INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “
Agreement ”) is made and entered into as of
,
, between Jasper Ventures
Inc., a Nevada corporation (the “ Company ”),
and
(“ Indemnitee ”).
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 Bylaws of
the Company (the “ Bylaws ”) also require
indemnification of the officers and directors of the Company.
Indemnitee may also be entitled to indemnification pursuant to the
Chapter 78 of the Nevada Revised Statutes (“ NRS
”). The Bylaws and the NRS expressly provide 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 of directors, officers and other
persons 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 the Bylaws and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee
thereunder;
WHEREAS, Indemnitee does not regard the current
protection available under the Company’s Bylaws 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 service 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 an officer or a director
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), the 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) , Indemnitee shall be
indemnified 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 the 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) , Indemnitee shall be indemnified against
all Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by the Indemnitee, or
on the Indemnitee’s behalf, in connection with such
Proceeding 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; provided, however, if applicable law
so provides, no indemnification against such Expenses, judgments,
penalties, fines and amounts paid in settlement shall be made in
respect of any claim, issue or matter in such Proceeding as to
which Indemnitee shall have been adjudged in a final,
non-appealable judgment in a court of competent jurisdiction to be
liable to the Company unless and to the extent that the Supreme
Court of the State of Nevada shall determine that such
indemnification may be made.
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(c) 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, he shall
be indemnified to the maximum extent permitted by law, as such 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 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, judgments, penalties, fines and amounts paid in
settlement 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 1(c) 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.
2. 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 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.
(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, the Company shall pay, in the first instance, 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 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 Proceeding in which the Company is jointly
liable with Indemnitee, the Company shall contribute to the amount
of Expenses, judgments, penalties, 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, 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, on the one hand,
and Indemnitee, on the other hand, in connection with the events
that resulted in such Expenses, judgments, penalties, fines or
settlement amounts, as well as any other equitable considerations
which the 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, 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.
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(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, 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 rise 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).
4. 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 in any Proceeding to which Indemnitee
is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in
connection therewith.
5. 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 shall include or be preceded or accompanied by an
undertaking by or on behalf of Indemnitee to repay any Expenses
advanced if it shall ultimately be determined 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.
6. 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.
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(b) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of
Section 6(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee’s entitlement
thereto shall be made in the specific case by one of the following
four methods, which shall be at the election of the Board:
(1) by a majority vote of the Disinterested Directors (as
hereinafter defined), even though less than a quorum; (2) by a
committee of Disinterested Directors designated by a majority vote
of the Disinterested Directors, even though less than a quorum;
(3) if there are no Disinterested Directors or if the
Disinterested Directors so direct, by independent legal counsel in
a written opinion to the Board, a copy of which shall be delivered
to the Indemnitee; or (4) if so directed by the Board, by the
stockholders of the Company.
(c) If the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 6(b) hereof, the Independent Counsel initially
shall be selected as provided in this Section 6(c) .
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, as the
case may be, 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 and not objected to, either the Company or Indemnitee
may petition the Supreme Court of the State of Nevada or other
court of competent jurisdiction for resolution of any objection
which shall have been made by the 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 all objections are so 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 all
reasonable 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) In making a determination with
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