INDEMNIFICATION AGREEMENT
EXHIBIT
10.36
This
Agreement, made and entered into as of this __th day of ________ 200_
(“Agreement”), by and between SinoHub, Inc., a Delaware corporation (the
“Company”), and _________________ (the “Indemnitee”).
WHEREAS,
highly competent persons are reluctant to serve corporations as directors or
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 corporations; and
WHEREAS,
the current impracticability of obtaining adequate insurance and the
uncertainties relating to indemnification have increased the difficulty of
attracting and retaining such persons; and
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify 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; and
WHEREAS,
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 Indemnitee be
indemnified to the fullest extent permitted.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
ARTICLE
I
Definitions
For
purposes of this Agreement the following terms shall have the meanings
indicated:
Section
1.1 . “Board”
shall mean the Board of Directors of the Company.
Section
1.2 . “Corporate
Status” describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the
Company or of any other corporation, partnership, joint venture, trust, employee
benefit plan or other Enterprise which such person is or was serving at the
request or on behalf of the Company.
Section
1.3 . “Court”
means the Court of Chancery of the State of Delaware, the court in which the
Proceeding, in respect of which indemnification is sought by the Indemnitee,
shall have been brought or is pending, or another court having subject matter
jurisdiction and personal jurisdiction over the parties.
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Section
1.4 . “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.
Section
1.5 . “Enterprise”
shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was
serving at the request of the Company as a director, officer, employee, agent,
trustee or fiduciary.
Section
1.6 . “Expenses”
shall include, without limitation, 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, facsimile transmission charges, and all other
disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating or being
or preparing to be a witness in a Proceeding.
Section
1.7 . “Good
Faith” shall mean Indemnitee having acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company or, in the case of an Enterprise which is an employee benefit plan,
the best interests of the participants or beneficiaries of said plan, as the
case may be, and, with respect to any Proceeding which is criminal in nature,
having had no reasonable cause to believe Indemnitee’s conduct was
unlawful.
Section
1.8 . “Improper
Personal Benefit” shall include, but not be limited to, the personal gain in
fact by reason of a person’s Corporate Status of a financial profit, monies or
other advantage not also accruing to the benefit of the Company or to the
stockholders generally and which is unrelated to his or her usual compensation
including, but not limited to: (i) in exchange for the exercise of influence
over the Company’s affairs; (ii) as a result of the diversion of corporate
opportunity; or (iii) pursuant to the use or communication of confidential or
inside information for the purpose of generating a profit from trading in the
Company’s securities. Notwithstanding the foregoing, “Improper
Personal Benefit” shall not include any benefit, directly or indirectly, related
to actions taken in order to evaluate, discourage, resist, prevent or negotiate
any transaction with or proposal from any person or entity seeking control of,
or a controlling interest in, the Company.
Section
1.9 . “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporate law and may include law firms or members thereof that are
regularly retained by the Company but not 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 standards of professional conduct then prevailing and applicable to
such counsel, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this
Agreement unless such parties execute a written waiver of any such conflict of
interest.
Section
1.10 . “Officer”
means the president, vice presidents, treasurer, assistant treasurer(s), chief
financial officer, secretary, assistant secretary and such other executive
officers as are appointed by the Board or by the board of directors of the
Enterprise, as the case may be.
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Section
1.11 . “Proceeding”
includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation (including any internal corporate investigation), administrative
hearing or any other actual, threatened or completed proceeding, whether civil,
criminal, administrative or investigative, formal or informal, other than one
initiated by Indemnitee. For purposes of the foregoing sentence, a
“Proceeding” shall not be deemed to have been initiated by Indemnitee where
Indemnitee seeks, pursuant to Article VIII of this Agreement, to enforce
Indemnitee’s rights under this Agreement.
ARTICLE
II
Term
of Agreement
This
Agreement shall continue until and terminate upon the later of: (i) ten (10)
years after the date that Indemnitee shall have ceased to serve in all
capacities as a director, officer, employee, agent, trustee or fiduciary of the
Company or of any other Enterprise (the “Ten Year Period”); or (ii) the final
termination of all pending Proceedings instituted before the expiration of the
Ten Year Period in respect of which Indemnitee is granted rights of
indemnification or advancement of expenses hereunder and of any proceeding
commenced by Indemnitee within the Ten Year Period pursuant to Article VIII of
this Agreement relating thereto.
ARTICLE
III
Services
by Indemnitee, Notice of Proceedings
Section 3.1.
Services . Indemnitee agrees to serve or continue to serve
as a director or Officer of the Company for so long as he or she is duly elected
or appointed. Indemnitee may at any time and for any reason resign
from such position (subject to any other contractual obligation or any
obligation imposed by operation of law).
Section 3.2. Notice of
Proceeding . Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder, but the omission so to notify the Company shall not relieve
the Company from its obligations hereunder.
ARTICLE
IV
Indemnification
Section 4.1. In
General . In connection with any Proceeding, the Company
shall indemnify, and advance Expenses, to Indemnitee as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may hereafter from time
to time permit.
Section 4.2. 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 4.2 if, by reason of Indemnitee’s
Corporate Status, Indemnitee is, or is 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. Indemnitee shall be indemnified against Expenses,
judgments, penalties, fines 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 matter therein, if Indemnitee acted in
Good Faith and such Indemnitee has not been adjudged during the course of such
Proceeding to have derived an Improper Personal Benefit from the transaction or
occurrence forming the basis of such Proceeding.
Section 4.3. Proceedings by
or in the Right of the Company . Indemnitee shall be
entitled to the rights of indemnification provided in this Section 4.3 if, by
reason of Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be
made, a party to or is otherwise involved in any Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Indemnitee
shall be indemnified against Expenses, judgments, penalties, fines and amounts
paid in settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted in
Good Faith and such Indemnitee has not been adjudged during the course of such
Proceeding to have derived an Improper Personal Benefit from the transaction or
occurrence forming the basis of such Proceeding. Notwithstanding the
foregoing, no such indemnification shall be made in respect of any claim, issue
or matter in such Proceeding as to which Indemnitee shall have been adjudged to
be liable to the Company if applicable law prohibits such indemnification;
provided, however, that, if applicable law so permits, indemnification shall
nevertheless be made by the Company in such event if and only to the extent that
the Court which is considering the matter shall so determine.
Section 4.4. Indemnification
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 Indemnitee’s Corporate
Status, a party to or is otherwise involved in and is successful, on the merits
or otherwise, in any Proceeding, Indemnitee shall be indemnified, to the maximum
extent permitted by law, against all Expenses, judgments, penalties, fines, and
amounts paid in settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s 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, to the maximum extent
permitted by law, against all Expenses, judgments, penalties, fines, and amounts
paid in settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully resolved claim, issue
or matter as determined by the Court which adjudicates the
Proceeding. For purposes of this Section 4.4 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.
Section 4.5. Indemnification
for Expenses of a Witness . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate
Status, a witness in any Proceeding, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection therewith.
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ARTICLE
V
Advancement
of Expenses
Notwithstanding
any provision to the contrary in Article VI, the Company (acting through the
President) shall advance all reasonable Expenses which, by reason of
Indemnitee’s Corporate Status, were incurred by or on behalf of Indemnitee in
connection with any Proceeding, within thirty (30) days after the receipt by the
Company of a statement or statements from Indemnitee requesting such advance or
advances, 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 if it shall ultimately be determined that Indemnitee is not entitled to
be indemnified against such Expenses. Any advance and undertakings to
repay pursuant to this Article V shall be unsecured and interest
free. Advancement of Expenses pursuant to this Article V shall not
require approval of the Board or the stockholders of the Company, or of any
other person or body. The President or, at the President’s request,
the Secretary of the Company shall promptly advise the Board in writing of the
request for advancement of Expenses, of the amount and other details of the
advance and of the undertaking to make repayment pursuant to this Article
V.
ARTICLE
VI
Procedures
for Determination of Entitlement
to
Indemnification and Defense of Claims
Section 6.1. Initial
Request . To obtain indemnification under this Agreement
(other than advancement of Expenses pursuant to Article V), Indemnitee shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and as is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The President, or at the President’s
request, the Secretary of the Company shall promptly advise the Board in writing
that Indemnitee has requested indemnification.
Section 6.2. Method of
Determination . A determination (if required by applicable
law in the specific case) with respect to Indemnitee’s entitlement to
indemnification shall be made: (i) by the Board by a majority vote of a quorum
consisting of Disinterested Directors; or (ii) in the event that a quorum of the
Board consisting of Disinterested Directors is not obtainable or, even if
obtainable, if such quorum of Disinterested Directors so directs, by Independent
Counsel, in a written opinion to the Board, a copy of which shall be delivered
to Indemnitee; or (iii) by a special litigation committee of the Board appointed
by the Board; or (iv) by the stockholders of the Company by vote of a majority
of the holders of the Company’s outstanding capital stock at the time entitled
to vote on the election or removal of directors, voting as a single class,
including the capital stock of Indemnitee.
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Section 6.3. Selection,
Payment, Discharge of Independent Counsel . In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6.2 of this Agreement, the Independent Counsel shall
be selected, paid, and discharged in the following manner:
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(i)
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The
Independent Counsel shall be selected by the Board, and the Company shall
give written notice to Indemnitee advising Indemnitee of the identity of
the Independent Counsel so
selected.
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(ii)
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Following
the initial selection described in clause (i) of this Section 6.3,
Indemnitee may, within seven (7) days after such written notice of
selection has been given, deliver to the Company 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 1.9 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 such 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.
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(iii)
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Either
the Company or Indemnitee may petition a Court if the parties have been
unable to agree on the selection of Independent Counsel within twenty (20)
days after submission by Indemnitee of a written request for
indemnification pursuant to Section 6.1 of this Agreement. Such
petition may request a determination whether an objection to the party’s
selection is without merit and/or seek the appointment as Independent
Counsel of a person selected by the Court or by such other person as the
Court shall designate. A person so appointed shall act as
Independent Counsel under Section 6.3 of this
Agreement.
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(iv)
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The
Company shall pay any and all reasonable fees of Independent Counsel and
expenses incurred by such Independent Counsel in connection with acting
pursuant to this Agreement, and the Company shall pay all reasonable fees
and expenses incident to the procedures of this Section 6.3, regardless of
the manner in which such Independent Counsel was selected or
appointed.
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(v)
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Upon
the due commencement of any judicial proceeding or arbitration pursuant to
Section 8.2 of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then
prevailing).
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Section 6.4.
Cooperation . Indemnitee shall cooperate with the person,
persons or entity making the determination with respect to Indemnitee’s
entitlement to indemnification under this Agreement, 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 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.
Section 6.5. Defense of
Claim . With respect to any Proceeding to which Indemnitee
shall have requested indemnification in accordance with Section
6.1:
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(i)
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The
Company will be entitled to participate in the defense at its own
expense.
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(ii)
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Except
as otherwise provided below, the Company jointly with any other
indemnifying party will be entitled to assume the defense with counsel
reasonably satisfactory to Indemnitee. After notice from the
Company to the Indemnitee of its election to assume the defense of a suit,
the Company will not be liable to the Indemnitee under this Agreement for
any legal or other expenses subsequently incurred by the Indemnitee in
connection with the defense of the Proceeding other than reasonable costs
of investigation or as otherwise provided below. The Indemnitee
shall have the right to employ his own counsel in such Proceeding but the
fees and expenses of such counsel incurred after notice from the Company
of its assumption of the defense 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 concluded
reasonably that there may be a conflict of interest between the Company
and the Indemnitee in the conduct of the defense of such action and such
conclusion is confirmed in writing by the Company’s outside legal counsel
regularly employed by it in connection with corporate matters; or (iii)
the Company shall not in fact have employed counsel to assume the defense
of such Proceeding, in each of which cases the fees and expenses of
counsel shall be at the expense of the Company. The Company
shall be entitled to participate in, but shall not be entitled to assume
the defense of any Proceeding brought by or in the right of the Company or
as to which the Indemnitee shall have made the conclusion provided for in
(ii) above and such conclusion shall have been so confirmed by the
Company’s said outside counsel.
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(iii)
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Notwithstanding
any provision of this Agreement to the contrary, the Company shall not be
liable to indemnify the Indemnitee under this Article for any amounts paid
in settlement of any Proceeding or claim effected without its written
consent. The Company shall not settle any Proceeding or claim
in any manner which would impose any penalty, limitation or
disqualification of the Indemnitee for any purpose without the
Indemnitee’s written consent. Neither the Company nor the
Indemnitee will unreasonably withhold their consent to any proposed
settlement.
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Section 6.6.
Payment . If it is determined that Indemnitee is entitled to
indemnification not covered by defense of the claim afforded under Section 6.5
above, payment to Indemnitee shall be made within ten (10) days after such
determination.
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ARTICLE
VII
Presumptions
and Effect of Certain Proceedings
Section 7.1. Burden of
Proof . 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 if Indemnitee has submitted a request for indemnification
in accordance with Section 6.1 of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the making by
any person, persons or entity of any determination contrary to that
presumption.
Section 7.2. Effect of Other
Proceedings . The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or conviction, or
upon a plea of guilty or of nolo contendere or its equivalent, shall not (except
as otherwise expressly provided in this Agreement) of itself adversely affect
the right of Indemnitee to indemnification or create a presumption that
Indemnitee did not act in Good Faith.
Section 7.3. Reliance as
Safe Harbor . For purposes of any determination of Good
Faith, 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, 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. The
provisions of this Section 7.3 shall not be deemed to be exclusive or to limit
in any way the other circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in this
Agreement.
Section 7.4. Actions of
Others . The knowledge and/or actions, or failure to act, of
any director, Officer, employee, agent, trustee or fiduciary of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
ARTICLE
VIII
Remedies
of Indemnitee
Section 8.1.
Application . This Article VIII shall apply in the event of
a Dispute. For purposes of this Article, “Dispute”, shall mean any of
the following events:
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(i)
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a
determination is made pursuant to Article VI of this Agreement that
Indemnitee is not entitled to indemnification under this
Agreement;
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(ii)
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an
advancement of Expenses is not timely made pursuant to Article V of this
Agreement;
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(iii)
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the
determination of entitlement to be made pursuant to Section 6.2 of this
Agreement has not been made within sixty (60) days after receipt by the
Company of the request for
indemnification;
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(iv)
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the
payment of indemnification is not made pursuant to Section 4.5 of this
Agreement within ten (10) days after receipt by the Company of a written
request therefor; or
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(v)
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a
notice of election by the Company to assume defense of a claim as provided
for in Section 6.5 or payment of indemnification, as the case may be, is
not given or 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 Article VI of this
Agreement.
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Section 8.2.
Adjudication . In the event of a Dispute, Indemnitee shall
be entitled to an adjudication in an appropriate Court of Indemnitee’s
entitlement to such indemnification or advancement of
Expenses. Alternatively, Indemnitee, at Indemnitee’s option, may seek
an award in arbitration to be conducted by a single arbitrator in San Francisco,
California pursuant to the rules of the American Arbitration
Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within one hundred eighty (180) days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 8.2. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in
arbitration.
Section 8.3. De Novo
Review . In the event that a determination shall have been
made pursuant to Article VI of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Article VIII shall be conducted in all respects as a de novo trial or
arbitration on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any such proceeding or arbitration,
the Company shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
Section 8.4. Company
Bound . If a determination shall have been made or deemed to
have been made pursuant to Article VI of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration absent: (i) a misstatement by Indemnitee
of a material fact, or any 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.
Section 8.5. Procedures
Valid . The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Article VIII 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.
Section 8.6. Expenses of
Adjudication . In the event that Indemnitee, pursuant to
this Article VIII, seeks a judicial adjudication of or an award in arbitration
to enforce Indemnitee’s rights
under, or to recover damages for breach of, this Agreement, Indemnitee shall be
entitled to recover from the Company, and shall be indemnified by the Company
against, any and all expenses (of the types described in the definition of
Expenses in Section 1.6 of this Agreement) actually and reasonably incurred by
Indemnitee in such adjudication or arbitration, but only if Indemnitee prevails
therein. If it shall be determined in such adjudication or
arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the expenses incurred by
Indemnitee in connection with such adjudication or arbitration shall be
appropriately prorated as determined by the court or arbitrator which determines
the adjudication or arbitration.
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ARTICLE
IX
Non-Exclusivity,
Insurance, Subrogation
Section 9.1.
Non-Exclusivity . The rights of indemnification and to
receive advancement of Expenses as provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Certificate of Incorporation of the Company
as amended and/or restated, the By-Laws of the Company as amended and/or
restated, any agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration, rescission or replacement of
this Agreement or any provision hereof shall be effective as to Indemnitee with
respect to any action taken or omitted by such Indemnitee in Indemnitee’s
Corporate Status prior to such amendment, alteration, rescission or
replacement.
Section 9.2.
Insurance . The Company may maintain an insurance policy or
policies against liability arising out of this Agreement or
otherwise.
Section 9.3.
Subrogation . 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.
Section 9.4. No Duplicative
Payment . 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, Certificate of Incorporation of
the Company as amended and/or restated, By-Laws of the Company as amended and/or
restated or otherwise.
ARTICLE
X
General
Provisions
Section 10.1. Successors and
Assigns . This Agreement shall be binding upon the Company
and its successors and assigns and shall inure to the benefit of Indemnitee and
Indemnitee’s legal representatives, heirs, executors and
administrators.
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Indemnification
Agreement
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Section 10.2.
Severability . If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
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(i)
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The
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby;
and
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(ii)
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To
the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or
unenforceable.
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Section 10.3. No Adequate
Remedy . The parties declare that it is impossible to
measure in money the damages which will accrue to either party by reason of a
failure to perform any of the obligations under this
Agreement. Therefore, if either party shall institute any action or
proceeding to enforce the provisions hereof, such party against whom such action
or proceeding is brought hereby waives the claim or defense that the other party
has an adequate remedy at law, and such party shall not urge in any such action
or proceeding the claim or defense that the other party has an adequate remedy
at law.
Section 10.4.
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.
Section 10.5. Modification
and Waiver . No supplement, modification 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.
Section 10.6.
Notices . All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if: (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed; (ii) sent by prepaid
nationally recognized overnight courier on the next business day after the date
on which it is so delivered to such courier; (iii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed; or (iv) by facsimile, on the day it is sent with
receipt acknowledging delivery:
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|
If
to Indemnitee, to:
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As
shown with Indemnitee’s Signature
below.
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If
to the Company, to:
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0/X,
Xxxxxxxx 00, Xxxx 0, Xxxxxxx Xxxx.
Technology
Park, Xxxxxxx Xxxxxxxx
Xxxxxxxx,
Xxxxx 000000
Fax:
000-00-000-0000-0000
Attn:
Chief Executive Officer
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Indemnification
Agreement
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Page 11
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With
a copy to:
Seyfarth
Xxxx XXX
Xxx
Xxxxxxx Xxxx
Xxxxxx,
XX 00000
Fax:
(000) 000-0000
Attn:
Xxxxxxx Xxxxxx, Esquire
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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.
Section 10.7. Governing
Law . The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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Indemnification
Agreement
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Page 12
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first set forth above.
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By:
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||||
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Xxxxx
X. Xxxxxxx
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Chief
Executive
Officer
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INDEMNITEE
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||||
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Address
and Fax Number of Indemnitee:
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||||
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Fax
No.
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||||
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Indemnification
Agreement
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Signature
Page
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