EXHIBIT A
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("Agreement") is made as of _Sept 2_,
2005,
by and between IPEX, Inc., a Nevada
corporation (the "Company"), and Edward
Sullivan ("Indemnitee"), a director and/or
officer or key executive, employee or
consultant of the Company, or a person
serving at the request of the Company as
a director, officer, employee or agent of
another enterprise.
RECITALS
WHEREAS,
the Indemnitee has served as a director of the Company and in
such capacity has rendered valuable
services to the Company;
WHEREAS,
effective Sept 3rd, 2005, the Indemnitee resigned as a director
of the Company;
WHEREAS, the
Company's Articles of Incorporation provide that no director
or officer of the Company shall be
personally liable to the Company or any of
its stockholders for damages for breach of
fiduciary duty as a director or
officer involving any act or omission of
any such director or officer, except
for (i) acts or omissions which involve
intentional misconduct, fraud or a
knowing violation of the law, or (ii) the
payment of dividends in violation of
Section 78.300 of the Nevada Revised
Statutes;
WHEREAS, the
Company's Bylaws require the Company to indemnify its
directors and officers against all costs,
charges and expenses actually and
reasonably incurred by them including an
amount paid to settle an action or
satisfy a judgment inactive criminal or
administrative action or proceeding to
which they are made a party by reason of
being or having been a director or
officer of the Company, including an action
brought by the Company;
WHEREAS,
the Company has Directors & Officers and Company Securities
Liability insurance coverage (Policy No.:
35530DO205) with Gotham Insurance
Company, which insurance coverage was
effective beginning April 8, 2005 and
expires April 8, 2006 (the "Policy
Period");
WHEREAS,
the Company has investigated the availability and sufficiency
of
liability insurance and applicable existing
contractual and statutory
indemnification provisions to provide its
directors and officers with adequate
protection against various legal risks and
potential liabilities to which such
individuals are subject due to their
positions with the Company and has
concluded that such insurance and the
existing contractual and statutory
provisions may provide inadequate and
unacceptable protection to certain
individuals who have served as its
directors and/or officers; and
WHEREAS,
the Board of Directors has determined, after due consideration
and investigation of the terms and
provisions of this Agreement and the various
other options available to the Company and
the Indemnitee in lieu hereof, that
this Agreement is not only reasonable and
prudent but necessary to promote and
ensure the best interests of the Company
and its stockholders.
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EXHIBIT A
NOW,
THEREFORE, in consideration of the services of the Indemnitee,
the
Company and the Indemnitee do hereby agree
as follows:
1.
Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending
or
completed inquiry, hearing, investigation,
action, suit, arbitration or other
alternative dispute resolution mechanism or
proceeding, formal or informal,
whether brought in the name of the Company
or otherwise and whether of a civil,
criminal or administrative or investigative
nature, by reason of the fact that
the Indemnitee is or was a director and/or
officer of the Company, or is or was
serving at the request of the Company as a
director, officer, employee or agent
of another enterprise, 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 is to be provided under this
Agreement.
(b) The term "Expenses" includes, without limitation:
attorneys'
fees, costs, disbursements and retainers;
accounting and witness fees; fees of
experts; travel and deposition costs;
transcript costs, filing fees, telephone
charges, postage, copying costs, delivery
service fees and other expenses and
obligations of any nature whatsoever paid
or incurred in connection with any
investigations, judicial or administrative
proceedings and appeals, amounts paid
in settlement by or on behalf of
Indemnitee, and any expenses of establishing a
right to indemnification, pursuant to this
Agreement or otherwise, including
reasonable compensation for time spent by
the Indemnitee in connection with the
investigation, defense or appeal of a
Proceeding or action for indemnification
for which he or she is not otherwise
compensated by the Company or any third
party. The term "Expenses" does not include
the amount of judgments, fines,
penalties or ERISA excise taxes actually
levied against the Indemnitee.
2.
Indemnification in Third Party Actions. To the extent not covered
by
D&O Insurance (defined below),
including by reason of the fact that the
Proceeding due to which a claim is made
under this Agreement involves facts that
occurred prior to the Policy Period, the
Company shall indemnify the Indemnitee
if the Indemnitee is a party to or
threatened to be made a party to or is
otherwise involved in any Proceeding (other
than a Proceeding by or in the name
of the Company to procure a judgment in its
favor), by reason of the fact that
the Indemnitee is or was a director and/or
officer of the Company, or is or was
serving at the request of the Company as a
director, officer, employee or agent
of another enterprise, against all
Expenses, judgments, fines, penalties and
ERISA excise taxes actually and reasonably
incurred by the Indemnitee in
connection with the defense or settlement
of such a Proceeding, to the fullest
extent permitted by applicable corporate
law and the Company's Articles of
Incorporation; provided that any settlement
of a Proceeding be approved in
writing by the Company.
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EXHIBIT A
3.
Indemnification in Proceedings by or In the Name of the Company. To
the
extent not covered by D&O Insurance,
including by reason of the fact that the
Proceeding due to which a claim is made
under this Agreement involves facts that
occurred prior to the Policy Period, the
Company shall indemnify the Indemnitee
if the Indemnitee is a party to or
threatened to be made a party to or is
otherwise involved in any Proceeding by or
in the name of the Company to procure
a judgment in its favor by reason of the
fact that the Indemnitee was or is a
director and/or officer of the Company, or
is or was serving at the request of
the Company as a director, officer,
employee or agent of another enterprise,
against all Expenses, judgments, fines
penalties and ERISA excise taxes actually
and reasonably incurred by the Indemnitee
in connection with the defense or
settlement of such a Proceeding, to the
fullest extent permitted by applicable
corporate law and the Company's Articles of
Incorporation.
4.
Conclusive Presumption Regarding Standards of Conduct. The
Indemnitee
shall be conclusively presumed to have met
the relevant standards of conduct, if
any, as defined by applicable corporate
law, for indemnification pursuant to
this Agreement, unless a determination is
made that the Indemnitee has not met
such standards (i) by the Board of
Directors by a majority vote of a quorum
thereof consisting of directors who were
not parties to the Proceeding due to
which a claim is made under this Agreement,
(ii) by the shareholders of the
Company by majority vote of a quorum
thereof consisting of shareholders who are
not parties to the Proceeding due to which
a claim is made under this Agreement,
(iii) in a written opinion by independent
counsel, selection of whom has been
approved by the Indemnitee in writing, or
(iv) by a court of competent
jurisdiction.
5.
Indemnification of Expenses of Successful Party. Notwithstanding
any
other provision of the Agreement, to the
extent that the Indemnitee has been
successful in defense of any Proceeding or
in defense of any claim, issue or
matter therein, on the merits or otherwise,
including
