ULURU Inc. INDEMNIFICATION AGREEMENT
EXHIBIT
10.1
THIS
INDEMNIFICATION AGREEMENT (the “Agreement”) is made
and entered into as of July 13, 2009 between ULURU Inc., a Nevada corporation
(the “Company”), and
___________ (“Indemnitee”).
WITNESSETH
THAT:
WHEREAS,
highly competent persons have become more reluctant to serve corporations as
directors and officers or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the corporation;
WHEREAS,
the Board of Directors of the Company (the “Board”) has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. Although the furnishing of such insurance
has been a customary and widespread practice among United States-based
corporations and other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be available to it in
the future only at higher premiums and with more exclusions. At the
same time, directors, officers, and other persons in service to corporations or
business enterprises are being increasingly subjected to expensive and
time-consuming litigation relating to, among other things, matters that
traditionally would have been brought only against the Company or business
enterprise itself. The By-laws of the Company require indemnification
of the directors, officers, employees, fiduciaries and agents of the
Company. Indemnitee may also be entitled to indemnification pursuant
to Chapter 78 - Private Corporations, of the Nevada Revised Statutes (the “NRS”). The
NRS expressly provides that the indemnification provisions set forth therein are
not exclusive, and thereby contemplate that contracts may be entered into
between the Company and members of the Board with respect to
indemnification;
WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons;
WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company's
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future;
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
to the fullest extent permitted by applicable law so that they will serve or
continue to serve the Company free from undue concern that they will not be so
indemnified;
WHEREAS,
this Agreement is a supplement to and in furtherance of any indemnification
provisions in the Articles of Incorporation and/or the By-laws of the Company
and any resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefore, nor to diminish or abrogate any rights of Indemnitee
thereunder;
WHEREAS,
Indemnitee does not regard the protection available under the NRS, the Company's
By-laws and insurance as adequate in the present circumstances, and may not be
willing to serve as an officer or a director without adequate protection, and
the Company desires Indemnitee to serve in such capacity. Indemnitee
is willing to serve, continue to serve and to take on additional services for or
on behalf of the Company on the condition that he be so indemnified;
and
NOW,
THEREFORE, in consideration of Indemnitee’s agreement to serve as a director
from and after the date hereof, the parties hereto agree as
follows:
1. Indemnity of
Indemnitee. The Company hereby agrees to hold harmless and
indemnify Indemnitee to the fullest extent permitted by law, as such may be
amended from time to time. In furtherance of the foregoing
indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than
Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section l(a) if, by
reason of his Corporate Status (as hereinafter defined), Indemnitee is, or is
threatened to be made, a party to or participant in any Proceeding (as
hereinafter defined) other than a Proceeding by or in the right of the
Company. Pursuant to this Section 1(a), the
Company shall indemnify Indemnitee against all Expenses (as hereinafter
defined), judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him, or on his behalf, in connection with such
Proceeding or any claim, issue or matter therein, if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and with respect to any criminal
Proceeding, had no reasonable cause to believe Indemnitee’s conduct was
unlawful.
(b) Proceedings by or in the
Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 1(b) if, by
reason of his Corporate Status, the Indemnitee is, or is threatened to be made,
a party to or participant in any Proceeding brought by or in the right of the
Company. Pursuant to this Section 1(b), the
Company shall indemnify Indemnitee against all Expenses and amounts paid in
settlement actually and reasonably incurred by Indemnitee, or on Indemnitee’s
behalf, in connection with such Proceeding or any claim, issue or matters
therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company; provided, however, if
applicable law so provides, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the Company unless and to
the extent that a court of competent jurisdiction shall determine that such
indemnification may be made.
(c) Indemnification under NRS
78.138. Indemnitee shall be entitled to the rights of
indemnification provided under Section 1(a) and Section 1(b) if Indemnitee is
not liable pursuant to NRS 78.138.
(d) Indemnification for Expenses
of a Party Who is Wholly or Partly Successful. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, the Company shall indemnify Indemnitee to the
maximum extent permitted by law, as such may be amended from time to time,
against all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to 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
him or on his behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Section and without limitation, 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.
Additional
Indemnity. In addition to, and without regard to any
limitations on, the indemnification provided for in Section 1 of this
Agreement, the Company shall and hereby does indemnify and hold harmless
Indemnitee, to the fullest extent permitted by law, as may be amended from time
to time, against all Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf if, by
reason of his Corporate Status, he is, or is threatened to be made, a party to
or participant in any Proceeding (including a Proceeding by or in the right of
the Company), including, without limitation, all liability arising out of the
negligence or active or passive wrongdoing of Indemnitee. The only
limitation that shall exist upon the Company’s obligations pursuant to this
Agreement shall be that the Company shall not be obligated to make any payment
to Indemnitee that is finally determined (under the procedures, and subject to
the presumptions, set forth in Sections 6 and 7 hereof) to be
unlawful.
2. Contribution.
(a) Whether or not the indemnification
provided in Sections
1 and 2
hereof is available, in respect of any threatened, pending or completed action,
suit or proceeding in which the Company is jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), the Company shall pay
the entire amount of any judgment or settlement of such action, suit or
proceeding without requiring Indemnitee to contribute to such payment and the
Company hereby waives and relinquishes any right of contribution it may have
against Indemnitee. The Company shall not enter into any settlement
of any action, suit or proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding) unless
such settlement provides for a full and final release of all claims asserted
against Indemnitee.
(b) Without diminishing or impairing the
obligations of the Company set forth in the preceding subparagraph, if, for any
reason, Indemnitee shall elect or be required to pay all or any portion of any
judgment or settlement in any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee (or would be
if joined in such action, suit or proceeding), the Company shall contribute to
the amount of Expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company and all officers, directors or
employees of the Company, other than Indemnitee, who are jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, from the transaction from which
such action, suit or proceeding arose; provided, however, that the
proportion determined on the basis of relative benefit may, to the extent
necessary to conform to law, be further adjusted by reference to the relative
fault of the Company and all officers, directors or employees of the Company
other than Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand, in connection with the events that resulted in such expenses,
judgments, fines or settlement amounts, as well as any other equitable
considerations which applicable law may require to be considered. The
relative fault of the Company and all officers, directors or employees of the
Company, other than Indemnitee, who are jointly liable with Indemnitee (or would
be if joined in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, shall be determined by reference to, among other
things, the degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability is primary or
secondary and the degree to which their conduct is active or
passive.
(c) The Company hereby agrees to fully
indemnify and hold Indemnitee harmless from any claims of contribution which may
be brought by officers, directors or employees of the Company, other than
Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, 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/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
3. Indemnification for Expenses
of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a witness, or is made (or asked) to respond to discovery requests, in any
Proceeding to which Indemnitee is not a party, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.
4. Advancement of
Expenses. Notwithstanding any other provision of this
Agreement, the Company shall advance all Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate
Status within thirty (30) days after the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee and, if required by law at the time of such
advance, shall include or be preceded or accompanied by a written undertaking by
or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately
be determined by a court of competent jurisdiction that Indemnitee is not
entitled to be indemnified against such Expenses. Any advances and
undertakings to repay pursuant to this Section 5 shall be
unsecured and interest free. In furtherance of the foregoing the
Indemnitee hereby undertakes to repay such amounts advanced only if, and to the
extent that, it shall ultimately be determined by a court of competent
jurisdiction that the Indemnitee is not entitled to be indemnified by the
Company as authorized by this Agreement.
5. Procedures and Presumptions
for Determination of Entitlement to Indemnification. It is the
intent of this Agreement to secure for Indemnitee rights of indemnity that are
as favorable as may be permitted under the NRS and public policy of the State of
Nevada. Accordingly, the parties agree that the following procedures
and presumptions shall apply in the event of any question as to whether
Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification. The Secretary
of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested
indemnification. Notwithstanding the foregoing, any failure of
Indemnitee to provide such a request to the Company, or to provide such a
request in a timely fashion, shall not relieve the Company of any liability that
it may have to Indemnitee unless, and to the extent that, the Company is
actually and materially prejudiced as a direct result of such
failure.
(b) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 6(a) hereof,
a determination with respect to Indemnitee’s entitlement thereto shall be made
in the specific case by one of the following three methods, which shall be at
the election of the Board: (i) by a majority vote of a quorum
consisting of Disinterested Directors (as hereinafter defined), (ii) if a
majority vote of a quorum consisting of Disinterested Directors so orders, or if
a quorum of Disinterested Directors cannot be obtained, by Independent Counsel
(as hereinafter defined) in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee, or (iii) by the stockholders of the
Company.
(c) Notwithstanding anything to the
contrary set forth in this Agreement, if a request for indemnification is made
after a Change in Control, at the election of Indemnitee made in writing to the
Company, any determination required to be made pursuant to Section 6(b)
above as to whether Indemnitee is entitled to indemnification shall be made by
Independent Counsel selected as provided in this Section 6(c).
The Independent Counsel shall be selected by Indemnitee, unless Indemnitee shall
request that such selection be made by the Board. The party making the selection
shall give written notice to the other party advising it of the identity of the
Independent Counsel so selected. The party receiving such notice may, within
seven (7) days after such written notice of selection shall have been given,
deliver to the other party a written objection to such selection. Such objection
may be asserted only on the ground that the Independent Counsel so selected does
not meet the requirements of “Independent Counsel”
as defined in Section 13
hereof, and the objection shall set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the person
so selected shall act as Independent Counsel. If a written objection
is made, the Independent Counsel so selected may not serve as Independent
Counsel unless and until a court has determined that such objection is without
merit. If, within twenty (20) days after submission by Indemnitee of
a written request for indemnification pursuant to Section 6(a) hereof,
no Independent Counsel shall have been selected (or, if selected, such selection
shall have been objected to) in accordance with this paragraph, then either the
Company or Indemnitee may petition the courts of the State of Nevada or other
court of competent jurisdiction for resolution of any objection which shall have
been made by the Company or Indemnitee to the other’s selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the court or by such other person as the court shall designate, and the
person with respect to whom an objection is favorably resolved or the person so
appointed shall act as Independent Counsel under Section 6(c)
hereof. The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b)
hereof. The Company shall pay any and all reasonable and necessary
fees and expenses incident to the procedures of this Section 6(c),
regardless of the manner in which such Independent Counsel was selected or
appointed.
(d) If the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof,
the Independent Counsel shall be selected as provided in this Section
6(d). The Independent Counsel shall be selected by the
Board. Indemnitee may, within ten (10) days after such written notice
of selection shall have been given, deliver to the Company a written objection
to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel”
as defined in Section
13 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected shall act as Independent
Counsel. If a written objection is made and substantiated, the
Independent Counsel selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that such objection
is without merit. If, within twenty (20) days after submission by
Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof,
no Independent Counsel shall have been selected (or, if selected, such selection
shall have been objected to) in accordance with this paragraph, then either the
Company or Indemnitee may petition the appropriate courts of the State of Nevada
or other court of competent jurisdiction for resolution of any objection which
shall have been made by Indemnitee to the Company’s selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the court or by such other person as the court shall designate, and the
person with respect to whom an objection is favorably resolved or the person so
appointed shall act as Independent Counsel under Section 6(b)
hereof. The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b) hereof,
and the Company shall pay any and all reasonable fees and expenses incident to
the procedures of this Section 6(d),
regardless of the manner in which such Independent Counsel was selected or
appointed.
(e) In making a determination with respect
to entitlement to indemnification hereunder, the person or persons or entity
making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion by clear
and convincing evidence. Neither the failure of the Company
(including by its directors or independent legal counsel) to have made a
determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has met
the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or independent legal counsel) that Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has not met the applicable standard of
conduct.
(f) Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is based on the records or books of
account of the Enterprise (as hereinafter defined), including financial
statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for
the Enterprise or on information or records given or reports made to the
Enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Enterprise. In
addition, the knowledge and/or actions, or failure to act, of any director,
officer, agent or employee of the Enterprise shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this
Agreement. Whether or not the foregoing provisions of this Section 6(f) are
satisfied, it shall in any event be presumed that Indemnitee has at all times
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. Anyone seeking to
overcome this presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.
(g) Notwithstanding anything to the
contrary set forth in this Agreement, if the person, persons or entity empowered
or selected under Section 6 to
determine whether Indemnitee is entitled to indemnification shall not have been
appointed or shall not have made a determination within sixty (60) days after
receipt by the Company of the request therefore, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, unless the Company establishes by
written opinion of Independent Counsel that (i) a misstatement by Indemnitee of
a material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however,
that such 60-day period may be extended for a reasonable time, not to exceed an
additional thirty (30) days, if the person, persons or entity making such
determination with respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate documentation and/or
information relating thereto; and provided, further,
that the foregoing provisions of this Section 6(g) shall
not apply if the determination of entitlement to indemnification is to be made
by the stockholders pursuant to Section 6(b) of this
Agreement and if (A) within fifteen (15) days after receipt by the Company of
the request for such determination, the Disinterested Directors resolve as
required by Section 6(b)(iii) of this Agreement to submit such determination to
the stockholders for their consideration at an annual meeting thereof to be held
within seventy-five (75) days after such receipt and such determination is made
thereat, or (B) a special meeting of stockholders is called within fifteen (15)
days after such receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after having been so
called and such determination is made thereat.
(h) 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 Independent Counsel or member of the Board or
stockholder of the Company shall act reasonably and in good faith in making a
determination regarding Indemnitee’s entitlement to indemnification under this
Agreement. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee’s entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(i) The Company acknowledges that a
settlement or other disposition, including a conviction or a plea of nolo
contendere, short of final judgment may be successful if it permits a party to
avoid expense, delay, distraction, disruption and uncertainty. In the
event that any action, claim or proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against Indemnitee
(including, without limitation, settlement of such action, claim or proceeding
with or without payment of money or other consideration) it shall be presumed
that Indemnitee has been successful on the merits or otherwise in such action,
suit or proceeding, and it shall not create a presumption that the Indemnitee
did not act in good faith and in a manner reasonably believed to be in or not
opposed to the best interest of the Company or that, with respect to any
criminal Proceeding, the Indemnitee had reasonable cause to believe that his
conduct unlawful. Anyone seeking to overcome this presumption shall
have the burden of proof and the burden of persuasion by clear and convincing
evidence.
(j) 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 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
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 conduct was unlawful.
6. Remedies of
Indemnitee.
(a) In the event that (i) a determination
is made pursuant to Section 6 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this
Agreement, (iii) no determination of entitlement to indemnification is made
pursuant to Section
6(b) or Section
6(c) of this Agreement within sixty (60) days after receipt by the
Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to this Agreement within ten (10) days after receipt by the
Company of a written request therefor or (v) payment of indemnification is not
made within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification or such determination is deemed to have been made
pursuant to Section
6 of this Agreement, Indemnitee shall be entitled to an adjudication of
Indemnitee’s entitlement to such indemnification or advancement of expenses
either, at the Indemnitee’s sole option, in (1) an appropriate court of the
State of Nevada, or any other court of competent jurisdiction, or (2) an
arbitration to be conducted by a single arbitrator, selected by mutual agreement
of the Company and Indemnitee, pursuant to the rules of the American Arbitration
Association. The Company shall not oppose Indemnitee’s right to seek any such
adjudication.
(b) In the event that a determination shall
have been made pursuant to Section 6(b) or Section 6(c) of this
Agreement that Indemnitee is not entitled to indemnification, (i) any judicial
proceeding or arbitration commenced pursuant to this Section 7 shall be
conducted in all respects de novo on the merits, and Indemnitee shall not be
prejudiced by reason of the adverse determination under Section 6(b) or Section 6(c); and
(ii) in any such judicial proceeding or arbitration, the Company shall have the
burden of proving that Indemnitee is not entitled to indemnification under this
Agreement.
(c) If a determination shall have been made
pursuant to Section
6(b) or Section
6(c), or shall have been deemed to have been made pursuant to Section 6(g), of this
Agreement that Indemnitee is entitled to indemnification, the Company shall be
obligated to pay the amounts constituting such indemnification within five (5)
days after such determination has been made or has been deemed to have been made
and shall be conclusively bound by such determination in any judicial proceeding
commenced pursuant to this Section 7, unless the
Company establishes by written opinion of Independent Counsel that (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s misstatement not materially misleading in
connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law.
(d) In the event that Indemnitee, pursuant
to this Section
7, seeks a judicial adjudication of, or an award in arbitration to
enforce, his rights under, or to recover damages for breach of, this Agreement,
or to recover under any directors’ and officers’ liability insurance policies
maintained by the Company, the Company shall pay to him or on his behalf, in
advance, and shall indemnify him against, any and all expenses (of the types
described in the definition of Expenses in Section 13 of this
Agreement) actually and reasonably incurred by him in such judicial adjudication
or arbitration, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of expenses or insurance
recovery.
(e) The Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 7 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. The Company shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within ten (10) days after
receipt by the Company of a written request therefore) advance, to the extent
not prohibited by law, such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any action brought by Indemnitee for
indemnification or advance of Expenses from the Company under this Agreement or
under any directors' and officers' liability insurance policies maintained by
the Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of Expenses or insurance recovery,
as the case may be.
7. Non-Exclusivity; Survival of
Rights; Insurance; Subrogation.
(a) The rights of indemnification and
advancement of expenses as provided by this Agreement shall not be deemed
exclusive of, and shall be in addition to, any other rights to which Indemnitee
may at any time be entitled under applicable law, the Articles of Incorporation
or By-laws of the Company, any agreement, a vote of stockholders, a resolution
of directors or otherwise, and nothing in this Agreement shall diminish or
otherwise restrict Indemnitee’s rights to indemnification or advancement of
expenses under the foregoing. No amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in the NRS, whether by statute or
judicial decision, permits greater indemnification than would be afforded
currently under the Company’s Articles of Incorporation, By-laws 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 and Indemnitee
shall be deemed to have such greater benefits hereunder. 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. The Company shall not adopt
any amendments to its Articles of Incorporation or By-laws, the effect of which
would be to deny, diminish or encumber Indemnitee’s right to indemnification or
advancement of expenses under this Agreement, any other agreement or
otherwise.
(b) To the extent that the Company
maintains an insurance policy or policies providing liability insurance for
directors, officers, employees, or agents or fiduciaries of the Company or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise that such person serves at the request of the Company,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any director,
officer, employee, agent or fiduciary under such policy or
policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all
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 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 (with all of Indemnitee’s reasonable expenses, including, without
limitation, attorneys’ fees and charges, related thereto to be reimbursed by or,
at the option of Indemnitee, advanced by the Company).
(d) The Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or
otherwise.
(e) The Company's obligation to indemnify
or advance Expenses hereunder to Indemnitee who is or was serving at the request
of the Company as a director, officer, employee or agent of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise.
8. Exception to Right of
Indemnification. Notwithstanding any provision in this Agreement, the
Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been
made to or on behalf of Indemnitee under any insurance policy or other indemnity
provision, except with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provision; or
(b) for an accounting of profits made from
the purchase and sale (or sale and purchase) by Indemnitee of securities of the
Company within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or
similar provisions of state statutory law or common law; or
(c) in connection with any Proceeding (or
any part of any Proceeding) initiated by Indemnitee, including any Proceeding
(or any part of any Proceeding) initiated by Indemnitee against the Company or
its directors, officers, employees or other indemnitees, unless (i) the Board of
the Company authorized the Proceeding (or any part of any Proceeding) prior to
its initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable
law.
9. Retroactive Effect; Duration
of Agreement; Successors and Binding Agreement. All agreements
and obligations of the Company contained herein shall be deemed to have become
effective upon the date Indemnitee first became an officer or director of the
Company; shall continue during the period Indemnitee is an officer or a director
of the Company (or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise); and shall continue thereafter so long as
Indemnitee may be subject to any Proceeding (or any proceeding commenced under
Section 7
hereof) by reason of his Corporate Status, whether or not he is acting or
serving in any such capacity at the time any liability or expense is incurred
for which indemnification can be provided under this Agreement. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation, reorganization or
otherwise to all or substantially all of the business or assets of the Company),
assigns, spouses, heirs, executors and personal and legal
representatives. The Company shall require any such successor to all
or substantially all of the business or assets of the Company, by agreement in
form and substance satisfactory to Indemnitee and his counsel, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent the Company would be required to perform if no such succession had taken
place. Except as otherwise set forth in this Section 10, this
Agreement shall not be assignable or delegable by the Company.
10. Security. To
the extent requested by Indemnitee and approved by the Board of the Company, the
Company may at any time and from time to time provide security to Indemnitee for
the Company’s obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided to
Indemnitee, may not be revoked or released without the prior written consent of
the Indemnitee.
11. Enforcement.
(a) The Company expressly confirms and
agrees that it has entered into this Agreement and assumes the obligations
imposed on it hereby in order to induce Indemnitee to serve, or continue to
serve, as an officer or a director of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as an officer or a
director of the Company.
(b) 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.
12. Definitions. For
purposes of this Agreement:
(a) “Change in Control”
means the occurrence of any one of the following events:
(i) any
“person” (as such term is defined in Section 3(a)(9) of the Exchange
Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act)
is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
35% or more of the combined voting power of the Company’s then outstanding
securities eligible to vote for the election of the Board (the “Company Voting
Securities”); provided, however, that the
event described in this paragraph (i) shall not be deemed to be a Change in
Control by virtue of any of the following acquisitions: (A) by the
Company or any subsidiary; (B) by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any subsidiary; (C) by any
underwriter temporarily holding securities pursuant to an offering of such
securities; (D) pursuant to a Non-Control Transaction (as defined in
paragraph (iii) below); or (E) a transaction (other than one described in
paragraph (iii) below) in which Company Voting Securities are acquired from the
Company, if a majority of the Incumbent Board (as defined in paragraph (ii)
below) approves a resolution providing expressly that the acquisition pursuant
to this clause (E) does not constitute a Change in Control under this paragraph
(i);
(ii) individuals
who, on June 17, 2009, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to June 17, 2009, whose election or
nomination for election was approved by a vote of at least two-thirds of the
directors comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director, without objection to such nomination) shall be
considered a member of the Incumbent Board; provided, however, that no
individual initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect to directors or
any other actual or threatened solicitation of proxies or consents by or on
behalf of any person other than the Board shall be deemed to be a member of the
Incumbent Board;
(iii) the
consummation of a merger, consolidation, share exchange or similar form of
corporate transaction involving the Company or any of its subsidiaries that
requires the approval of the Company’s stockholders (whether for such
transaction or the issuance of securities in the transaction or otherwise) (a
“Reorganization”),
unless immediately following such Reorganization: (A) more than 60%
of the total voting power of (x) the corporation resulting from such
Reorganization (the “Surviving Company”),
or (y) if applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of 95% of the voting securities eligible to
elect directors of the Surviving Company (the “Parent Company”), is
represented by Company Voting Securities that were outstanding immediately prior
to such Reorganization (or, if applicable, is represented by shares into which
such Company Voting Securities were converted pursuant to such Reorganization),
and such voting power among the holders thereof is in substantially the same
proportion as the voting power of such Company Voting Securities among holders
thereof immediately prior to the Reorganization; (B) no person (other than
any employee benefit plan (or related trust) sponsored or maintained by the
Surviving Company or the Parent Company) is or becomes the beneficial owner,
directly or indirectly, of 20% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the Parent Company
(or, if there is no Parent Company, the Surviving Company); and (C) at
least a majority of the members of the board of directors of the Parent Company
(or, if there is no Parent Company, the Surviving Company) following the
consummation of the Reorganization were members of the Incumbent Board at the
time of the Board’s approval of the execution of the initial agreement providing
for such Reorganization (any Reorganization which satisfies all of the criteria
specified in (A), (B) and (C) above shall be deemed to be a “Non-Control
Transaction”);
(iv) the
stockholders of the Company approve a plan of complete liquidation or
dissolution; or
(v) the
consummation of a sale (or series of sales) of all or substantially all of the
assets of the Company and its subsidiaries to an entity that is not an affiliate
of the Company.
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any person acquires beneficial ownership of 35% or more of the Company Voting
Securities as a result of the acquisition of Company Voting Securities by the
Company which reduces the number of Company Voting Securities outstanding;
provided, that, if after such acquisition by the Company such person becomes the
beneficial owner of additional Company Voting Securities that increases the
percentage of outstanding Company Voting Securities beneficially owned by such
person, a Change in Control shall then occur.
(b) “Corporate Status”
describes the status of a person who is or was a director, officer, employee,
agent or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise that such person
is or was serving at the request of the Company.
(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) “Enterprise” shall
mean the Company and any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise that Indemnitee is or was serving at
the express written request of the Company as a director, officer, employee,
agent or fiduciary.
(e) “Expenses” shall
include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees 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 or
actually incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating, or being or preparing to be a
witness in a Proceeding, or responding to, or objecting to, a request to provide
discovery in a Proceeding. Expenses also shall include Expenses
incurred in connection with any appeal resulting from any Proceeding, and any
federal, state, local or foreign taxes imposed on the Indemnitee as a result of
the actual or deemed receipt of any payments under this Agreement, including,
without limitation, the premium, security for, and other costs relating to any
cost bond, supersede as bond, or other appeal bond or its
equivalent. Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.
(f) “Independent Counsel”
means a law firm, or a member of a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past five (5) years has
been, retained to represent: (i) the Company or Indemnitee in any
matter material to either such party (other than with respect to matters
concerning Indemnitee under this Agreement, or of 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. The
Company agrees to pay the reasonable fees of the Independent Counsel referred to
above and to fully indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(g) “Proceeding” includes
any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought by or in
the right of the Company or otherwise and whether civil, criminal,
administrative or investigative, in which Indemnitee was, is or will be involved
as a party or otherwise, by reason of the fact that Indemnitee is or was an
officer or a director of the Company, by reason of any action taken by him or of
any inaction on his part while acting as an officer or a director of the
Company, or by reason of the fact that he is or was serving at the request of
the Company as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other Enterprise; in each case
whether or not he is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification can be provided under
this Agreement; including one pending on or before the date of this Agreement,
but excluding one initiated by an Indemnitee pursuant to Section 7 of this
Agreement to enforce his rights under this Agreement.
13. Severability. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision. Without
limiting the generality of the foregoing, this Agreement is intended to confer
upon Indemnitee indemnification rights to the fullest extent permitted by
applicable laws. In the event any provision hereof conflicts with any
applicable law, such provision shall be deemed modified, consistent with the
aforementioned intent, to the extent necessary to resolve such
conflict.
14. Modification and
Waiver. No supplement, modification, termination 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 provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
15. Notice By
Indemnitee. Indemnitee agrees promptly to notify the Company
in writing upon being served with or otherwise receiving any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification covered
hereunder. The failure to so notify the Company shall not relieve the
Company of any obligation which it may have to Indemnitee under this Agreement
unless, and only to the extent that, the Company is actually and materially
prejudiced as a direct result of such delay or failure.
16. Notices. All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, and if not so confirmed, then on the next business day, (c) five (5)
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be
sent:
(a) To Indemnitee at the address set forth
below Indemnitee’s signature hereto.
(b) To the Company at:
0000
Xxxxxxx Xxxxx
|
Xxxxxxx,
Xxxxx 00000
Attention:
Chief Financial Officer
|
or to
such other address as may have been furnished to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.
17. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement. Executed counterparts may be delivered by facsimile and
shall be deemed an original, but all of such counterparts together
shall constitute one and the same instrument.
18. Headings. 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.
19. Successors and
Assigns. The terms of this Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors,
administrators and other legal representatives.
20. Governing 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 Nevada, without regard to its conflict of laws rules. The
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement (other
than an arbitration pursuant to Section 7 hereof)
shall be brought only in the appropriate court of the State of Nevada (the
“Nevada
Court”), 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 the Nevada Court for purposes of such action or
proceeding, (iii) waive any objection to the laying of venue of any such action
or proceeding in the Nevada Court, and (iv) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought in the Nevada Court
has been brought in an improper or inconvenient forum.
SIGNATURE
PAGE TO FOLLOW
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
By:
Name:
Title:
INDEMNITEE
______________________________________
[Name]
Address:
______________________________________
______________________________________
______________________________________
______________________________________