DIGITALFX INTERNATIONAL, INC. INDEMNIFICATION AGREEMENT
DIGITALFX
INTERNATIONAL, INC.
This
Indemnification Agreement (“Agreement”)
is
entered into on October __, 2008 to be effective as of the Effective Date (as
defined below), by and between DigitalFX International, Inc., a Florida
corporation (the “Company”),
and
_________________________ (“Indemnitee”).
WHEREAS,
Indemnitee’s service to the Company substantially benefits, and has benefited
since the Effective Date, the Company;
WHEREAS,
competent and experienced individuals are reluctant to serve as directors or
officers of corporations or in certain other capacities unless they are provided
with adequate protection through insurance or indemnification against the risks
of claims and actions against them arising out of such service;
WHEREAS,
Indemnitee does not regard the protection currently provided by applicable
law,
the Company’s governing documents and any insurance as adequate under the
present circumstances, and Indemnitee would not have been willing to serve
as a
director or officer without additional protection;
WHEREAS,
in order to originally induce Indemnitee to provide services to the Company
and/or its subsidiaries, and to induce Indemnitee to continue to provide such
services, it is reasonable, prudent and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses on behalf
of, Indemnitee as permitted by applicable law, in all cases from and after
the
Effective Date; and
WHEREAS,
this Agreement is a supplement to and in furtherance of the indemnification
provided in the Company’s articles of incorporation and bylaws, and any
resolutions adopted pursuant thereto, and this Agreement shall not be deemed
a
substitute therefor, nor shall this Agreement be deemed to limit, diminish
or
abrogate any rights of Indemnitee thereunder.
NOW,
THEREFORE, the Company and Indemnitee do hereby agree as follows:
1. Definitions.
(a) “Corporate
Status”
describes the status of a person who is or was a director, trustee, general
partner, managing member, officer, employee, agent or fiduciary of the Company
or any other Enterprise.
(b) “FBS”
means
the Florida Business Statutes, as amended.
(c) “Disinterested
Director”
means
a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(d) “Effective
Date”
means
the date that Indemnitee first commenced services as a director, officer or
manager of the Company or one or more of its subsidiaries.
(e) “Enterprise”
means
the Company and any other corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a director,
trustee, general partner, managing member, officer, employee, agent or
fiduciary.
(f) “Expenses”
include
all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees
and costs 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,
being or preparing to be a witness in, or otherwise participating in, a
Proceeding. Expenses also include (i) Expenses incurred in connection with
any
appeal resulting from any Proceeding, including without limitation the premium,
security for, and other costs relating to any cost bond, supersedeas bond or
other appeal bond or their equivalent, and (ii) for purposes of Section 12(d),
Expenses incurred by Indemnitee in connection with the interpretation,
enforcement or defense of Indemnitee’s rights under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company.
Expenses, however, shall not include amounts paid in settlement by Indemnitee
or
the amount of judgments or fines against Indemnitee.
(g) “Independent
Counsel”
means
a
law firm, or a partner or member of a law firm, that is experienced in matters
of corporation law and neither presently is, nor in the past five years has
been, retained to represent (i) the Company or Indemnitee in any matter material
to either such party (other than as Independent Counsel with respect to matters
concerning Indemnitee under this Agreement, or other indemnitees under similar
indemnification agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term “Independent
Counsel”
shall
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(h) “Proceeding”
means
any threatened, pending or completed action, suit, arbitration, mediation,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or proceeding, whether brought in the right of the Company or otherwise
and whether of a civil, criminal, administrative or investigative nature,
including any appeal therefrom, in which Indemnitee was, is or will be involved
as a party, a potential party, a non-party witness or otherwise by reason of
(i)
the fact that Indemnitee is or was a director or officer of the Company, (ii)
any action taken by Indemnitee or any action or inaction on Indemnitee’s part
while acting as a director or officer of the Company, or (iii) the fact that
he
or she is or was serving at the request of the Company as a director, trustee,
general partner, managing member, officer, employee, agent or fiduciary of
the
Company or any other Enterprise, in each case whether or not serving in such
capacity at the time any liability or Expense is incurred for which
indemnification or advancement of expenses can be provided under this
Agreement.
(i) Reference
to “other
enterprises”
shall
include employee benefit plans; references to “fines”
shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; 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 acted in good faith and in a manner he or she
reasonably believed to be in the best interests 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.
2. Indemnity
in Third-Party Proceedings.
The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 2 if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding, other than a Proceeding by or in the right of
the
Company to procure a judgment in its favor. Pursuant to this Section 2,
Indemnitee shall be indemnified to the fullest extent permitted by applicable
law against all Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his or her behalf in
connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he or she reasonably believed
to
be in or not opposed to the best interests of the Company and, with respect
to
any criminal action or proceeding, had no reasonable cause to believe that
his
or her conduct was unlawful.
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3. Indemnity
in Proceedings by or in the Right of the Company.
The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding by or in the right of the Company to procure
a
judgment in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all
Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with such Proceeding or any claim, issue or matter therein,
if Indemnitee acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company. No indemnification
for Expenses shall be made under this Section 3 in respect of any claim, issue
or matter as to which Indemnitee shall have been adjudged by a court of
competent jurisdiction to be liable to the Company, unless and only to the
extent that a court of competent jurisdiction 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 indemnification
for
such expenses as such court shall deem proper,
subject
to the right of Indemnitee under Section 8.
4. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
To the
extent that Indemnitee is a party to or a participant in and is successful
(on
the merits or otherwise) in defense of any Proceeding or any claim, issue or
matter therein, the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith. To the extent permitted by applicable law, if Indemnitee
is not wholly successful in such Proceeding but is successful, on the merits
or
otherwise, in defense of one or more but less than all claims, issues or matters
in such Proceeding, the Company shall indemnify Indemnitee against all Expenses
actually
and
reasonably incurred by Indemnitee
or on
Indemnitee’s behalf in connection with (a) each successfully resolved claim,
issue or matter and (b) any claim, issue or matter related to any such
successfully resolved claim, issuer or matter. For purposes of this Section,
the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to
such
claim, issue or matter.
5. Indemnification
for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his or her Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified
to the fullest extent permitted by applicable law against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
6. Additional
Indemnification.
(a) Notwithstanding
any limitation in Sections 2, 3 or 4, the Company shall indemnify Indemnitee
to
the fullest extent permitted by applicable law if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding (including
a Proceeding by or in the right of the Company to procure a judgment in its
favor) against all Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his or her behalf in
connection with the Proceeding or any claim, issue or matter
therein.
(b) For
purposes of Section 6(a), the meaning of the phrase “to
the fullest extent permitted by applicable law”
shall
include, but not be limited to:
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(i) the
fullest extent permitted by the provision of the FBS that authorize or
contemplate additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the FBS; and
(ii) the
fullest extent authorized or permitted by any amendments to or replacements
of
the FBS adopted after the date of this Agreement that increase the extent to
which a corporation may indemnify its officers and directors.
7. Exclusions.
Notwithstanding any provision in this Agreement, the
Company shall not be obligated under this Agreement to make any indemnity in
connection with any Proceeding (or any part of any Proceeding):
(a) for
which
payment has actually been made to or on behalf of Indemnitee under any statute,
insurance policy, indemnity provision, vote or otherwise, except with respect
to
any excess beyond the amount paid;
(b) for
an
accounting or disgorgement of profits (after
indemnitee is finally adjudged (without opportunity for further appeal))
pursuant
to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar
provisions of federal, state or local statutory law or common law, if Indemnitee
is held liable therefor (including pursuant to any settlement
arrangements);
(c) for
any
reimbursement of the Company by Indemnitee of any bonus or other incentive-based
or equity-based compensation or of any profits realized by Indemnitee
(after
indemnitee is finally adjudged (without opportunity for further appeal))
from
the
sale of securities of the Company, as required in each case under the Securities
Exchange Act of 1934, as amended (including any such reimbursements that arise
from an accounting restatement of the Company pursuant to Section 304 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”),
or
the payment to the Company of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act),
if Indemnitee is held liable therefor (including pursuant to any settlement
arrangements);
(d) initiated
by Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company or its directors, officers,
employees, agents or other indemnitees, unless (i) the Company’s board of
directors authorized the Proceeding (or the relevant part of the Proceeding)
prior to its initiation, (ii) the Company provides the indemnification, in
its
sole discretion, pursuant to the powers vested in the Company under applicable
law, (iii) otherwise authorized in Section 12(d) or (iv) otherwise required
by
applicable law;
or
(e) if
prohibited by applicable law.
8. Advances
of Expenses.
The
Company shall advance, to the extent not prohibited by law, the Expenses
incurred by Indemnitee in connection with any Proceeding, and such advancement
shall be made as soon as reasonably practicable, but in any event no later
than
sixty (60) days, after the receipt by the Company of a written statement or
statements requesting such advances from time to time (which shall include
invoices received by Indemnitee in connection with such Expenses but, in the
case of invoices in connection with legal services, any references to legal
work
performed or to expenditure made that would cause Indemnitee to waive any
privilege accorded by applicable law shall not be included with the invoice).
Advances shall be unsecured and interest free and made without regard to
Indemnitee’s ability to repay such advances. Indemnitee hereby undertakes to
repay any advance to the extent that it is ultimately determined that Indemnitee
is not entitled to be indemnified by the Company. This Section 8 shall not
apply
to any claim made by Indemnitee for which indemnity is excluded pursuant to
this
Agreement
(it
being understood and agreed that nothing in this sentence shall limit the right
of Indemnitee to be receive advances of expenses pursuant to and in accordance
with this Section 8.)
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9. Procedure
for Notification and Defense of Claim.
(a) Indemnitee
shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses as soon
as
reasonably practicable following the receipt by Indemnitee of written notice
thereof. The written notification to the Company shall include a description
of
the nature of the Proceeding and facts known
by
Indemnitee to be
underlying the Proceeding. The failure by Indemnitee to notify the Company
will
not relieve the Company from any liability which it may have to Indemnitee
hereunder or otherwise than under this Agreement, and any delay in so notifying
the Company shall not constitute a waiver by Indemnitee of any
rights.
(b) If,
at
the time of the receipt of a notice of a Proceeding pursuant to the terms
hereof or
otherwise,
the
Company has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of the Proceeding to the insurers
in accordance with the procedures set forth in the respective policies. The
Company shall thereafter take all reasonably necessary or desirable action
to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as
a
result of such Proceeding in accordance with the terms of such
policies.
(c) In
the
event the Company may be obligated to make any indemnity in connection with
a
Proceeding, the Company shall be entitled to assume
the defense of such Proceeding
with
counsel approved by Indemnitee, which approval shall not be unreasonably
withheld, upon the delivery to Indemnitee of written notice of its election
to
do so. After delivery of such notice, approval of such counsel by Indemnitee
and
the retention of such counsel by the Company, the Company will not be liable
to
Indemnitee for any fees or expenses of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding. Notwithstanding the Company’s
assumption of the defense of any such Proceeding, the Company shall be obligated
to pay the fees and expenses of Indemnitee’s counsel to the extent (i) the
employment of counsel by Indemnitee is authorized by the Company, (ii) counsel
for the Company or Indemnitee shall have reasonably concluded that there is
a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense such that Indemnitee should
be
separately represented, (iii) the fees and expenses are non-duplicative and
reasonably incurred in connection with Indemnitee’s role in the Proceeding
despite the Company’s assumption of the defense, (iv) the Company is not
financially or legally able to perform its indemnification obligations or (v)
the Company shall not have retained, or shall not continue to retain, such
counsel to defend such Proceeding
or
the
Company
shall not
otherwise diligently pursue such Proceeding.
Regardless of any provision in this Agreement, Indemnitee shall have the right
to employ Indemnitee’s counsel in any Proceeding at Indemnitee’s personal
expense. The Company shall not be entitled, without the consent of Indemnitee,
to assume the defense of any claim brought by or in the right of the Company.
(d) Indemnitee
shall give the Company such information and cooperation in connection with
the
Proceeding as may be reasonably appropriate.
(e) The
Company shall not be liable to indemnify Indemnitee for any settlement of any
Proceeding (or any part thereof) without the Company’s prior written consent,
which shall not be unreasonably withheld.
(f) The
Company shall have the right to settle any Proceeding (or any part thereof)
without the consent of Indemnitee
provided
that such settlement contains an absolute and unconditional release of
Indemnitee from liability and the terms thereof do not impose payment or other
obligations on Indemnitee.
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10. Procedure
upon Application for Indemnification.
(a) To
obtain
indemnification, Indemnitee shall submit to the Company a written request,
including therein or therewith such documentation and information as is
reasonably available to Indemnitee and as is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification following
the final disposition of such Proceeding. The
Company shall, as soon as reasonably practicable after receipt of such a request
for indemnification, advise the board of directors that Indemnitee has requested
indemnification.
(b) Upon
written request by Indemnitee for indemnification
pursuant to Section 10(a),
a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case (A) by a majority vote
of
the Disinterested Directors, even though less than a quorum of the Company’s
board of directors, (B) by a committee of Disinterested Directors designated
by
a majority vote of the Disinterested Directors, even though less than a quorum
of the Company’s board of directors, (C) if there are no such Disinterested
Directors or, if such Disinterested Directors so direct, by Independent Counsel
in a written opinion to the Company’s board of directors, a copy of which shall
be delivered to Indemnitee or (D) if so directed by the Company’s board of
directors, by the stockholders of the Company,
provided however, that at the request of Indemnitee, such determination shall
be
made by Independent Counsel.
If it
is so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten
(10)
days
after such determination. Indemnitee shall cooperate with the person, persons
or
entity making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys’ fees and disbursements) reasonably
incurred by Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company, to the extent permitted
by applicable law.
11. Presumptions
and Effect of Certain Proceedings.
(a) In
making
a determination with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall, to the fullest extent
not prohibited by law, presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 10(a) of this Agreement, and the Company shall,
to
the fullest extent not prohibited by law, have the burden of proof to overcome
that presumption in connection with the making by such person, persons or entity
of any determination contrary to that presumption.
(b) The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere
or its
equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of Indemnitee to indemnification or create
a presumption that Indemnitee did not act in good faith and in a manner which
he
or she reasonably believed to be in or not opposed to the best interests of
the
Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his or her conduct was unlawful.
(c) For
purposes of any determination of good faith, Indemnitee shall be deemed to
have
acted in good faith to the extent Indemnitee relied in good faith on (i) the
records or books of account of the Enterprise, including financial statements,
(ii) information supplied to Indemnitee by the officers of the Enterprise in
the
course of their duties, (iii) the advice of legal counsel for the Enterprise
or
its board of directors or counsel selected by any committee of the board of
directors (iv) information or records given or reports made to the Enterprise
by
an independent certified public accountant, an appraiser, investment banker
or
other expert selected with reasonable care by the Enterprise or its board of
directors or any committee of the board of directors. The provisions of this
Section 11(c) shall not be deemed to be exclusive or to limit in any way the
other circumstances in which Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
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(d) Neither
the knowledge, actions nor failure to act of any other director, officer, agent
or employee of the Enterprise shall be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
12. Remedies
of Indemnitee.
(a) Subject
to Section 12(e), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 8
or 12(d)
of this Agreement, (iii) no determination of entitlement to indemnification
shall have been made pursuant to Section 10 of this Agreement within
sixty
(60)
days
after receipt by the Company of the request for indemnification, (iv) payment
of
indemnification pursuant to this Agreement is not made (A) within ten
(10)
days after a determination has been made that Indemnitee is entitled to
indemnification or (B) with respect to indemnification pursuant to Sections
4, 5
and 12(d) of this Agreement, within thirty (30) days after receipt by the
Company of a written request therefor, or (v) the Company or any other person
or
entity takes or threatens to take any action to declare this Agreement void
or
unenforceable, or institutes any litigation or other action or proceeding
designed to deny, or to recover from,
Indemnitee
the benefits provided or intended to be provided to Indemnitee hereunder,
Indemnitee shall be entitled to an adjudication by a court of his or her
entitlement to such indemnification or advancement of Expenses. Alternatively,
Indemnitee, at his or her option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of
the American Arbitration Association. The
Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration in accordance with this Agreement.
(b) Neither
(i) the failure of the Company, its board of directors, any committee or
subgroup of the board of directors, Independent Counsel or stockholders to
have
made a determination that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor (ii) an actual
determination by the Company, its board of directors, any committee or subgroup
of the board of directors, Independent Counsel or stockholders that Indemnitee
has not met the applicable standard of conduct, shall be a defense to the action
or create a presumption that Indemnitee has or has not met the applicable
standard of conduct. In the event that a determination shall have been made
pursuant to Section 10 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant
to
this Section 12 shall be conducted in all respects as a de
novo
trial,
or arbitration, on the merits and Indemnitee shall not be prejudiced by reason
of that adverse determination. In any judicial proceeding or arbitration
commenced pursuant to this Section 12, the Company shall, to the fullest extent
not prohibited by law, have the burden of proving Indemnitee is not entitled
to
indemnification or advancement of Expenses, as the case may be.
(c) To
the
fullest extent not prohibited by law, the Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 12 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court or before any
such
arbitrator that the Company is bound by all the provisions of this Agreement.
If
a determination shall have been made pursuant to Section 10 of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound
by
such determination in any judicial proceeding or arbitration commenced pursuant
to this Section 12, absent (i) a misstatement by Indemnitee of a material fact,
or an omission of a material fact necessary to make Indemnitee’s statements not
materially misleading, in connection with the request for indemnification,
or
(ii) a prohibition of such indemnification under applicable law.
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(d) The
Company shall indemnify Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (as soon as reasonably practicable, but in any
event no later than sixty (60) days, after receipt by the Company of a written
request therefor) advance such Expenses to Indemnitee, that are incurred by
Indemnitee in connection with any action for indemnification or advancement
of
Expenses from the Company under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the Company, to the extent
Indemnitee is successful in such action
and to
the extent not prohibited by law.
(e) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification shall be required to be made prior to the final disposition
of the Proceeding.
13. Contribution.
To the
fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for Expenses, judgments, fines or amounts paid or to be paid in
settlement, in connection with any claim relating to an indemnifiable event
under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect (i)
the
relative benefits received by the Company and Indemnitee as a result of the
event(s) and transaction(s) giving rise to such Proceeding; and (ii) the
relative fault of Indemnitee and the Company (and its other directors, officers,
employees and agents) in connection with such event(s) and
transaction(s).
14. Non-exclusivity.
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 at any time be entitled under applicable law, the Company’s
articles of incorporation or bylaws, any agreement, a vote of stockholders
or a
resolution of directors, or otherwise. No amendment, alteration or repeal of
this Agreement shall adversely affect any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
or
her Corporate Status prior to such amendment, alteration or repeal. To the
extent that a change in Florida law, whether by statute or judicial decision,
permits greater indemnification or advancement of Expenses than would be
afforded currently under the Company’s articles of incorporation and bylaws and
this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change, subject
to the restrictions expressly set forth herein or therein. Except as expressly
set forth herein, no right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall
be cumulative and in addition to every other right and remedy given hereunder
or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the
concurrent assertion or employment of any other right or remedy.
15. No
Duplication of Payments.
The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (or for which advancement is provided
hereunder) if and to the extent that Indemnitee has otherwise actually received
payment for such amounts under any insurance policy, contract, agreement or
otherwise.
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16. Insurance.
To the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, trustees, general partners, managing members,
officers, employees, agents or fiduciaries of the Company or any other
Enterprise, Indemnitee shall be covered by such policy or policies to the same
extent as the most favorably-insured persons under such policy or policies
in a
comparable position.
17. Subrogation.
In the
event of any payment under this Agreement, the Company shall be subrogated
to
the extent of such payment to all of the rights of recovery of Indemnitee,
who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
18. Services
to the Company.
This
Agreement shall not be deemed an employment contract between the Company (or
any
of its subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically
acknowledges that any employment with the Company (or any of its subsidiaries
or
any Enterprise) is at will, and Indemnitee may be discharged at any time for
any
reason, with or without cause, with or without notice, except as may be
otherwise expressly provided in any executed, written employment contract
between Indemnitee and the Company (or any of its subsidiaries or any
Enterprise), any existing formal severance policies adopted by the Company’s
board of directors or, with respect to service as a director or officer of
the
Company, the Company’s articles of incorporation or bylaws or the
FBS.
19. Successors.
This
Agreement shall be binding upon the Company and its successors and assigns,
including any direct or indirect successor by purchase, merger, consolidation
or
otherwise to all or substantially all of the business or assets of the Company,
and shall inure to the benefit of Indemnitee and Indemnitee’s heirs, executors
and administrators. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all
or
substantially all of the business or assets of the Company, by written
agreement, expressly to 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.
20. Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law;
(b)
such provision or provisions shall be deemed reformed to the extent necessary
to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be
construed so as to give effect to the intent manifested thereby.
21. Enforcement.
The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director or officer of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as a director or
officer of the Company.
22. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof; provided,
however,
that
this Agreement is a supplement to and in furtherance of the Company’s articles
of incorporation, bylaws and applicable law.
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23. Modification
and Waiver.
No
supplement, modification or amendment to this Agreement shall be binding unless
executed in writing by the parties hereto. No waiver of any of the provisions
of
this Agreement shall constitute or be deemed a waiver of any other provision
of
this Agreement nor shall any waiver constitute a continuing waiver.
24. Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given if (a) delivered
by
hand and receipted for by the party to whom said notice or other communication
shall have been directed, (b) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed, or (c) mailed by reputable overnight courier and receipted for by the
party to whom said notice or other communication shall have been
directed:
(a) If
to
Indemnitee, at such address as indicated on the signature page of this
Agreement, or such other address as Indemnitee shall provide to the
Company.
(b) If
to the
Company to:
DigitalFX
International, Inc.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Chief Executive Officer
or
to any
other current address as may have been furnished to Indemnitee by the
Company.
25. Applicable
Law and Consent to Jurisdiction.
This
Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of Florida,
without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement,
the Company and Indemnitee hereby irrevocably and unconditionally (i) agree
that
any action or proceeding arising out of or in connection with this Agreement
shall be brought only in a court of competent jurisdiction in the State of
Florida, and not in any other state or federal court in the United States of
America or any court in any other country, (ii) consent to submit to the
exclusive jurisdiction of any court of competent jurisdiction in the State
of
Florida for purposes of any action or proceeding arising out of or in connection
with this Agreement, (iii) appoint, to the extent such party is not otherwise
subject to service of process in the State of Florida, National Registered
Agents, Inc., as its agent in the State of Florida for acceptance of legal
process in connection with any such action or proceeding against such party
with
the same legal force and validity as if served upon such party personally within
the State of Florida, (iv) waive any objection to the laying of venue of any
such action or proceeding in any court of competent jurisdiction in the State
of
Florida, and (v) waive, and agree not to plead or to make, any claim that any
such action or proceeding brought in any court of competent jurisdiction in
the
State of Florida has been brought in an improper or inconvenient
forum.
26. Counterparts.
This
Agreement may be executed in one or more counterparts (including via facsimile
or digital image format), each of which shall for all purposes be deemed to
be
an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of
this
Agreement.
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27. Captions.
The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed as of
the
day and year first above written.
| DIGITALFX INTERNATIONAL, INC. | ||
| By: |
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| Name: |
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| Title: |
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| INDEMNITEE: | ||
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By:
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Name:
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Address:
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