Exhibit 10.5
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made and entered into this
__ day of _______, 1999, by and between Entertainment Boulevard, Inc.
("Company"), a Nevada corporation, and the undersigned ("Indemnitee").
Whereas, the Indemnitee will serve and/or is currently serving as a
director and/or officer of the Company, and the Company wishes the Indemnitee to
continue to serve in such capacity.
Whereas, the Indemnitee is willing, under certain circumstances, to
continue serving as a director and/or officer of the Company.
Whereas, the Indemnitee has indicated that he does not regard the
indemnities available under the Company's Bylaws and the Company's directors'
and officers' liability insurance policy as adequate to protect him against the
risks associated with his service to the Company. Whereas, the Company and the
Indemnitee now agree they should enter into this Agreement in order to provide
greater protection to the Indemnitee against such risks of service to the
Company.
Whereas, the General Corporation Law of the State of Nevada, under which
Law the Company is organized, empowers corporations to indemnify a person
serving as a director, officer, employee or agent of the corporation and that
any indemnifications in said General Corporation Law
and in the Company's Bylaws are not deemed exclusive of any other rights to
which those seeking indemnification may be entitled.
Now, therefore, in order to induce the Indemnitee to continue to serve
and/or to continue to serve as a director and/or officer of the Company and in
consideration of his continued service, the Company hereby agrees to indemnify
the Indemnitee as follows:
1. INDEMNITY. The Company will indemnify the Indemnitee, his
executors, administrators or assigns, for any Expenses (as defined below)
which the Indemnitee is or becomes legally obligated to pay in connection
with any Proceeding (as defined below). As used in this Agreement, the term
"Proceeding" shall include any threatened, pending or completed claim,
action, suit or proceeding, whether brought by or in the right of the
Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which the Indemnitee may be or may have been
involved as a party or otherwise, by reason of the fact that the Indemnitee
is or was a director or officer of the Company, by reason of any actual or
alleged error or misstatement or misleading statement made or suffered by
the Indemnitee, by reason of any action taken by him or of any inaction on
his part while acting as such director or officer, or by reason of the fact
that he was serving at the request of the Company as a director, trustee,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise; provided, that in each such case the
Indemnitee acted in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the
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Company, and, in the case of a criminal proceeding, in addition had no
reasonable cause to believe that his conduct was unlawful. As used in
this Agreement, the term "other enterprise" shall include (without
limitation) employee benefit plans and administrative committees
thereof, and the term "fines" shall include (without limitation) any
excise tax assessed with respect to any employee benefit plan.
2. EXPENSES. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, judgments, fines, penalties,
settlements and costs, attorneys' fees and disbursements and costs of
attachment or similar bonds, investigations, and any expenses of
establishing a right to indemnification under this Agreement.
3. ENFORCEMENT. If a claim or request under this Agreement is not
paid by the Company, or on its behalf, within thirty days after a written
claim or request has been received by the Company, the Indemnitee may at
any time thereafter bring suit against the Company to recover the unpaid
amount of the claim or request and, if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the Expenses of prosecuting
such suit. The Company shall have the right to recoup from the Indemnitee
the amount of any item or items of Expenses theretofore paid by the Company
pursuant to this Agreement, to the extent such Expenses are not reasonable
in nature or amounts; provided, however, that the Company shall have the
burden of proving such Expenses to be unreasonable. The burden of proving
that the Indemnitee is not entitled to indemnification for any other reason
shall be upon the Company.
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4. 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 required
and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
5. EXCLUSIONS. The Company shall not be liable under this
Agreement to pay any Expenses in connection with any claim made against the
Indemnitee:
(a) to the extent that payment is actually made to the
Indemnitee under a valid, enforceable and collectible insurance
policy;
(b) to the extent that the Indemnitee is indemnified and
actually paid otherwise than pursuant to this Agreement;
(c) in connection with a judicial action by or in the right of
the Company, in respect of any claim, issue or matter as to which the
Indemnitee shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Company unless and
only to the extent that any court in which such action was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper;
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(d) if it is proved by final judgment in a court of law or other
final adjudication to have been based upon or attributable to the
Indemnitee's in fact having gained any personal profit or advantage to
which he was not legally entitled;
(e) for a disgorgement of profits made from the purchase and
sale by the Indemnitee of securities pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended, and amendments thereto or
similar provisions of any state statutory law or common law;
(f) brought about or contributed to by the dishonesty of the
Indemnitee seeking payment hereunder; however, notwithstanding the
foregoing, the Indemnitee shall be protected under this Agreement as
to any claims upon which suit may be brought against him by reason of
any alleged dishonesty on his part, unless a judgment or other final
adjudication thereof adverse to the Indemnitee shall establish that he
committed (i) acts of active and deliberate dishonesty, (ii) with
actual dishonest purpose and intent, (iii) which acts were material to
the cause of action so adjudicated; or
(g) for any judgment, fine or penalty which the Company is
prohibited by applicable law from paying as indemnity or for any other
reason.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provision of this Agreement, to the extent that
the Indemnitee has been successful on the merits or otherwise in defense of
any Proceeding or in defense of any claim, issue or matter therein,
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including dismissal without prejudice, Indemnitee shall be indemnified
against any and all Expenses incurred in connection therewith.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some
or a portion of Expenses, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the portion of
such Expenses to which the Indemnitee is entitled.
8. ADVANCE OF EXPENSES. Expenses incurred by the Indemnitee in
connection with any Proceeding, except the amount of any settlement, shall
be paid by the Company in advance upon request of the Indemnitee that the
Company pay such Expenses. The Indemnitee hereby undertakes to repay to the
Company the amount of any Expenses theretofore paid by the Company to the
extent that it is ultimately determined that such Expenses were not
reasonable or that the Indemnitee is not entitled to indemnification.
9. APPROVAL OF EXPENSES. No Expenses for which indemnity shall be
sought under this Agreement, other than those in respect of judgments and
verdicts actually rendered, shall be incurred without the prior consent of
the Company, which consent shall not be unreasonably withheld.
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10. NOTICE OF CLAIM. The Indemnitee, as a condition precedent to
his right to be indemnified under this Agreement, shall give to the Company
notice in writing as soon as practicable of any claim made against him for
which indemnity will or could be sought under this Agreement. Notice to the
Company shall be given at its principal office and shall be directed to the
Corporate Secretary (or such other address as the Company shall designate
in writing to the Indemnitee); notice shall be deemed received if sent by
prepaid mail properly addressed, the date of such notice being the date
postmarked. In addition, the Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be
within the Indemnitee's power.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
12. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. Nothing herein shall
be deemed to diminish or otherwise restrict the Indemnitee's right to
indemnification under any provision of the Certificate of Incorporation or
Bylaws of the Company and amendments thereto or under law.
13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with Nevada law.
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14. SAVING CLAUSE. Wherever there is conflict between any provision
of this Agreement and any applicable present or future statute, law or
regulation contrary to which the Company and the Indemnitee have no legal
right to contract, the latter shall prevail, but in such event the affected
provisions of this Agreement shall be curtailed and restricted only to the
extent necessary to bring them within applicable legal requirements.
15. COVERAGE. The provisions of this Agreement shall apply with
respect to the Indemnitee's service as a Director of the Company prior to
the date of this Agreement and with respect to all periods of such service
after the date of this Agreement, even though the Indemnitee may have
ceased to be a Director of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
"COMPANY" ENTERTAINMENT BOULEVARD, INC.
By
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Xxxxxxx Xxxxx
Chief Executive Officer
"INDEMNITEE" NAME
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Signature
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