Exhibit 10.4
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this "Agreement"), dated as of the 24th
day of February, 2009 is made by and between Golden Elephant Glass
Technology, Inc., a Nevada corporation (the "Company"), and Fuyi
Zhao, an independent director of the Company (the
"Indemnitee").
RECITALS
A.
The Company and the Indemnitee recognize that
the present state of the law is too uncertain to provide the
Company’s officers and directors with adequate and reliable
advance knowledge or guidance with respect to the legal risks and
potential liabilities to which they may become personally exposed
as a result of performing their duties for the Company;
B.
The Company and the Indemnitee are aware of the
substantial growth in the number of lawsuits filed against
corporate officers and directors in connection with their
activities in such capacities and by reason of their status as
such;
C.
The Company and the Indemnitee recognize that
the cost of defending against such lawsuits, whether or not
meritorious, is typically beyond the financial resources of most
officers and directors of the Company;
D.
The Company and the Indemnitee recognize that
the legal risks and potential liabilities, and the threat thereof,
associated with proceedings filed against the officers and
directors of the Company bear no reasonable relationship to the
amount of compensation received by the Company’s officers and
directors;
E.
The Company, after reasonable investigation
prior to the date hereof, has determined that the liability
insurance coverage available to the Company as of the date hereof
is inadequate, unreasonably expensive or both. The Company
believes, therefore, that the interest of the Company and its
current and future stockholders would be best served by a
combination of (i) such insurance as the Company may obtain
pursuant to the Company’s obligations hereunder and (ii) a
contract with its officers and directors, including the Indemnitee,
to indemnify them to the fullest extent permitted by law (as in
effect on the date hereof, or, to the extent any amendment may
expand such permitted indemnification, as hereafter in effect)
against personal liability for actions taken in the performance of
their duties to the Company;
F.
Section 78.7502 of the Nevada Revised Statutes
empowers Nevada corporations to indemnify their officers and
directors and further states that the indemnification provided by
Section 78.7502 shall not be deemed exclusive of any other rights
to which those seeking indemnification may be entitled under the
articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in an official capacity and as to action in another capacity
while holding such office; thus, Section 78.7502 does not by itself
limit the extent to which the Company may indemnify persons serving
as its officers and directors;
G.
The Company’s Articles of Incorporation
and Bylaws authorize the indemnification of the officers and
directors of the Company in excess of that expressly permitted by
Section 78.7502;
H.
The Board of Directors of the Company has
concluded that, to retain and attract talented and experienced
individuals to serve as officers and directors of the Company and
to encourage such individuals to take the business risks necessary
for the success of the Company, it is necessary for the Company to
contractually indemnify its officers and directors, and to assume
for itself liability for expenses and damages in connection with
claims against such officers and directors in connection with their
service to the Company, and has further concluded that the failure
to provide such contractual indemnification could result in great
harm to the Company and its stockholders;
I.
The Company desires and has requested the
Indemnitee to serve or continue to serve as a director or officer
of the Company, free from undue concern for the risks and potential
liabilities associated with such services to the Company;
and
J.
The Indemnitee is willing to serve, or continue
to serve, the Company, provided, and on the expressed condition,
that the Indemnitee is furnished with the indemnification provided
for herein.
AGREEMENT
NOW, THEREFORE, the Company and
Indemnitee agree as follows:
1.
DEFINITIONS.
(a)
"EXPENSES" means, for the purposes of this
Agreement, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, any fees and
disbursements of Indemnitee’s counsel, accountants and other
experts and other out-of-pocket costs) actually and reasonably
incurred by the Indemnitee in connection with the investigation,
preparation, defense or appeal of a Proceeding; provided, however,
that Expenses shall not include judgments, fines, penalties or
amounts paid in settlement of a Proceeding.
(b)
"PROCEEDING" means, for the purposes of this
Agreement, any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or
investigative (including an action brought by or in the right of
the Company) in which Indemnitee may be or may have been involved
as a party or otherwise, by reason of the fact that Indemnitee is
or was a director or officer of the Company, by reason of any
action taken by Indemnitee or of any inaction on his or her part
while acting as such director or officer or by reason of the fact
that he or she is or was serving at the request of the Company as a
director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise,
or was a director or officer of the foreign or domestic corporation
which was a predecessor corporation to the Company or of another
enterprise at the request of such predecessor corporation, whether
or not he or she is serving in such capacity at the time any
liability or expense is incurred for which indemnification or
reimbursement can be provided under this Agreement.
2.
AGREEMENT TO SERVE. Indemnitee agrees to serve
or continue to serve as a director or officer of the Company to the
best of his or her abilities at the will of the Company or under
separate contract, if such contract exists, for so long as
Indemnitee is duly elected or appointed and qualified or until such
time as the Indemnitee tenders his or her resignation in writing.
Nothing contained in this Agreement is intended to create in
Indemnitee any right to continued employment.
3.
INDEMNIFICATION.
(a)
THIRD PARTY PROCEEDINGS. The Company shall
indemnify Indemnitee against Expenses, judgments, fines, penalties
or amounts paid in settlement (if the settlement is approved in
advance by the Company) actually and reasonably incurred by
Indemnitee in connection with a Proceeding (other than a Proceeding
by or in the right of the Company) if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in the
best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself,
create a presumption that Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in the best
interests of the Company, or, with respect to any criminal
Proceeding, had no reasonable cause to believe that Indemnitee's
conduct was unlawful.
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(b)
PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
To the fullest extent permitted by law, the Company shall indemnify
Indemnitee against Expenses and amounts paid in settlement,
actually and reasonably incurred by Indemnitee in connection with a
Proceeding by or in the right of the Company to procure a judgment
in its favor if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the best interests of the
Company and its stockholders. Notwithstanding the foregoing, no
indemnification shall be made in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged liable to
the Company in the performance of Indemnitee’s duty to the
Company and its stockholders unless and only to the extent that the
court in which such action or Proceeding is or was pending shall
determine upon application that, in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to
indemnity for Expenses and then only to the extent that the court
shall determine.
(c)
SCOPE. Notwithstanding any other provision of
this Agreement but subject to Section 14(b), the Company shall
indemnify the Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically
authorized by other provisions of this Agreement, the
Company’s Articles of Incorporation, the Company’s
Bylaws or by statute.
4.
LIMITATIONS ON INDEMNIFICATION. Any other
provision herein to the contrary notwithstanding, the Company shall
not be obligated pursuant to the terms of this
Agreement:
(a)
EXCLUDED ACTS. To indemnify Indemnitee for any
acts or omissions or transactions from which a director may not be
relieved of liability under applicable law;
(b)
EXCLUDED INDEMNIFICATION PAYMENTS. To indemnify
or advance Expenses in violation of any prohibition or limitation
on indemnification under the statutes, regulations or rules
promulgated by any state or federal regulatory agency having
jurisdiction over the Company;
(c)
CLAIMS INITIATED BY INDEMNITEE. To indemnify or
advance Expenses to Indemnitee with respect to Proceedings or
claims initiated or brought voluntarily by Indemnitee and not by
way of defense, except with respect to Proceedings brought to
establish or enforce a right to indemnification under this
Agreement or any o
