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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made as of the date set
forth on the signature page to this Agreement, by and between MMAX
Media, Inc., a Nevada corporation ("Company"), and the individual named
on the signature page to this Agreement ("Indemnitee"), an officer
and/or a director of the Company.
R E C I T A L S
A. The Company desires to attract and retain the services of highly
qualified individuals as directors and officers.
B. Indemnitee does not regard the protection currently provided by
applicable law, the Company's governing documents and available
insurance as adequate under the present circumstances, and the Company
has determined that Indemnitee and other directors and officers of the
Company may not be willing to serve or continue to serve in such
capacities without additional protection.
C. In order to induce and encourage highly experienced and capable
persons such as the Indemnitee to serve, or to continue to serve, as an
officer and/or a director, the Board of Directors of the Company has
determined, after due consideration, that this Agreement is not only
reasonable and prudent, but necessary to promote and ensure the best
interests of the Company and its stockholders.
D. The Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to the Indemnitee to
the fullest extent permitted by law and as provided for in this
Agreement.
E. The Company's execution of this Agreement has been approved by
the Board of Directors of the Company.
F. Indemnitee has indicated to the Company that but for the
Company's agreement to enter into this Agreement, Indemnitee would
decline to serve, or to continue to serve, as an officer and/or a
director of the Company.
NOW, THEREFORE, in consideration of the recitals set forth above and
the continued services of the Indemnitee, and as an inducement to the
Indemnitee to serve, or to continue to serve, as an officer and/or a
director of the Company, the Company and the Indemnitee do hereby agree
as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings set forth below:
(a) "Proceeding" shall mean any threatened, pending or completed
action, suit or proceeding, whether brought in the name of the Company
or otherwise and whether of a civil, criminal, administrative or
investigative nature, by reason of the fact that the Indemnitee is or
was an officer and/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 enterprise, whether or not he is serving in such capacity at
the time any liability, Expense (as defined in subparagraph (b) below)
or Loss (as defined in subparagraph (c) below) is incurred for which
indemnification or advancement of Expenses or Losses is to be provided
under this Agreement.
(b) "Expenses" means all costs, charges and expenses incurred in
connection with a Proceeding, including, without limitation, attorneys'
fees, disbursements and retainers, accounting and witness fees, travel
and deposition costs, expenses of investigations, judicial or
administrative proceedings or appeals, 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 is not otherwise compensated by
the Company or any third party; provided, however, that the term
"Expenses" does not include Losses.
(c) "Losses" means any amount which Indemnitee pays or is obligated
to pay in connection with a Proceeding, including, without limitation,
(i) the amount of damages, judgments, amounts paid in settlement, fines
or penalties relating to any Proceeding, (ii) sums paid in respect of
any deductible under any applicable D&O Insurance (as defined in
Section 12(a)) or (iii) excise taxes under the Employee Retirement
Income Security Act of 1974 ("ERISA"), as amended, relating to any
Proceeding, either of which are actually levied against the Indemnitee
or paid by or on behalf of the Indemnitee; provided, however, that the
term "Losses" does not include Expenses.
2. Agreement to Serve. The Indemnitee agrees to continue to serve as
an officer and/or a director of the Company at the will of the Company
for so long as Indemnitee is duly elected or appointed or until such
time as Indemnitee tenders a resignation in writing or is terminated as
an officer and/or removed as a director by the Company. Nothing in this
Agreement shall be construed to create any right in Indemnitee to
continued employment with the Company or any subsidiary or affiliate of
the Company. Nothing in this Agreement shall affect or alter any of the
terms of any otherwise valid employment agreement or other agreement
between Indemnitee and the Company relating to Indemnitee's conditions
and/or terms of employment or service.
3. Indemnification in Third Party Actions. The Company shall
indemnify the Indemnitee in accordance with the provisions of this
Section 3 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 right of the Company to procure a judgment in
its favor), by reason of the fact that the Indemnitee is or was an
officer and/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 enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity, against all Expenses and Losses
actually and reasonably incurred by the Indemnitee in connection with
the defense or settlement of such Proceeding, to the fullest extent
permitted by the Nevada Revised Statutes (the "Law"), whether or not
the Indemnitee was the successful party in any such Proceeding;
provided, however, that any settlement shall be approved in writing by
the Company.
4. Indemnification In Proceedings By or In the Right of the Company.
The Company shall indemnify the Indemnitee in accordance with the
provisions of this Section 4 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 right of the Company to procure a judgment in
its favor by reason of the fact that the Indemnitee is or was an
officer and/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 enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity, against all Expenses actually and
reasonably incurred by Indemnitee in connection with the defense or
settlement of such Proceeding, to the fullest extent permitted by the
Law, whether or not the Indemnitee is the successful party in any such
Proceeding. The Company shall further indemnify the Indemnitee for any
Losses actually and reasonably incurred by the Indemnitee in any such
Proceeding described in the immediately preceding sentence, provided
that either (i) the Proceeding is settled with the approval of a court
of competent jurisdiction, or (ii) indemnification of such amounts is
otherwise ordered by a court of competent jurisdiction in connection
with such Proceeding.
5. Conclusive Presumption Regarding Standard of Conduct. The
Indemnitee shall be conclusively presumed to have met the relevant
standards of conduct required by the 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 of the Company
by a majority vote of a quorum thereof consisting of directors who were
not parties to such Proceeding, (ii) by the stockholders of the Company
by a majority vote, or (iii) in a written opinion of the Company's
independent legal counsel. Further, the termination of any Proceeding
by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, rebut such
presumption that the Indemnitee met the relevant standards of conduct
required for indemnification pursuant to this Agreement.
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, the
Indemnitee shall be indemnified against all Expenses incurred in
connection therewith to the fullest extent permitted by the Law. For
purposes of this Section 6, the Indemnitee will be deemed to have been
successful on the merits if the Proceeding is terminated by settlement
or is dismissed with prejudice.
7. Advances of Expenses. The Expenses incurred by the Indemnitee in
connection with any Proceeding shall be paid by the Company in advance
of the final disposition of the Proceeding at the written request of
the Indemnitee, and within ten (10) business days of such request, to
the fullest extent permitted by the Law; provided, however, that the
Indemnitee shall undertake in writing to repay such amount to the
extent that it is ultimately determined that the Indemnitee is not
entitled to indemnification by the Company.
8. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some
or a portion of the Expenses or Losses actually and reasonably incurred
by Indemnitee in the investigation, defense, appeal or settlement of
any Proceeding but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for the portion of
such Expenses and Losses to which the Indemnitee is entitled.
9. Indemnification Procedure; Determination of Right to
Indemnification.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding with respect to which the Indemnitee
intends to claim indemnification or advancement of Expenses or Losses
pursuant to this Agreement, the Indemnitee will notify the Company of
the commencement thereof. The omission to so notify the Company will
not relieve the Company from any liability which it may have to the
Indemnitee under this Agreement or otherwise.
(b) The Company shall give prompt notice of the commencement of such
Proceeding to the insurers on the D&O Insurance in accordance with the
procedures set forth in the respective policies in favor of Indemnitee.
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) If a claim for indemnification or advancement of Expenses or
Losses under this Agreement is not paid by or on behalf of the Company
within thirty (30) days of receipt of written notice thereof,
Indemnitee may at any time thereafter bring suit in any court of
competent jurisdiction against the Company to enforce the right to
indemnification or advancement of Expenses or Losses provided by this
Agreement. It shall be a defense to any such action (other than an
action brought to enforce a claim for Expenses incurred in defending
any Proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Company) that
the Indemnitee has failed to meet the standard of conduct that makes it
permissible under the Law for the Company to indemnify the Indemnitee
for the amount claimed. The burden of proving by clear and convincing
evidence that indemnification or advancement of Expenses or Losses is
not appropriate shall be on the Company. The failure of the directors
or stockholders of the Company or independent legal counsel to have
made a determination prior to the commencement of such Proceeding that
indemnification or advancement of Expenses or Losses are proper in the
circumstances because the Indemnitee has met the applicable standard of
conduct shall not be a defense to the action or create a presumption
that the Indemnitee has not met the applicable standard of conduct.
(d) The Indemnitee's Expenses incurred in connection with any action
concerning Indemnitee's right to indemnification or advancement of
Expenses or Losses in whole or in part pursuant to this Agreement shall
also be indemnified in accordance with the terms of this Agreement by
the Company regardless of the outcome of such action, unless a court of
competent jurisdiction determines that each of the material claims made
by the Indemnitee in such action was not made in good faith or was
frivolous.
(e) With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate therein at its
own expense and, except as otherwise provided below, to the extent that
it may wish, the Company may assume the defense thereof, with counsel
satisfactory to the Indemnitee. After notice from the Company to the
Indemnitee of its election to assume the defense of a Proceeding, the
Company will not be liable to the Indemnitee under this Agreement for
any Expenses subsequently incurred by the Indemnitee in connection with
the defense thereof, other than reasonable costs of investigation or as
otherwise provided below. The Company shall not settle any Proceeding
in any manner that would impose any penalty or limitation on the
Indemnitee, or include an admission of wrongdoing by the Indemnitee,
without the Indemnitee's prior written consent. The Indemnitee shall
have the right to employ counsel in any such Proceeding, but the
Expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof and the Indemnitee's approval of the
Company's counsel shall be at the expense of the Indemnitee, unless (i)
the employment of counsel by the Indemnitee has been authorized by the
Company, (ii) the Indemnitee shall have reasonably concluded that there
may be a conflict of interest between the Company and the Indemnitee in
the conduct of the defense of a Proceeding, or (iii) the Company shall
not in fact have employed counsel to assume the defense of a
Proceeding, in each of which cases the Expenses of the Indemnitee's
counsel shall be at the expense of the Company. Notwithstanding the
foregoing, the Company shall not be entitled to assume the defense of
any Proceeding brought by or on behalf of the Company or as to which
the Indemnitee has concluded that there may be a conflict of interest
between the Company and the Indemnitee.
(f) With respect to any Proceeding that is other than by or in the
right of the Company, the Indemnitee may require the Company to defend
him. In the event that Indemnitee requires the Company to defend him,
the Company shall promptly undertake to defend any such Proceeding at
the Company's sole expense, employing counsel satisfactory to the
Indemnitee.
(g) If the Company fails timely to defend, contest or otherwise
protect the Indemnitee against any Proceeding which is not by or in the
right of the Company, the Indemnitee shall have the right to do so,
including without limitation, the right to make any compromise or
settlement thereof, and to recover from the Company all Expenses and
Losses and amounts paid as a result thereof.
10. Retroactive Effect. Notwithstanding anything to the contrary
contained in this Agreement, the Company's obligation to indemnify the
Indemnitee and advance Expenses and Losses to the Indemnitee shall be
deemed to be in effect since the date that the Indemnitee first
commenced serving in any of the capacities covered by this Agreement.
11. Limitations on Indemnification. No payments pursuant to this
Agreement shall be made by the Company:
(a) to indemnify or advance Expenses to the Indemnitee with respect
to actions initiated or brought voluntarily by the Indemnitee and not
by way of defense, except with respect to actions brought to establish
or enforce a right to indemnification or advancement of Expenses or
Losses under this Agreement or any other statute or law or otherwise as
required under the Law, but such indemnification or advancement of
Expenses or Losses may be provided by the Company in specific cases if
approved by the Board of Directors by a majority vote of a quorum
thereof consisting of directors who are not parties to such action;
(b) to indemnify the Indemnitee for any Expenses or Losses for which
payment is actually made to the Indemnitee under a valid and
collectible insurance policy, except in respect of any excess beyond
the amount paid under such insurance;
(c) to indemnify the Indemnitee for any Expenses or Losses for which
the Indemnitee has been or is indemnified by the Company or any other
party otherwise than pursuant to this Agreement; or
(d) to indemnify the Indemnitee for any Expenses or Losses sustained
in any Proceeding for an accounting of profits made from the purchase
or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder or similar provisions
of any federal, state or local statutory law.
12. Maintenance of Directors' and Officers' Insurance.
(a) Upon the Indemnitee's request, the Company hereby agrees to
maintain in full force and effect, at its sole cost and expense,
directors' and officers' liability insurance ("D&O Insurance") by an
insurer, in an amount and with a deductible reasonably acceptable to
the Indemnitee, covering the period during which the Indemnitee is
serving in any of the capacities covered by this Agreement and for so
long thereafter as the Indemnitee shall be subject to any possible
claim or threatened, pending or completed Proceeding by reason of the
fact that the Indemnitee is serving in any of the capacities covered by
this Agreement. Upon receipt of any D&O Insurance policy, or any
endorsement to any D&O Insurance policy, the Company shall promptly
provide the Indemnitee with a complete copy thereof.
(b) In all policies of D&O Insurance to be maintained pursuant to
Section 12(a), the Indemnitee shall be named as an insured in such a
manner as to provide Indemnitee with the greatest rights and benefits
available under such policy.
(c) The Company will, within ten (10) days of request of the
Indemnitee and upon each subsequent renewal date of the D&O Insurance,
furnish the Indemnitee with a certificate of insurance naming the
Indemnitee as an insured and otherwise meeting the requirements of this
Section 12 and will not make any changes to such insurance without the
prior consent of the Indemnitee, which consent will not be unreasonably
withheld. Upon receipt by the Company of notice, in any form, of
cancellation or termination or proposed cancellation or termination or
any restriction or limitation of any D&O Insurance, the Company shall,
within five (5) days of receipt of such notice, provide like notice to
the Indemnitee.
(d) Any approval by the Indemnitee of the D&O Insurance will not
release the Company of its obligations under this Agreement.
13. Indemnification Hereunder Not Exclusive; Term. The
indemnification and advancement of Expenses and Losses provided by this
Agreement shall not be deemed to limit or preclude any other rights to
which the Indemnitee may be entitled under the Company's articles of
incorporation or bylaws, any agreement, any vote of stockholders or
disinterested directors of the Company, the Law, or otherwise. The
indemnification under this Agreement shall continue as to the
Indemnitee, even though he may have ceased to be an officer and/or a
director of the Company, for so long as the Indemnitee shall be subject
to any possible Proceeding.
14. Primary Indemnity. The Company's obligation to provide
indemnification to the Indemnitee under this Agreement is primary to
any other source of indemnification or insurance that may be available
to the Indemnitee for matters covered by the indemnification under this
Agreement. The Company agrees that it shall have no right of
subrogation with respect to any such other right of recovery of the
Indemnitee.
15. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of (i) the Indemnitee and Indemnitee's
heirs, devisees, legatees, personal representatives, executors,
administrators and assigns and (ii) the Company and its successors and
assigns, including any transferee of all or substantially all of the
Company's assets and any successor or assign of the Company by merger
or by operation of law.
16. Severability. Each provision of this Agreement is a separate and
distinct agreement and independent of the other, so that if any
provision hereof shall be held to be invalid or unenforceable for any
reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions hereof. To the
extent required, any provision of this Agreement may be modified by a
court of competent jurisdiction to preserve its validity and to provide
the Indemnitee with the broadest possible indemnification and
advancement of Expenses and Losses permitted under the Law. If this
Agreement or any portion thereof is invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless
indemnify Indemnitee as to Expenses and Losses with respect to any
Proceeding to the fullest extent permitted by any applicable portion of
this Agreement that shall not have been invalidated or by any
applicable provision of the Law or any other applicable law.
17. Headings. The headings used herein are for convenience only and
shall not be used in construing or interpreting any provision of the
Agreement.
18. Governing Law. The Nevada Revised Statutes shall govern all
issues concerning the relative rights of the Company and the Indemnitee
under this Agreement. All questions and obligations under this
Agreement shall be construed, interpreted and enforced in accordance
with the laws of the State of Nevada, without giving effect to the
principles of conflicts of laws thereunder which would specify the
application of the law of another jurisdiction.
19. Amendments and Waivers. No amendment, waiver, modification,
termination or cancellation of this Agreement shall be effective unless
in writing and signed by the party against whom enforcement is sought.
The indemnification rights afforded to the Indemnitee hereby are
contract rights and may not be diminished, eliminated or otherwise
affected by amendments to the Company's articles of incorporation,
bylaws or agreements, including any D&O Insurance policies, whether the
alleged actions or conduct giving rise to indemnification hereunder
arose before or after any such amendment. No waiver of any provision of
this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof, whether or not similar, nor shall any waiver
constitute a continuing waiver.
20. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each party and delivered to the other.
21. Notices. All notices and communications shall be in writing and
shall be deemed duly given on the date of delivery or on the date of
receipt of refusal indicated on the return receipt if sent by first
class mail, postage prepaid, registered or certified, return receipt
requested, to the following addresses, unless notice of a change of
address is duly given by one party to the other, in which case notices
shall be sent to such changed address:
If to the Company:
MMAX Media, Inc.
4600 Greenville Avenue, Suite 240
Dallas, Texas 75206
Attn: President
If to the Indemnitee, to the address set forth on the signature page to
this Agreement.
22. Subject Matter and Parties. The intended purpose of this
Agreement is to provide for indemnification and advancement of Expenses
and Losses, and this Agreement is not intended to affect any other
aspect of any relationship between the Indemnitee and the Company and
is not intended to and shall not create any rights in any person as a
third party beneficiary hereunder.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
February 17, 2011.
"Indemnitee" Signature: /s/ Edward Cespedes
Print Name: Edward Cespedes
Address For Notices:
"Company" MMAX MEDIA, INC.,
a Nevada corporation
By: /s/ Tommy Habeeb
Name: TOMMY HABEEB
Its: President
