INDEMNIFICATION AGREEMENT
AGREEMENT
made as
of this ___ day of March, 2008, between Xxxxxx, Inc., a Delaware corporation
(the "Company"), and __________________ (the "Indemnitee").
WHEREAS,
it is
essential to the Company and its stockholders to attract and retain qualified
and capable directors and officers;
WHEREAS,
the
Certificate of Incorporation of the Company, as amended to date (the
"Certificate of Incorporation") and the By-laws of the Company, as amended
to
date (the "By-laws") allow the Company to indemnify and advance expenses to
its
directors and officers;
WHEREAS,
in
recognition of Indemnitee's need for protection against personal liability
in
order to induce Indemnitee to serve the Company in an effective manner, and
to
supplement or replace the Company's directors' and officers’ liability insurance
coverage, and, in part, to provide Indemnitee with specific contractual
assurance that the protection provided by the Certificate of Incorporation
and
the By-laws will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of the Certificate of Incorporation and the
By-laws), the Company wishes to provide the Indemnitee with the benefits
contemplated by this Agreement; and
WHEREAS,
as a
result of the provision of such benefits Indemnitee has agreed to continue
to
serve the Company as a director and officers;
NOW,
THEREFORE,
the
parties hereto hereby agree as follows:
1. Definitions.
The
following terms, as used herein, shall have the following respective
meanings:
a. Affiliate:
of a
specified Person is a Person who directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the Person specified. The term Associate
used to
indicate a relationship with any Person shall mean (i) any corporation or
organization (other than the Company or a Subsidiary) of which such Person
is an
officer or partner or is, directly or indirectly, the Beneficial Owner of ten
(10) percent or more of any class of Equity Securities; (ii) any trust or other
estate in which such Person has a substantial beneficial interest or as to
which
such Person serves as trustee or in a similar fiduciary capacity (other than
an
Employee Plan Trustee), (iii) any Relative of such Person, or (iv) any officer
or director of any corporation controlling or controlled by such
Person.
b. Beneficial
Ownership:
shall
be determined, and a Person shall be the Beneficial
Owner
of all
securities which such Person is deemed to own beneficially, pursuant to Rule
13d-3 of the General Rules and Regulations under the Securities Exchange Act
of
1934, as amended (or any successor rule or statutory provision), or, if such
Rule 13d-3 shall be rescinded and there shall be no successor rule or statutory
provision thereto, pursuant to such Rule 13d-3 as in effect on the date hereof;
provided,
however,
that a
Person shall, in any event, also be deemed to be the Beneficial Owner of any
Voting Shares: (A) of which such Person or any of its Affiliates or Associates
is, directly or indirectly, the Beneficial Owner; or (B) of which such Person
or
any of its Affiliates or Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the passage of time), pursuant
to
any agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, and (ii) sole or
shared voting or investment power with respect thereto pursuant to any
agreement, arrangement, understanding, relationship or otherwise (but shall
not
be deemed to be the Beneficial Owner of any Voting Shares solely by reason
of a
revocable proxy granted for a particular meeting of stockholders, pursuant
to a
public solicitation of proxies for such meeting, with respect to shares of
which
neither such Person nor any such Affiliate or Associate is otherwise deemed
the
Beneficial Owner), or (C) of which another Person is, directly or indirectly,
the Beneficial Owner if such first mentioned Person or any of its Affiliates
or
Associates acts with such other Person as a partnership, syndicate or other
group pursuant to any agreement, arrangement or understanding for the purpose
of
acquiring, holding, voting or disposing of any shares of capital stock of the
Company; and provided further,
however,
that
(i) no director or officer of the Company, nor any Associate or Affiliate of
any
such director or officer, shall, solely by reason of any or all of such
directors and officers acting in their capacities as such, be deemed for any
purpose hereof, to be the Beneficial Owner of any Voting Shares of which any
other such director or officer (or any Associate or Affiliate thereof) is the
Beneficial Owner (ii) no trustee of an employee stock ownership or similar
plan
of the Company or any Subsidiary ("Employee Plan Trustee") or any Associate
or
Affiliate of any such Trustee, shall, solely by reason of being an Employee
Plan
Trustee or Associate or Affiliate of an Employee Plan Trustee, be deemed for
any
purposes hereof to be the Beneficial Owner of any Voting Shares held by or
under
any such plan.
(c) A
Change
in Control:
shall
be deemed to have occurred if (A) any Person (other than (a) the Company or
any
subsidiary, or (b) any pension, profit sharing, employee stock ownership or
other employee benefit plan of the Company or any subsidiary or any trustee
of
or fiduciary with respect to any such plan when acting in such capacity) is
or
becomes, after the date of this Agreement, the Beneficial Owners of 30% or
more
of the total voting power of the Voting Shares, (B) 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 or
appointment by the Board of Directors or nomination or recommendation for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) 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 (C) 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 Shares of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Shares of the surviving entity) at least 75% of the total
voting power represented by the Voting Shares of the Company or such surviving
entity outstanding, 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 all or substantially all of the Company's assets.
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(d) Claim:
means
any threatened, pending or completed action, suit, arbitration or proceeding,
or
any inquiry or investigation, whether brought by or in the right of the Company
or otherwise, that Indemnitee in good faith reasonably believes might lead
to
the institution of any such action, suit, arbitration or proceeding, whether
civil, criminal, administrative, investigative or other, or any appeal
therefrom.
(e) Equity
Security:
shall
have the meaning given to such term under Rule 3a11-1 of the General Rules
and
Regulations under the Securities Exchange Act of 1934, as in effect on the
date
hereof.
(f) D&O
Insurance:
means
any valid directors' and officers’ liability insurance policy maintained by the
Company for the benefit of the Indemnitee, if any.
(g) Determination:
means a
determination, and Determined
means a
matter which has been determined based on the facts known at the time, by:
(i) a
majority vote of a quorum of disinterested directors, or (ii) if such a quorum
is not obtainable, or even if obtainable, if a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or, in the event
there has been a Change in Control, by the Special Independent Counsel (in
a
written opinion) selected by Indemnitee as set forth in Section 6, or (iii)
a
majority of the disinterested stockholders of the Company, or (iv) a final
adjudication by a court of competent jurisdiction.
(h) Excluded
Claim:
means
any payment for Losses or Expenses in connection with any Claim: (i) based
or
attributable to Indemnitee personally gaining in fact any financial profit
or
other advantage to which Indemnitee is not legally entitled; or (ii) for the
return by Indemnitee of any remuneration paid to Indemnitee without the previous
approval of the stockholders of the Company which is illegal; or (iii) for
an
accounting of profits in fact made from the purchase or sale by Indemnitee
of
securities of the Company within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, or similar provisions of any state law; or
(iv) resulting from Indemnitee's knowingly fraudulent, dishonest or willful
misconduct; or (v) resulting from the Indemnitee’s bad faith or as a result of
active and deliberate dishonesty which was material to the adjudicated cause
of
action or (vi) the payment of which by the Company under this Agreement is
not
permitted by applicable law.
(i) Expenses:
means
any reasonable expenses incurred by Indemnitee as a result of a Claim or Claims
made against Indemnitee for Indemnifiable Events including, without limitation,
reasonable attorneys' fees and all other costs, expenses and obligations paid
or
incurred in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, be a witness
in
or participate in any Claim relating to any Indemnifiable Event.
(j) Fines:
means
any fine, penalty or, with respect to an employee benefit plan, any excise
tax
or penalty assessed with respect thereto.
(k) Indemnifiable
Event:
means
any event or occurrence, occurring prior to or after the date of this Agreement,
related to the fact that Indemnitee is, was or has agreed to serve as, a
director or officer of the Company, or is or was serving at the request of
the
Company as a director, officer, employee, consultant, trustee, agent or
fiduciary of another corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or not done
by
Indemnitee, including, but not limited to, any breach of duty, neglect, error,
misstatement, misleading statement, omission, or other act done or wrongfully
attempted by Indemnitee, or any of the foregoing alleged by any claimant, in
any
such capacity.
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(l) Losses:
means
any amounts or sums which Indemnitee is legally obligated to pay as a result
of
a Claim or Claims made against Indemnitee for Indemnifiable Events including,
without limitation, damages, judgments and sums or amounts paid in settlement
of
a Claim or Claims, and Fines.
(m) Person:
means
any individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
(n) Potential
Change in Control:
shall
be deemed to have occurred if (A) the Company, enters into an agreement, the
consummation of which would result in the occurrence of a Change in Control;
or
(B) the Board of Directors adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
(o) Relative:
means a
Person's spouse, parents, children, siblings, mother- and father-in-law, sons-
and daughters-in-law, and brothers- and sisters-in-law.
(p) Reviewing
Party:
means
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
(including the Special Independent Counsel referred to in Section 6) who is
not
a party to the particular Claim for which Indemnitee is seeking
indemnification.
(q) Subsidiary:
means
any corporation of which a majority of any class of Equity Security is owned,
directly or indirectly, by the Company.
(r) Trust:
means
the trust established pursuant to Section 7 hereof.
(s) Voting
Shares:
means
any issued and outstanding shares of capital stock of the Company entitled
to
vote generally in the election of directors.
2. Basic
Indemnification Agreement.
In
consideration of, and as an inducement to, the Indemnitee rendering valuable
services to the Company, the Company agrees that in the event Indemnitee 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, a Claim by reason of (or
arising in part out of) an Indemnifiable Event, the Company will indemnify
Indemnitee to the fullest extent authorized by law, against any and all Losses
and Expenses (including all interest, assessments and other charges paid or
payable in connection with or in respect of such Losses and Expenses) of such
Claim, whether or not such Claim proceeds to judgment or is settled or otherwise
is brought to a final disposition, subject in each case, to the further
provisions of this Agreement.
3. Limitations
on Indemnification.
Notwithstanding the provisions of Section 2, Indemnitee shall not be indemnified
and held harmless from any Losses or Expenses (a) which have been Determined,
as
provided herein, to constitute an Excluded Claim; (b) indemnifiable hereunder
if
and to the extent that Indemnitee has actually received payment in connection
with such Losses and Expenses pursuant to the Certificate of Incorporation,
By-laws, D&O Insurance or otherwise; or (c) other than pursuant to the last
sentence of Section 4(d) or Section 14, in connection with any claim or
proceeding initiated by Indemnitee, or brought or made by Indemnitee against
the
Company or any director or officer of the Company, unless the Company has joined
in or the Board of Directors has authorized such claim or
proceeding.
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(a) Promptly
after receipt by Indemnitee of notice of any Claim, Indemnitee shall, if
indemnification with respect thereto may be sought from the Company under this
Agreement, notify the Company of the commencement thereof; provided,
however,
that
the failure to give such notice promptly shall not affect or limit the Company's
obligations with respect to the matters described in the notice of such Claim,
except to the extent that the Company is prejudiced thereby. Indemnitee agrees,
further, not to make any admission or effect any settlement with respect to
such
Claim without the consent of the Company, except any Claim with respect to
which
the Indemnitee has undertaken the defense in accordance with the second to
last
sentence of Section 4(d).
(b) If,
at
the time of the receipt of such notice, the Company has D&O Insurance in
effect, the Company shall give prompt notice of the commencement of any 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 Indemnitee, all Losses and Expenses
payable as a result of such Claim.
(c) The
Company shall be obligated to pay the Expenses of any Claim in advance of the
final disposition thereof and the Company, if appropriate, shall be entitled
to
assume the defense of such Claim, with counsel reasonably satisfactory to
Indemnitee, upon the delivery to Indemnitee of reasonable written notice of
its
election to do so. After delivery of such notice, the Company will not be liable
to Indemnitee under this Agreement for any legal or other Expenses subsequently
incurred by Indemnitee in connection with such defense other than reasonable
Expenses of investigation; provided that
Indemnitee shall have the right to employ its counsel in such Claim but the
fees
and expenses of such counsel incurred after delivery of notice from the Company
of its assumption of such defense shall be at the Indemnitee's expense;
provided further
that if:
(i) the employment of counsel by Indemnitee has been previously authorized
by
the Company, (ii) Indemnitee shall have reasonably concluded that there will
be
a conflict of interest between the Company and Indemnitee in the conduct of
any
such defense, or (iii) the Company shall not, in fact, have employed counsel
to
assume the defense of such action, the reasonable fees and expenses of counsel
shall be at the expense of the Company.
(d) All
payments on account of the Company's indemnification obligations under this
Agreement shall be made within sixty (60) days of Indemnitee's written request
therefor unless a Determination is made that the Claims giving rise to
Indemnitee's request are Excluded Claims or otherwise not payable under this
Agreement, provided that
all
payments on account of the Company's obligation to pay Expenses under Section
4(c) of this Agreement prior to the final disposition of any Claim shall be
made
within 30 days of Indemnitee's written request therefor and such obligation
shall not be subject to any such Determination but shall be subject to Section
4(e) of this Agreement. Notwithstanding the foregoing, such sixty (60) day
period may be extended for a reasonable time, not to exceed an additional thirty
(30) days, if the Person making the Determination with respect to entitlement
to
indemnification in good faith requires such additional time for the obtaining
or
evaluating of documentation and/or information relating thereto. In the event
the Company takes the position that Indemnitee is not entitled to
indemnification in connection with the proposed settlement of any Claim,
Indemnitee shall have the right at his own expense to undertake defense of
any
such Claim, insofar as such proceeding involves Claims against the Indemnitee,
by written notice given to the Company within 10 days after the Company has
notified Indemnitee in writing of its contention that Indemnitee is not entitled
to indemnification; provided,
however,
that
the failure to give such notice within such 10-day period shall not affect
or
limit the Company's obligations with respect to any such Claim if such Claim
is
subsequently determined not to be an Excluded Claim or otherwise to be payable
under this Agreement, except to the extent that the Company is prejudiced
thereby. If it is subsequently determined in connection with such proceeding
that the Indemnifiable Events are not Excluded Claims and that Indemnitee,
therefore, is entitled to be indemnified under the provisions of Section 2
hereof, the Company shall promptly indemnify Indemnitee.
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(e) Indemnitee
hereby expressly undertakes and agrees to reimburse the Company for all Losses
and Expenses paid by the Company in connection with any Claim against Indemnitee
in the event and only to the extent that a Determination shall have been made
by
a court of competent jurisdiction in a decision from which there is no further
right to appeal that Indemnitee is not entitled to be indemnified by the Company
for such Losses and Expenses because the Claim is an Excluded Claim or because
Indemnitee is otherwise not entitled to payment under this
Agreement.
(f) In
connection with any Determination as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
(g) Indemnitee
hereby expressly undertakes and agrees to (i) notify (and deliver to, as
applicable) the Company in writing of any and all information or documents
relating to any Claim or matter which may entitle Indemnitee to indemnification
for Losses or Expenses under this Agreement; and (ii) to notify the Company
in
writing of any and all developments relating to any Claim to which the Company
has notified Indemnitee in writing pursuant to the terms of Section 4(d) herein
of its contention that Indemnitee is not entitled to indemnification under
this
Agreement.
5. Settlement.
The
Company shall have no obligation to indemnify Indemnitee under this Agreement
for any amounts paid in settlement of any Claim effected without the Company's
prior written consent. The Company shall not settle any Claim in which it takes
the position that Indemnitee is not entitled to indemnification in connection
with such settlement without the consent of Indemnitee, nor shall the Company
settle any Claim in any manner which would impose any Fine or any obligation
on
Indemnitee, without Indemnitee's written consent. Neither the Company nor
Indemnitee shall unreasonably withhold its or his consent to any proposed
settlement.
6. Change
in Control; Extraordinary Transactions.
The
Company and Indemnitee agree that if there is a Change in Control 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 all Determinations thereafter with respect to the rights
of
Indemnitee to be paid Losses and Expenses under this Agreement shall be made
only by a special independent counsel (the "Special Independent Counsel")
selected by Indemnitee and approved by the Company (which approval shall not
be
unreasonably withheld) or by a court of competent jurisdiction. The Company
shall pay the reasonable fees of such Special Independent Counsel and shall
indemnify such Special Independent Counsel against any and all reasonable
expenses (including reasonable attorneys' fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant
hereto.
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The
Company covenants and agrees that, in the event of a Change in Control of the
type described in clause (C) of Section 1(c), the Company will use its best
efforts (a) to have the obligations of the Company under this Agreement
including, but not limited to, those under Section 7, expressly assumed by
the
surviving, purchasing or succeeding entity, or (b) otherwise adequately to
provide for the satisfaction of the Company's obligations under this Agreement,
in a manner reasonably acceptable to the Indemnitee.
7. Establishment
of Trust.
In the
event of a Potential Change in Control, the Company shall, upon written request
by Indemnitee, create a trust (the "Trust") for the benefit of Indemnitee and
from time to time upon written request of Indemnitee shall fund the Trust in
an
amount sufficient to satisfy any and all Losses and Expenses which are actually
paid or which Indemnitee reasonably determines from time to time may be payable
by the Company under this Agreement. The amount or amounts to be deposited
in
the Trust pursuant to the foregoing funding obligation shall be determined
by
the Reviewing Party, in any case in which the Special Independent Counsel is
involved. The terms of the Trust shall provide that upon a Change in Control:
(i) the Trust shall not be revoked or the principal thereof invaded without
the
written consent of Indemnitee; (ii) the trustee of the Trust shall advance,
within 20 days of a request by Indemnitee, any and all Expenses to Indemnitee
(and Indemnitee hereby agrees to reimburse the Trust under the circumstances
under which Indemnitee would be required to reimburse the Company under Section
4(e) of this Agreement); (iii) the Company shall continue to fund the Trust
from
time to time in accordance with the funding obligations set forth above; (iv)
the trustee of the Trust shall promptly pay to Indemnitee all Losses and
Expenses for which Indemnitee shall be entitled to indemnification pursuant
to
this Agreement; and (v) all unexpended funds in the Trust shall revert to the
Company upon a final determination by a court of competent jurisdiction in
a
final decision from which there is no further right of appeal that Indemnitee
has been fully indemnified under the terms of this Agreement. The trustee of
the
Trust shall be chosen by Indemnitee and shall be approved by the Company, which
approval shall not be unreasonably withheld.
8. No
Presumption.
For
purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon
a
plea of nolo contendere,
or its
equivalent, shall not, of itself, create a presumption that 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.
9. Non-exclusivity,
Etc.
The
rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Certificate of Incorporation, the By-laws, the
General Corporation Law of the State of Delaware, any vote of stockholders
or
disinterested directors or otherwise, both as to action in Indemnitee's official
capacity and as to action in any other capacity by holding such office, and
shall continue after Indemnitee ceases to serve the Company as a director,
officer, employee, or consultant for so long as Indemnitee shall be subject
to
any Claim by reason of (or arising in part out of) an Indemnifiable Event.
To
the extent that a change in the General Corporation Law of the State of Delaware
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Certificate of
Incorporation, the By-laws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change.
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10. Liability
Insurance.
To the
extent the Company maintains an insurance policy or policies providing D&O
Insurance, Indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for
any
director of the Company.
11. 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 Indemnitee who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.
12. Partial
Indemnity, Etc.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Losses and Expenses of a Claim
but
not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee
is
entitled. Moreover, notwithstanding any other provision of this Agreement,
to
the extent that Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to any Indemnifiable
Event or in defense of any issue or matter therein, including dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
13. Liability
of Company.
Indemnitee agrees that neither the stockholders nor the directors nor any
officer, employee, consultant, representative or agent of the Company shall
be
personally liable for the satisfaction of the Company's obligations under this
Agreement and Indemnitee shall look solely to the assets of the Company for
satisfaction of any claims hereunder.
14. Enforcement.
(a)
Indemnitee's right to indemnification and other rights under this Agreement
shall be specifically enforceable by Indemnitee only in the Chancery Court
of
the State of Delaware (the "Delaware Court") and shall be enforceable
notwithstanding any adverse Determination by the Company's Board of Directors,
independent legal counsel, the Special Independent Counsel or the Company's
stockholders and no such Determination shall create a presumption that
Indemnitee is not entitled to be indemnified hereunder. In any such action
the
Company shall have the burden of proving that indemnification is not required
under this Agreement.
(b) In
the
event that any action is instituted by Indemnitee under this Agreement, or
to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and reasonable expenses, including
reasonable counsel fees, incurred by Indemnitee with respect to such action,
unless the court determines that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous.
15. Severability.
In the
event that any provision of this Agreement is determined by a court to require
the Company to do or to fail to do an act which is in violation of applicable
law, such provision (including any provision within a single section, paragraph
or sentence) shall be limited or modified in its application to the minimum
extent necessary to avoid a violation of law, and, as so limited or modified,
such provision and the balance of this Agreement shall be enforceable in
accordance with their terms to the fullest extent permitted by law.
16. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware applicable to agreements made and to be performed entirely
within such State.
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17. Consent
to Jurisdiction.
The
Company and Indemnitee each hereby irrevocably and unconditionally (i) agree
that any action or proceeding arising out of or in connection with this
Agreement shall be brought only in the Delaware Court, and not in any other
state or federal court in the United States of America or any court in any
other
country, (ii) consent to submit to the exclusive jurisdiction of the Delaware
Court for purposes of any action or proceeding arising out of or in connection
with this Agreement, (iii) waive any objection to the laying of venue of any
such action or proceeding in the Delaware Court, and (iv) waive, and agree
not
to plead or to make, any claim that any such action or proceeding brought in
the
Delaware Court has been brought in an improper or inconvenient
forum.
18. Notices.
All
notices or other communications required or permitted hereunder shall be
sufficiently given for all purposes if in writing and personally delivered
or
sent by registered or certified mail, return receipt requested, with postage
prepaid addressed as follows, or to such other address as the parties shall
have
given notice of pursuant hereto:
(a) If
to the
Company, to:
Xxxxxx,
Inc.
000
Xxxxxxx Xxxx
Xxxx
Xxxx, Xxx Xxxx 00000
Attn:
President
With
a
copy to:
Xxxx
Xxxxxxx, P.C.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxxxx, Esq.
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(b) If
to
Indemnitee, to:
19. Counterparts.
This
Agreement may be signed in counterparts, each of which shall be an original
and
all of which, when taken together, shall constitute one and the same
instrument.
20. Successors
and Assigns.
This
Agreement shall be (i) binding upon all successors and assigns of the Company,
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, and (ii) binding upon and inure to the benefit of any successors and
assigns, heirs, and personal or legal representatives of
Indemnitee.
21. Amendment;
Waiver.
No
amendment, modification, termination or cancellation of this Agreement shall
be
effective unless made in a writing signed by each 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 provision hereof (whether or not similar)
nor
shall such waiver constitute a continuing waiver.
IN
WITNESS WHEREOF,
the
Company and Indemnitee have executed this Agreement as of the day and year
first
above written.
XXXXXX,
INC.
By:___________________________
Name:
Title:
______________________________________
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