EXHIBIT 10.1
XXXXXX.XXX, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is entered into as of the __th day of
___, ____ by and between XXXXXX.XXX, INC., a Delaware corporation (the
"Company"), and the Indemnitee identified on the signature page hereto
(collectively with his or her respective Affiliated Persons, as defined below,
the "Indemnitee").
RECITALS
A. The Company and Indemnitee recognize the continued difficulty in
obtaining liability insurance for its directors, officers, employees,
controlling persons, fiduciaries and other agents and affiliates, the
significant increases in the cost of such insurance and the general reductions
in the coverage of such insurance.
B. The Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, controlling persons, fiduciaries and other agents and affiliates to
expensive litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited.
C. The current protection available to directors, officers,
employees, controlling persons, fiduciaries and other agents and affiliates of
the Company may not be adequate under the present circumstances, and directors,
officers, employees, controlling persons, fiduciaries and other agents and
affiliates of the Company (or persons who may be alleged or deemed to be the
same), including the Indemnitee, may not be willing to continue to serve or be
associated with the Company in such capacities without additional protection.
D. The Company (1) desires to attract and retain the involvement of
highly qualified persons, such as Indemnitee, to serve and be associated with
the Company, and (2) accordingly, wishes to provide for the indemnification and
advancement of expenses to the Indemnitee to the maximum extent permitted by
law.
AGREEMENTS
NOW, THEREFORE, the Company and the Indemnitee hereby agree as
follows:
1. Indemnification.
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(a) Indemnification of Expenses. Subject to the provisions of
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section 1(b), the Company shall indemnify and hold harmless the Indemnitee
(including all of his or her respective Affiliated Persons (as defined below))
to the fullest extent permitted by law if such Indemnitee was or is or becomes a
party to or witness or other participant in, or is threatened to be made a party
to or witness or other participant in, any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution mechanism, or any
hearing, inquiry or investigation that such Indemnitee in good faith believes
might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (hereinafter a "Claim") by reason of (or
arising in part out of) any event or occurrence related to the fact that
Indemnitee is or was (or is alleged to be or to have been) a director, officer,
employee, controlling person, fiduciary or other agent or affiliate of the
Company, or any subsidiary of the Company, or is or was (or is alleged to be or
to have been) serving at the request of the Company as a director, officer,
employee, controlling person, fiduciary or other agent or affiliate of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of such Indemnitee while serving (or
allegedly serving) in such capacity including, without limitation, any and all
losses, claims, damages, expenses and liabilities, joint or several (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit proceeding or any claim asserted)
under the Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, or other federal or state statutory law or regulation, at
common law or otherwise, which relate directly or indirectly to the
registration, purchase, sale or ownership of any securities of the Company or to
any fiduciary obligation owed with respect to the Company and its stockholders
(hereinafter an "Indemnification Event"), against any and all expenses
(including attorneys' fees and all other costs, expenses and obligations
incurred in connection with investigating, defending a witness in or
participating in (including on appeal), or preparing to defend, be a witness in
or participate in, any such action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation), judgments, fines,
penalties and amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably withheld) of
such Claim and any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments
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under this Agreement (collectively, hereinafter "Expenses"), including all
interest, assessments and other charges paid or payable in connection with or in
respect of such Expenses. Such payment of Expenses shall be made by the Company
as soon as practicable but in any event no later than ten days after written
demand by the Indemnitee therefor is presented to the Company.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the
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obligations of the Company under section 1(a) shall be subject to the condition
that the Reviewing Party (as defined in section 10(e) hereof) shall not have
determined (in a written opinion, in any case in which the Independent Legal
Counsel referred to in section 1(c) hereof is involved) that Indemnitee would
not be permitted to be indemnified under applicable law, and (ii) the obligation
of the Company to make an advance payment of Expenses to Indemnitee pursuant to
section 2(a) (an "Expense Advance") shall be subject to the condition that, if,
when and to the extent that the Reviewing Party determines that Indemnitee would
not be permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitees(who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee's obligation to reimburse the Company for any
Expense Advance shall be unsecured and no interest shall be charged thereon. If
there has not been a Change in Control (as defined in section 10(c) hereof), the
Reviewing Party shall be selected by the Board of Directors, and if there has
been such a Change in Control (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control), the Reviewing Party shall be the
Independent Legal Counsel referred to in section 10(d) hereof. If there has been
no determination by the Reviewing Party or if the Reviewing Party determines
that Indemnitee substantively would not be permitted to be indemnified in whole
or in part under applicable law, Indemnitee shall have the right to commence
litigation seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including the legal
or factual bases therefor, and the Company hereby consents to service of process
and to appear in any such proceeding. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Company and Indemnitee.
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(c) Contribution. If the indemnification provided for in section
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l(a) above for any reason is held by a court of competent jurisdiction to be
unavailable to an Indemnitee in respect of any losses, claims, damages, expenses
or liabilities referred to therein, then the Company, in lieu of indemnifying
such Indemnitee thereunder, shall contribute to the amount paid or payable by
such Indemnitee as a result of such losses, claims, damages, expenses or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Indemnitee, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Indemnitee in connection with the action or inaction which resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. In connection with the registration of the Company's
securities, the relative benefits received by the Company and the Indemnitee
shall be deemed to be in the same respective proportions that the net proceeds
from the offering (before deducting expenses) received by the Company and the
Indemnitee, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
securities so offered. The relative fault of the Company and the Indemnitee
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Indemnitee and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Indemnitee agree that it would not be
just and equitable if contribution pursuant to this section l(c) were determined
by pro rata or per capita allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. In connection with the registration of the
Company's securities, in no event shall an Indemnitee be required to contribute
any amount under this section l(c) in excess of the lesser of (i) that
proportion of the total of such losses, claims, damages or liabilities
indemnified against equal to the proportion of the total securities sold under
such registration statement which is being sold by such Indemnitee or (ii) the
proceeds received by such Indemnitee from its sale of securities under such
registration statement. No person found guilty of fraudulent misrepresentation
(within the meaning of section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent
misrepresentation.
(d) Survival Regardless of Investigation. The indemnification
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and contribution provided for in this section 1 will remain in full force and
effect regardless of any investigation made by or on behalf of the
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Indemnitee or any officer, director, employee, agent or controlling person of
the Indemnitee.
(e) Change in Control. The Company agrees that if there is a
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Change in Control (as defined below) of the Company (other than a Change in
Control which has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in Control) then,
with respect to all matters thereafter arising concerning the rights of the
Indemnitee to payments of Expenses under, this Agreement or any other agreement
or under the Company's Certificate of Incorporation or By-Laws as now or
hereafter in effect, Independent Legal Counsel (as defined in section 10(d)
hereof) shall be selected by the Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld). Such counsel, among other things,
shall render its written opinion to the Company and Indemnitee as to whether and
to what extent Indemnitee would be permitted to be indemnified under applicable
law. The Company agrees to abide by such opinion and to pay the reasonable fees
of the Independent Legal Counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(f) Mandatory Payment of Expenses. Notwithstanding any other
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provision of this Agreement other than section 9 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in the defense of any
action, suit, proceeding, inquiry or investigation referred to in section (1)(a)
hereof or in the defense of any claim, issue or matter therein, such Indemnitee
shall be indemnified against all Expenses incurred by such Indemnitee in
connection therewith.
2. Expenses; Indemnification Procedure.
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(a) Advancement of Expenses. The Company shall advance all
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Expenses incurred by the Indemnitee. The advances to be made hereunder shall be
paid by the Company to the Indemnitee as soon as practicable but in any event no
later than ten days after written demand by such Indemnitee therefor to the
Company.
(b) Notice/Cooperation by Indemnitee. The Indemnitee shall give
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the Company notice in writing as soon as practicable of any Claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement, but the delay or omission to so notify the Company shall not relieve
the Company from any liability which it may have to Indemnitee under this
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Agreement, except to the extent the the Company is materially prejudiced by such
delay or omission. Notice to the Company shall be directed to the Chief
Executive Officer of the Company at the address shown on the signature page of
this Agreement (or such other address as the Company shall designate in writing
to Indemnitee). In addition, the Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
(c) No Presumptions; Burden of Proof. For purposes of this
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Agreement, the termination of any Claim by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo contende,
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or its equivalent, shall not create a presumption that the Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law. In
addition, neither the failure of the Reviewing Party to have made a
determination as to whether an Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that the Indemnitee has not met such standard of conduct or did
not have such belief, prior to the commencement of legal proceedings by
Indemnitee to secure a judicial determination that the Indemnitee should be
indemnified under applicable law, shall be a defense to the Indemnitee's claim
or create a presumption that the Indemnitee has not met any particular standard
of conduct or did not have any particular belief. In connection with any
determination by the Reviewing Party or otherwise as to whether the Indemnitee
is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that the Indemnitee is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the
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Company of a notice of a Claim pursuant to section 2(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt notice of the commencement of such Claim to the insurers in accordance
with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such action,
suit, proceeding, inquiry or investigation in accordance with the terms of such
policies.
(e) Selection of Counsel. In the event the Company shall be
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obligated hereunder to pay the Expenses of any Claim, the Company shall be
entitled to assume the defense of such Claim, with counsel approved by the
applicable Indemnitee, which approval shall not be unreasonably withheld, upon
the delivery to such Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by the Indemnitee and
the retention of such counsel by the Company, the Company will not be liable to
such
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Indemnitee under this Agreement for any fees of counsel subsequently incurred by
such Indemnitee with respect to the same Claim; provided that, (i) the
Indemnitee shall have the right to employ such Indemnitee's counsel in any such
Claim at the Indemnitee's expense and (ii) if [a] the employment of counsel by
the Indemnitee has been previously authorized by the Company, [b] such
Indemnitee shall have reasonably concluded that there is a conflict of interest
between the Company and such Indemnitee in the conduct of any such defense, or
[c] the Company shall not continue to retain such counsel to defend such Claim,
then the fees and expenses of the Indemnitee's counsel shall be at the expense
of the Company. The Company shall have the right to conduct such defense as it
sees fit in its sole discretion, including the right to settle any claim against
the Indemnitee without the consent of such Indemnitee.
3. Additional Indemnification Rights; Nonexclusivity.
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(a) Scope. The Company hereby agrees to indemnify the Indemnitee
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to the fullest extent permitted by law, notwithstanding that such
indemnification may not be specifically authorized by the other provisions of
this Agreement, the Company's Certificate of Incorporation, the Company's By-
Laws or by statute. In the event of any change after the date of this Agreement
in any applicable law, statute or rule which expands the right of a Delaware
corporation to indemnify a member of its Board of Directors or an officer,
employee, controlling person, agent or fiduciary, it is the intent of the
parties hereto that the Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its Board of Directors or an officer, employee, agent or
fiduciary, such change, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations hereunder except as set forth
in section 8(a) hereof.
(b) Nonexclusivity. The indemnification provided by this
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Agreement shall be in addition to any rights to which the Indemnitee may be
entitled under the Company's Certificate of Incorporation, its By-Laws, any
agreement, any vote of stockholders or disinterested directors, the General
Corporation Law of the State of Delaware, or otherwise. The indemnification
provided under this Agreement shall continue as to the Indemnitee for any action
such Indemnitee took or did not take while serving in an indemnified capacity
even though the Indemnitee may have ceased to serve in such capacity.
4. No Duplication of Payments. The Company shall not be liable under
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this Agreement to make any payment in connection with any Claim made against the
Indemnitee to the extent such Indemnitee has otherwise actually
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received payment (under any insurance policy, Certificate of Incorporation, By-
Law or otherwise) of the amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. If the Indemnitee is entitled under any
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provision of this Agreement to indemnification by the Company for any portion of
Expenses incurred in connection with any Claim, but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion of such Expenses to which such Indemnitee is entitled.
6. Mutual Acknowledgment. The Company and the Indemnitee acknowledge
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that in certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers, employees, controlling
persons, fiduciaries or other agents or affiliates under this Agreement or
otherwise. The Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's rights under public
policy to indemnify the Indemnitee.
7. Liability Insurance. To the extent the Company maintains
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liability insurance applicable to directors, officers, employees, control
persons, fiduciaries or other agents and affiliates, each Indemnitee shall be
covered by such policies in such a manner as to provide to the Indemnitee the
same rights and benefits as are accorded to the most favorably insured of the
Company's directors, if such Indemnitee is a director, or of the Company's
officers, if such Indemnitee is not a director of the Company but is an officer;
or of the Company's key employees, controlling persons, fiduciaries or other
agents or affiliates, if such Indemnitee is not an officer or director but is a
key employee, control person, fiduciary, agent or affiliate.
8. Exceptions. Any other provision herein to the contrary
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notwithstanding, the Company shall not be obligated pursuant to the terms of the
this Agreement:
(a) Excluded Action or Omissions. To indemnify the Indemnitee for
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such Indemnitee's acts, omissions or transactions from which the Indemnitee is
prohibited from receiving indemnification under this Agreement or under
applicable law; provided, however, that notwithstanding any limitation set forth
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in this section 8(a) regarding the Company's obligation to provide
indemnification, Indemnitee shall be entitled under section 2(a) to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that the
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Indemnitee has engaged in acts, omissions or transactions for which Indemnitee
is prohibited from receiving indemnification under this Agreement or applicable
law;
(b) Claims Initiated by Indemnitee. To indemnify or advance
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expenses to the Indemnitee with respect to Claims initiated or brought
voluntarily by such Indemnitee and not by way of defense, except (i) with
respect to actions or proceedings to establish or enforce a right to indemnify
under this Agreement or any other agreement or insurance policy or under the
Company's Certificate of Incorporation or By-Laws now or hereafter in effect
relating to Claims for Indemnifiable Events, (ii) in specific cases if the Board
of Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under section 145 of the Delaware General Corporation Law,
regardless of whether such Indemnitee ultimately is determined to be entitled to
such indemnification, advance expense payment or insurance recovery, as the case
may be;
(c) Lack of Good Faith. To indemnify the Indemnitee for any
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expenses incurred by such Indemnitee with respect to any proceeding instituted
by Indemnitee on the Company to enforce or interpret this Agreement, if a court
of competent jurisdiction determines that each of the material assertions made
by the Indemnitee in such proceeding was not made in good faith or was
frivolous; or
(d) Claims Under Section 16(b). To indemnify the Indemnitee for
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expenses and the payment of profits arising from the purchase and sale by such
Indemnitee of securities in violation of section 16(b) of the Securities
Exchange Act of 1934, as amended or any similar successor statute; provided,
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however, that notwithstanding any limitation set forth in this section 8(d)
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regarding the Company's obligation to provide indemnification, Indemnitee shall
be entitled under section 2 to receive Expense Advances hereunder with respect
to any such Claim unless and until a court having jurisdiction over the Claim
shall have made a final judicial determination (as to which all rights of appeal
therefrom have been exhausted or lapsed) that the Indemnitee has liability
arising from the purchase and sale by such Indemnitee of securities in violation
of section 16(b) of the Securities Exchange Act of 1934, as amended or any
similar successor statute.
9. Period of Limitations. No legal action shall be brought and no
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cause of shall be asserted by or in the right of the Company against the
Indemnitee, such Indemnitee's estate, spouse, heirs, executors or personal or
legal representatives after the expiration of two years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such two-year period; provided, however, that if any shorter
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period
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of limitations is otherwise applicable to any such cause of action, such shorter
period shall govern.
10. Construction of Certain Phrases.
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(a) For the purposes of this Agreement, an "Affiliated Person" of
an Indemnitee shall include any director, officer, employee, controlling person
(within the meaning of section 15 of the Securities Act of 1933, as amended, or
section 20 of the Securities Exchange Act of 1934, as amended), agent or
fiduciary of the Indemnitee, any stockholder of the Company for whom Indemnitee
serves as a director, officer, employee, controlling person, agent or fiduciary,
and any partnership, corporation, limited liability company, association, joint
stock company, trust or joint venture controlling, controlled by or under common
control with such a stockholder. For these purposes, "control" means the
possession, directly or indirectly, of the power to direct management and
policies of a person or entity, whether through the ownership of voting
securities, contract or otherwise.
(b) For purposes of this Agreement, references to the "Company"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify is directors, officers, employees,
agents, fiduciaries and other Affiliated Persons, so that if Indemnitee is or
was a director, officer, employee, agent, control person, fiduciary or an
Affiliated Person of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee,
control person, agent or fiduciary or another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise, such Indemnitee shall
stand in the same position under the provisions of this Agreement with respect
to the resulting or surviving corporation as such Indemnitee would have with
respect to such constituent corporation if its separate existence had continued.
(c) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on the Indemnitee with respect to an employee
benefit plan; and references to "serving at the request of the Company" shall
include any service as a director, office, employee, agent or fiduciary of the
Company which imposes duties on, or involves services by, such director,
officer, employee, agent, fiduciary or other Affiliated Person with respect to
an employee benefit plan, its participants or its beneficiaries; and if the
Indemnitee acted in good faith and in a manner such Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, such
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Indemnitee shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
(d) For purposes of this Agreement a "Change in Control" shall be
deemed to have occurred if (i) any "person" (as such term in used in sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than
a trustee or other fiduciary holding securities under an employee benefit plan
of the Company or a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of stock
of the Company, (A) who is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 10% or more of the
combined voting power of the Company's then outstanding Voting Securities,
increases his beneficial ownership of such securities by 5 % or more over the
percentage so owned by such person, or (B) becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing more than 20% of the total voting power represented by
the Company's then outstanding Voting Securities, (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of
transactions) all or substantially all of the Company's assets.
(e) For purposes of this Agreement, "Independent Legal Counsel"
shall mean an attorney or firm of attorneys, selected in accordance with the
provisions of section l(d) hereof, who shall not have otherwise performed
services for the Company or the Indemnitee within the last three years (other
than with respect to matters concerning the right of the Indemnitee under this
Agreement, or of other Indemnitee under similar indemnity agreements).
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(f) For purposes of this Agreement, a "Reviewing Party" shall
mean any appropriate person or body consisting of a member or members of the
Company's Board of Directors or any other person or body appointed by the Board
of Directors who is not a party to the particular Claim for which an Indemnitee
is seeking indemnification, or Independent Legal Counsel.
(g) For purposes of this Agreement, "Voting Securities" shall
mean any securities of the Company that vote generally in the election of
directors.
11. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall constitute an original.
12. Binding Effect; Successors and Assigns. This Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns, including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, spouses, heirs,
and personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the business
and/or assets of the Company, by written agreement in form and substance
satisfactory to the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place. This Agreement shall
continue in effect with respect to Claims relating to Indemnifiable Events
regardless of whether the Indemnitee continues to serve as a director, officer,
employee, agent, controlling person, or fiduciary of the Company or of any other
enterprise at the Company's request.
13. Attorneys' Fees. In the event that any action is instituted by an
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Indemnitee under this Agreement or under any liability insurance policies
maintained by the Company to enforce or interpret any of the terms hereof or
thereof, the Indemnitee shall be entitled to be paid all Expenses incurred by
such Indemnitee with respect to such action, regardless of whether such
Indemnitee is ultimately successful in such action, and shall be entitled to the
advancement of Expenses with respect to such action, unless, as a part of such
action, a court of competent jurisdiction over such action determines that each
of the material assertions made by such Indemnitee as a basis for such action
was not made in good faith or was frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, the Indemnitee shall be entitled
to be paid all Expenses incurred by such Indemnitee in defense of such action
(including costs and expenses
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incurred with respect to Indemnitee counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of Expenses with respect to
such action, unless, as a part of such action, a court having jurisdiction over
such action determines that each of such Indemnitee's material defenses to such
action was made in bad faith or was frivolous.
14. Notice. All notices and other communications required or
------
permitted hereunder shall be in writing, shall be effective when given, and
shall, in any event be deemed to be given (a) five (5) days after deposit with
the U.S. Postal Service or other applicable postal service, if delivered by
first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c)
one business day after the business day of deposited with Federal Express or
similar overnight courier, freight prepaid, or (d) one day after the business
day of delivery by facsimile transmission, if deliverable by facsimile
transmission, with copy by first class mail, postage prepaid, and shall be
addressed if to an Indemnitee, at the Indemnitee's address as set forth beneath
the Indemnitee's signature to this Agreement, and if to the Company at the
address of its principal corporate offices (attention: Secretary) or at such
other address as such party may designate by ten days' advance written notice to
the other party hereto.
15. Consent to Jurisdiction. The Company and the Indemnitee each
-----------------------
hereby irrevocably consent to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall be commenced, prosecuted and continued only in the
Court of Chancery of the State of Delaware in and for New Castle County, which
shall be the exclusive and only proper forum for adjudicating such a claim.
16. Severability. The provisions of this Agreement shall be
------------
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted by
law. Furthermore, to the fullest extent possible, the provisions of this
Agreement (including, without limitations, each portion of this Agreement
containing any provision held to be invalid, void or otherwise unenforceable,
that is not itself invalid, void or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
17. Choice of Law. This Agreement shall be governed by and its
-------------
provisions construed and enforced in accordance with the laws of the State of
Delaware, as applied to contracts between Delaware residents, entered into and
to
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be performed entirely within the State of Delaware, without regard to the
conflict of laws principles thereof.
18. Subrogation. In the event of payment under this Agreement, the
-----------
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suite to enforce such rights.
19. Amendment and Termination. No amendment, modification,
-------------------------
termination or cancellation of this Agreement shall be effective unless it is in
writing signed by all 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.
20. Integration and Entire Agreement. This Agreement sets forth the
--------------------------------
entire understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties hereto.
21. No Construction as Employment Agreement. Nothing contained in
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this Agreement shall be construed as giving the Indemnitee any right to be
retained in the employ of the Company or any of its subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
XXXXXX.XXX, INC., a Delaware corporation
BY_______________________________________
Title:_________________________________
Address: 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
INDEMNITEE:
_________________________________________
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