve as directors or officers of
corporations unless they are protected by comprehensive liability insurance or
indemnification, or both, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to the fact
that the exposure frequently bears no reasonable relationship to the
compensation of such directors and officers; and
B. The statutes and judicial decisions regarding the duties of
directors and officers are often difficult to apply, ambiguous, or conflicting,
and therefore fail to provide such directors and officers with adequate,
reliable knowledge of legal risks to which they are exposed or information
regarding the proper course of action to take; and
C. The Company and Indemnitee recognize that plaintiffs often
seek damages in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense and/or
settlement of such litigation is often beyond the personal resources of officers
and directors; and
D. The Company believes that it is unfair for its directors
and officers to assume the risk of huge judgments and other expenses which may
occur in cases in which the director or officer received no personal profit and
in cases where the director or officer acted in good faith; and
E. The Company, after reasonable investigation, has determined
that the liability insurance coverage presently available to the Company
provides only limited protection and may not continue to be available at
acceptable premium rates. The Company believes that the interests of the Company
and its stockholders would best be served by a combination of such insurance (to
the extent it remains reasonably available) and the indemnification by the
Company of the directors and officers of the Company; and
F. Chapter 78 of the General Corporation Law of Nevada
("Chapter 78"), under which the Company is organized, empowers the Company to
indemnify its officers, directors, employees and agents by agreement and to
indemnify persons who serve, at the request of the Company, as the directors,
officers, employees or agents of other corporations or enterprises, and
expressly provides that the indemnification provided by Chapter 78 is not
exclusive; and
G. The board of directors of the Company (the "Board of
Directors") has determined that contractual indemnification as set forth herein
is not only reasonable and prudent but necessary to promote the best interests
of the Company and its stockholders; and
H. The Company desires and has requested the Indemnitee to
serve or continue to serve as a director or officer of the Company free from
undue concern for claims for damages arising out of or related to such services
to the Company; and
I. The Indemnitee is willing to serve, or to continue to serve
as a director or officer of the Company, provided that the Indemnitee is
furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions.
(a) Agent. For purposes of this Agreement, "agent" of the
Company means any person who (i) is or was a director, officer, employee or
other agent of the Company or a subsidiary of the Company or (ii) is or was
serving at the request of, for the convenience of, or to represent the interests
of the Company or a subsidiary of the Company as a director, officer, employee
or agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise.
(b) Expenses. For purposes of this Agreement, "expenses"
include all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys' fees and related disbursements,
other out-of-pocket costs and reasonable compensation for time spent by the
Indemnitee for which he is not otherwise compensated by the Company or any third
party, provided that the rate of compensation and estimated time involved are
approved in advance by the Board of Directors), actually and reasonably incurred
by the Indemnitee in connection with the investigation, defense or appeal of a
proceeding or establishing or enforcing a right to indemnification under this
Agreement; Chapter 78 or otherwise, and amounts paid in settlement by or on
behalf of the Indemnitee, but shall not include any judgments, fines or
penalties actually levied against the Indemnitee.
(c) Proceeding. For the purposes of this Agreement
"proceeding" means any threatened, pending, or completed action, suit or other
proceeding, whether civil, criminal, administrative, investigative or any other
type whatsoever.
(d) Subsidiary. For purposes of this Agreement, "subsidiary"
means any corporation of which more than fifty percent (50%) of the outstanding
voting securities are owned directly or indirectly by the Company, by the
Company and one or more other subsidiaries, or by one or more subsidiaries.
(e) Other Enterprise; Fines; Serving at the Request of the
Company. For Purposes of this Agreement, "other enterprise shall include
employee benefit plans; reference to "fines" shall include any excise tax
assessed with respect to any employee benefit plans; and 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 any employee
benefit plan, its participants, or beneficiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue
to serve as an agent of the Company at its will (or under separate agreement, if
such agreement exists), in the capacity the Indemnitee currently serves as an
agent of the Company, so long as the Indemnitee is duly appointed or elected and
qualified in accordance with the applicable provisions of the bylaws of the
Company or any subsidiary of the Company or until such time as the Indemnitee
tenders his resignation in writing; provided, however, that nothing contained in
this Agreement is intended to create any right to continued employment of the
Indemnitee in any capacity or to adversely affect the rights of Indemnitee under
any indemnity agreement executed after the date hereof.
3. Indemnity in Third Party Proceedings and Derivative Actions. Subject
to Section 10 below, the Company shall indemnify the Indemnitee if the
Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any proceeding (including a proceeding by or in the name of the
Company to procure a judgment in its favor) by reason of the fact that the
Indemnitee is or was an agent of the Company, or by reason of any act or
inaction by him in any such capacity, against any and all expenses and
liabilities of any type whatsoever (including, but not limited to, judgments,
fines and penalties), actually and reasonably incurred by him in connection with
the investigation, defense, settlement or appeal of such proceeding.
4. Indemnification of Expenses of Successful Party. In addition to any
other indemnity provided by this Agreement, to the extent that the Indemnitee
has been successful on the merits or otherwise in defense of any proceedings or
in defense of any claim, issue or matter therein, including the dismissal of any
action without prejudice, the Company shall indemnify the Indemnitee against all
expenses actually and reasonably incurred in connection with the investigation,
defense or appeal of such proceeding.
5. Partial Indemnification. If the 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 (including, but
not limited to, judgments, fines or penalties) actually and reasonably incurred
by him in the investigation, defense, settlement or appeal of a proceeding but
is not entitled, however, to indemnification for the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for the portion thereof to
which the Indemnitee is entitled.
6. Advancement of Expenses. Subject to Section 10 (b) below, the
Company shall advance reasonable expenses incurred by the Indemnitee in
connection with the investigation, defense, settlement or appeal of any
proceeding to which the Indemnitee is a party or is threatened to be made a
party by reason of the fact that the Indemnitee is or was an agent of the
Company. The Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Company as authorized by
this Agreement. The advances to be made hereunder shall be paid by the Company
to or on behalf of the Indemnitee within thirty (30) days following delivery of
a written request with sufficient back-up therefor by the Indemnitee to the
Company.
7. Notice and Other Indemnification Procedures
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any proceeding, the Indemnitee
shall, if the Indemnitee believes that indemnification with respect thereto may
be sought from the Company under this Agreement, notify the Company of the
commencement or threat of commencement thereof.
(b) Any indemnification requested by the Indemnitee under
Section 3 hereof shall be made no later than thirty (30) days after receipt of
the written request of Indemnitee, unless a good faith determination is made
within said thirty (30) day period (i) by the Board of Directors of the Company
by a majority vote of a quorum thereof consisting of directors who are
disinterested in such proceedings, or (ii) in the event such a quorum is not
obtainable, at the election of the Company, either by independent legal counsel
in a written opinion addressed to the Indemnitee or by a panel of arbitrators,
one of whom is selected by the Indemnitee, one of whom is selected by the
Company, and the last of whom is selected by the first two arbitrators so
selected, that the Indemnitee is not or (subject to final judgment or other
final adjudication as provided in Section 10 (a) below) ultimately will not be
entitled to indemnification hereunder.
(c) The Company shall indemnify the Indemnitee against all
expenses incurred in connection with any hearing or proceeding under this
Section 7 if the Indemnitee prevails in such hearing or proceeding.
(d) The Indemnitee shall indemnify the Company against all
expenses incurred in connection with any hearing or proceeding under this
Section 7 if the Company prevails in such hearing or proceeding.
8. Assumption of Defense. In the event the Company shall be obligated
to pay the expenses of any proceeding against the Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding, with
counsel reasonably acceptable to the Indemnitee, upon the delivery to the
Indemnitee of written notice of its election to do so. After delivery of such
notice, approval of such counsel by the Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to the Indemnitee under
this Agreement for any fees of counsel subsequently incurred by the Indemnitee
with respect to the same proceeding, provided that (i) the Indemnitee shall have
the right to employ his counsel in such proceeding at the Indemnitee's expense;
and (ii) if (a) the employment of counsel by the Indemnitee has been previously
authorized in writing by the Company, (b) the Company shall have reasonably
concluded that there may be a conflict of interest between the Company and the
Indemnitee in the conduct of any such defense, or (c) the Company shall not, in
fact, have employed counsel to assume the defense of such proceeding within a
reasonable time, the fees and expenses of the Indemnitee's counsel shall be at
the expense of the Company.
9. Insurance. The Company may, but is not obligated to obtain
directors' and officers' liability insurance ("D&O Insurance") as may be or
become available with respect to which the Indemnitee is named as an insured.
Notwithstanding any other provision of this Agreement, the Company shall not be
obligated to indemnify the Indemnitee for expenses, judgments, fines or
penalties which have been paid directly to the Indemnitee by D&O Insurance. If
the Company has D&O Insurance in effect at the time the Company receives from
the Indemnitee any notice of the commencement of a proceeding, the Company shall
give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the policy. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policy.
10. Exceptions. Any provision herein to the contrary notwithstanding,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Certain Matters. To indemnify the Indemnitee on account of
any proceeding with respect to (i) which final judgment is rendered against the
Indemnitee for an accounting of profits made from the purchase or sale by the
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, including any statute which makes
actionable the use of non-public information or self-dealing or (ii) any
proceeding to the extent it is determined by final judgment or other final
adjudication that the Indemnitee's conduct was grossly negilgent, intentionally
fraudulent, criminal or in bad faith and not believed by the Indemnitee to be in
the best interests of the Company. For purposes of the foregoing sentence, a
final judgment or other adjudication may be reached in either the underlying
proceeding or action in connection with which indemnification is sought or a
separate proceeding or action to establish rights and liabilities under this
Agreement; or
(b) Claims Initiated by Indemnitee. To indemnify or advance
expenses to the Indemnitee with respect to proceedings or claims initiated or
brought voluntarily by the Indemnitee and not by way of defense, except with
respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise as
required under Chapter 78, but such indemnification or advancement of expenses
may be provided by the Company in specific cases if the Board of Directors finds
it to be appropriate; or
(c) Action for Indemnification. To indemnify the Indemnitee
for any expenses incurred by the Indemnitee with respect to any proceeding
instituted by the Indemnitee to enforce or interpret this Agreement if the
Indemnitee does not prevail in such proceeding; or
(d) Unauthorized Settlements. To indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of a proceeding effected
without the Company's written consent. The Company shall not settle any
proceeding without the Indemnitee's written consent. Neither the Company nor the
Indemnitee will unreasonably withhold consent to any proposed settlement;
provided, however, that the Company may in any event decline to consent to (or
to otherwise admit or agree to any liability for indemnification hereunder in
respect of) any proposed settlement if the Company determines (pursuant to
Section 7 (b) above) that the Indemnitee is not or ultimately will not be
entitled to indemnification hereunder; or
(e) Securities Act Liabilities. To Indemnify the Indemnitee or
otherwise act in violation of any undertaking in any registration statement
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act"). The Indemnitee acknowledges that paragraph (i) of
Item 512 of Regulation S-K currently generally requires the Company to undertake
in connection with any registration statement filed under the Act to submit the
issue of the enforceability of the Indemnitee's rights under this Agreement in
connection with any liability under the Act on public policy grounds to a court
of appropriate jurisdiction and to be governed by any final adjudication of such
issue. The Indemnitee specifically agrees that any such undertaking shall
supersede the provisions of this Agreement and to be bound by any such
undertaking.
11. Non-Exclusivity. The provisions for indemnification and advancement
of expenses set forth in this Agreement shall not be deemed exclusive of any
other rights which the Indemnitee may have under any provision of law, the
Company's Certificate of Incorporation or Bylaws, in any court in which a
proceeding is brought, the vote of the Company's stockholders or disinterested
directors, other agreements or otherwise, both as to action in the Indemnitee's
official capacity and to action in another capacity while occupying his position
as an agent of the Company, and the Indemnitee's rights hereunder shall continue
after the Indemnitee has ceased acting as an agent of the Company and shall
inure to the benefit of the heirs, executors and administrators of the
Indemnitee.
12. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers reasonably required
and shall do everything reasonably requested to secure such rights, including
the execution of such documents to enable the Company effectively to bring suit
to enforce such rights.
13. Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent now or hereafter
permitted by law.
14. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever
in a jurisdiction, (i) the validity, legality and enforceability of the
remaining provisions of this Agreement (including without limitation all
portions of any paragraphs of this Agreement containing any such provision held
to be invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby in such jurisdiction, (ii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any
paragraph of this Agreement containing any such provision held to be invalid,
illegal, or unenforceable in such jurisdiction, and (iii) such invalidity,
illegality or unenforceability shall not affect the interpretation or
enforceability of this Agreement in any other jurisdiction.
15. Modification and Waiver. 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 be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
16. Successors and Assigns. The terms of this Agreement shall bind, and
shall inure to the benefit of, the successors and assigns of the parties hereto.
17. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
by telegram, telecopy or telex, upon answer back or other similar acknowledgment
of receipt, (ii) if delivered by hand and receipted for by the party addressee
or (iii) if mailed by certified or registered mail with postage prepaid, upon
actual receipt. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written notice.
The address of Company for purposes of this paragraph is as follows:
▇▇▇▇▇▇▇▇▇.▇▇▇ inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇▇ and 14
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Indemnitee shall be as follows:
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18. Governing Law. This Agreement shall be governed exclusively by and
construed according to the laws of the state of Nevada, as applied to contracts
between Nevada residents entered into and to be performed within and outside of
the state of Nevada.
19. Entire Agreement. This Agreement constitutes the entire agreement
of the parties hereto and supersedes and replaces any and all prior agreements
and understandings, whether oral or written, express or implied, between the
parties with respect to the subject matter herein.
▇▇▇▇▇▇▇▇▇.▇▇▇, INC. THE INDEMNIFIED PARTY:
A Nevada Corporation
By:
________________________________ ______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Authorized Signatory