EXHIBIT 10.30
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INDEMNITY AGREEMENT
This Agreement made and entered into by and between PalWeb Corporation, a
Delaware corporation (hereinafter the "Company") and _______________________, an
officer and Director of the Company (hereinafter, together with his heirs,
personal representatives, and estate, the "Indemnitee" or "claimant").
WITNESSETH: THAT
WHEREAS, Section 145 ("Section 145") of the General Corporation Law of the
State of Delaware ("Delaware Law") empowers corporations to indemnify a person
serving as a director, officer, employee, or agent of the corporation or a
person who serves at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust or
other enterprise, and further specifies that the indemnification set forth in
Section 145 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise; and Section 145 further
empowers a corporation to purchase and maintain insurance on behalf of any such
persons against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
Section 145; and
WHEREAS, the Board of Directors has concluded that the Company's directors
and officers should be provided with maximum protection in order to insure that
the most capable persons otherwise available will remain in, and in the future
be attracted to, such directorships and, furthermore, that it is fair,
reasonable, prudent and necessary for the Company to contractually obligate
itself to indemnify present and future directors and officers of the Company and
their respective estates in a reasonable and adequate manner and that the
Company assume for itself the responsibility and liability for expenses and
damages in connection with claims brought whether on account of any prior,
present or future alleged act, omission, injury, damage, or event; and
WHEREAS, the Company desires to have the Indemnitee serve or continue to
serve as director and/or officer of the Company or its Affiliates free from
undue concern for damages by reason of his decisions or actions on its behalf;
and the Indemnitee desires to serve, or to continue to serve, provided that he
is furnished the indemnity provided for hereinafter, as a director and/or
officer of the Company or its Affiliates.
NOW, THEREFORE, in consideration of the mutually dependent covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. Agreement to Serve; Definitions.
1.1. Agreement to Serve. The Indemnitee will serve, and/or continue to
serve, the Company as a director and/or officer so long as he is duly elected
and qualified in accordance with the provisions of the By-laws thereof or until
such time as he resigns or is removed.
1.2. Definitions. Unless the context otherwise clearly indicates to the
contrary, the following terms as used herein shall have the respective meanings
set forth below:
(a) "Affiliate" shall mean any corporation, partnership, or other
enterprise which controls, is controlled by, or is under common control with the
Company; provided, that any corporation, partnership, or other enterprise which
is at least 30% beneficially owned by the Company or any corporation which owns
at least 51% of the Company shall be deemed an "Affiliate" of the Company.
(b) "Change in Control" shall be deemed to have occurred if (i) any
"person" (as such term is 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 any 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,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly of securities of the Company representing 20% or more of
the total voting power represented by the Company's then outstanding Voting
Securities (other than any Person or group who own such 20% on the date hereof),
or (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 (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 (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 51% 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 (in one transaction or a series of transactions) of
all or substantially all the Company's assets.
(c) "Expenses" shall include attorneys' fees and all other costs,
travel expenses, fees of experts, transcript costs, filing fees, witness fees,
telephone and telefacsimile charges, postage, delivery service fees, expenses
and obligations of any nature whatsoever 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.
(d) "Indemnifiable Event" shall mean any event or occurrence that
takes place either prior to or after the execution of this Agreement related to
the fact that the Indemnitee is or was a director, officer, employee, trustee,
agent or fiduciary of the Company, or is or was serving at the request of the
Company as a director, officer, employee, trustee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, or related to a claim, or by reason of anything done or not done by
the Indemnitee in any such capacity.
(e) "Independent Directors" shall mean the Company's directors
exclusive of any director who is the Indemnitee.
(f) "Independent Legal Counsel" shall mean an attorney, who shall not
have otherwise performed services for the Company or the Indemnitee within the
last five years (other than in connection with seeking indemnification under
this Agreement). Independent Legal Counsel shall not be any person who, under
the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or the Indemnitee in an
action to determine the Indemnitee's rights under this Agreement, nor shall
independent Legal Counsel be any person who has been sanctioned or censured for
ethical violations of applicable standards of professional conduct.
(g) "Non-governmental" shall refer to any Person which is not (i) the
government of the United States of America or of any state, district, territory,
or possession thereof or of any county, parish, city, town, township, or
municipality within any such state, district, territory or possession, or (ii)
any agency, tribunal, council, instrumentality or public body established by any
Person described in (i).
(h) "Person" means any one (or more) individual or natural person or
any one (or more) corporation, firm, joint venture, partnership, proprietorship,
business venture, government, governmental body, agency or instrumentality,
estate, trust, association, or other legal entity whatsoever or a group of same.
(i) "Policy" shall refer to any insurance policy or coverage obtained
with respect to potential liabilities of directors and officers of the Company.
(j) "Potential Change in Control" shall be deemed to have occurred if
(i) the Company enters into an agreement or arrangement, the consummation of
which would result in the occurrence of a Change in Control; (ii) any person
(including the Company) publicly announces an intention to take or to consider
taking actions which if consummated would constitute a Change in Control; (iii)
any person, other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company acting in such capacity 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,
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 on
the date hereof; or (iv) the Board adopt a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(k) "Voting Securities" shall mean any securities of the Company which
vote generally in the election of directors.
2. Indemnification. Subject to the provisions of Section 8 and 9, the Company
shall indemnify the Indemnitee as follows:
2.1. Obligation to Indemnify. The Company will pay on behalf of the
Indemnitee, and his executors, administrators and heirs, any amount which he is
or becomes legally obligated to pay because of (i) any claim or claims from time
to time threatened or made against him by any Person because of any act or
omission or neglect or breach of duty, including any actual or alleged error or
misstatement or misleading statement, which he commits or suffers while acting
in his capacity as a director and/or officer of the Company or an Affiliate or
(ii) being a party, or being threatened to be made a party, to any threatened,
pending, or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that he is or was an
officer, director, employee, or agent of the Company or an Affiliate or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise. The payments which the Company will be obligated to make hereunder
shall include without limitation, damages, charges, judgments, fines, penalties,
settlements and costs, cost of investigation and costs of defense of legal or
equitable or criminal actions, claims or proceedings and appeals therefrom, and
costs of attachment, supersedeas, bail, surety or other bonds.
2.2. Failure to Timely Pay. If a claim under this Agreement is not paid
by the Company, or on its behalf, within sixty (60) days after a written claim
has been received by the Company, the Indemnitee may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim and, if
successful in whole or in part, the Indemnitee shall be entitled to be paid also
the expense (including reasonable attorney's fees) of prosecuting such claim.
2.3. Notice of Claim. The Indemnitee shall give to the Company notice
in writing as soon as practicable of any claim made against him for which
indemnity may be sought and will further notify and cooperate with the Company
in the selection of counsel and in the occurrence of costs and expenses in
defending or investigating any claim for which indemnity may be sought
hereunder. The Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within the Indemnitee's
power.
3. Assumption of Liability by Company. If the Indemnitee is deceased and is
entitled to indemnification under any provision of this Agreement, the Company
shall indemnify the Indemnitee's estate and his spouse, heirs, administrators
and executors against, and the Company shall assume any and all costs, charges,
and expenses (including attorneys' fees), penalties and fines actually and
reasonably incurred by or for the Indemnitee or his estate, in connection with
the investigation, defense, settlement or appeal of any such action, suit or
proceeding. Further, when requested in writing by the spouse of the Indemnitee,
and/or the heirs, executors or administrators of the Indemnitee's estate, the
Company shall provide appropriate evidence of the Company's agreement set out
herein to indemnify the Indemnitee and to assume itself such costs, charges,
liabilities and expenses.
4. Partial Indemnification. If the Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
cost, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in the
investigation, defense, appeal or settlement of such suit, action or proceeding
but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee as to the portion thereof to which the
Indemnitee is entitled.
5. Determination of Right to Indemnification. Anything contained elsewhere
herein to the contrary notwithstanding, any indemnification under the terms of
this Agreement shall (unless ordered by a court) be paid by the Company promptly
or in any event within 60 days of written request therefor, unless a
determination is made, as hereinafter provided, that indemnification is not
proper in the circumstances because of the provisions of Sections 8 or 9.
The determination as to whether or not the Indemnitee has met the standard
of conduct required to qualify and entitle him, partially or fully, to
indemnification under the provisions of any provision of Section 2 hereof may be
made (i) either by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties of such action, suit or proceeding;
or (ii) by legal counsel (who may be the outside counsel regularly employed by
the Company); provided that the manner in which (and, if applicable, the counsel
by which) the right to indemnification is to be determined shall be approved in
advance in writing by both the highest ranking executive officer of the Company
who is not party to such action (sometimes hereinafter referred to as "Senior
Officer") and by the Indemnitee. In the event that such parties are unable to
agree on the manner in which the determination of the right to indemnity is to
be made, such determination may be made by Independent Legal Counsel retained by
the Company especially for such purpose; provided that such Independent Legal
Counsel shall be approved in advance in writing by both the Senior Officer and
the Indemnitee. The fees and expenses of Independent Legal Counsel in connection
with making the determination contemplated hereunder shall be paid by the
Company, and if requested by such Independent Legal Counsel, the Company shall
give such Independent Legal Counsel an appropriate written agreement with
respect to the payment of their fees and expenses and such other matters as may
reasonably requested by counsel.
Notwithstanding the foregoing, the Indemnitee may, either before or within
two (2) years after a determination has been made as provided above, petition
the District Court of Delaware or any other court of competent jurisdiction to
determine whether the Indemnitee is entitled to indemnification under the
provisions hereof under which he claims the right to indemnification, and such
court shall thereupon have the exclusive authority to make such determination
unless and until such court dismisses or otherwise terminates such action
without having made such determination. The court shall, as petitioned, make an
independent determination of whether the Indemnitee is entitled to
indemnification as provided hereunder, irrespective of any prior determination
made by the Board of Directors, the stockholders or counsel. If the court shall
determine that the Indemnitee is entitled to indemnification hereunder as to any
claim, issue or matter involved in the action, suit or proceeding with respect
to which there has been no prior determination pursuant hereto or with respect
to which there has been a prior determination pursuant hereto that the
Indemnitee was not entitled to indemnification hereunder, the Company shall pay
all expenses (including attorneys' fees) actually incurred by the Indemnitee in
connection with such judicial determination.
If the Person (including the Board of Directors, Independent Legal Counsel,
the stockholders or a court) making the determination hereunder shall determine
that the Indemnitee is entitled to indemnification as to some claims, issues or
matters involved in the action, suit or proceeding but not as to others, such
Person shall reasonably prorate the expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement with respect to which
indemnification is sought by the Indemnitee among such claims, issues or
matters.
If, and to the extent that, it is finally determined hereunder that the
Indemnitee is not entitled to indemnification, then the Indemnitee agrees to
reimburse the Company for all expenses advanced or prepaid hereunder, or the
proper proportion thereof, other than the expenses of obtaining the judicial
determination referred to above.
6. Advances of Cost, Charges, and Expenses. The cost, charges, and expenses
incurred by the Indemnitee in investigating, defending, or appealing any
threatened, pending or completed civil of criminal action, suit or proceeding
(administrative or investigative) covered hereunder, shall be paid by the
Company in advance (unless, in the opinion of regular outside counsel to the
company, the provisions of Section 8 or 9 preclude such advance payment) all
with the understanding and agreement hereby made and entered into by the
Indemnitee and the Company, that in the event it shall ultimately be determined
as provided hereunder that the Indemnitee was not entitled to be indemnified, or
was not entitled to be fully indemnified, that the Indemnitee shall repay to the
Company such amount, or the appropriate portion thereof, so paid or advanced.
7. Other Rights and Remedies. The indemnification and advance payment of
expenses as provided by any provision of the Agreement shall not be deemed
exclusive or any other rights to which the Indemnitee may be entitled under any
provision of law, any Policy (as an insured thereunder), the Company's
Certificate of Incorporation, any By-law, this or any other agreement, vote of
stockholders or disinterested directors, or otherwise, as to action in his
official capacity, and shall continue after the Indemnitee has ceased to occupy
such position and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee.
8. Construction.
8.1 Contractual Liability. This Agreement shall not be construed so as
to give rise to a "contractual liability" which is excluded by any Policy. Each
and every term hereof is enforceable by the Indemnitee solely as to amounts (a)
in excess of the limits of the Policy with respect to costs, charges and
expenses (including attorney's fees), judgments, fines, penalties and amounts
paid in settlement for which coverage is in effect under the Policy and (b) used
under the Policy as a "deductible" amount and (c) which none of the Policy and
the other liability insurance policies of the Company clearly covers for the
Indemnitee as Insured thereunder; however, in any case in which the Company
believes the Policy or its other insurance should cover a loss, cost or expense,
the Company may make a contingent advance of monies pursuant to the terms hereof
without admission, waiver of prejudice to its position that the Policy or the
Company's other insurance covers the loss, cost or expense. In amplification and
clarification but not in limitation hereof, it is the intent of the Company that
this Agreement operate as "excess coverage" above the Policy and other
applicable insurance limits and that it operate as "first dollar" coverage in
all matters which are outside the scope of the Policy or within the deductibles
of the Policy and all other insurance maintained by the Company from time to
time, except as to the exclusions set forth in Section 9.
In amplification but not in limitation of the foregoing, there is hereby
expressly included "first dollar" coverage with respect to the following matters
if considered by the Policy to be exclusions:
(1) any act or omission in connection with the acquisition or assumption
by Affiliates or the Company of the stock, assets and/or business of other
corporations by merger, purchase of assets or otherwise;
(2) liabilities and expenses based on or arising out of any action, suit
or proceeding by a Non-governmental Person involving the Racketeer Influenced
and Corrupt Organizations Act. 18 U.S. C. 1961 et seq.; and
(3) any act or omission the sole applicable exclusion for which by the
Policy is on account of either (i) lack of appropriate notice, (ii) the
existence of prior insurance, (iii) the timing of the occurrence and the claim,
or (iv) other procedural defenses to coverage by the Policy.
9. Exclusions and Limitation. Notwithstanding any thing contained herein to
the contrary:
9.1. The Company shall not be liable to the Indemnitee for, nor obligated
to furnish advances in connection with, any loss, cost or expense of Indemnitee
resulting from his willful or negligent violation of the Foreign Corrupt
Practices Act of 1977.
9.2. The Company shall not be liable to the Indemnitee for, and shall not
be obligated to furnish any advances except for repayable costs, charges and
expenses as hereinabove stated, in connection with, any loss, cost or expense of
the Indemnitee as the direct result of a final judgment for money damages
payable to the Company or any Affiliate for or on account of loss, cost of
expense directly of indirectly resulting from the Indemnitee's negligence or
misconduct in actions described in Section 145 of Delaware Law.
9.3. Unless otherwise allowed by a court of competent jurisdiction or in a
separate action in the District Court of Delaware, the Company shall not be
liable to the Indemnitee for, and the Indemnitee undertakes to repay the Company
for all advances which may have been made of, expenses of investigation, defense
or appeal of any matter the judgment of which is excluded under subsection 9.2
next above.
9.4. Unless otherwise determined by a court of competent jurisdiction or in
a separate action in the District Court of Delaware, a settlement of any suit,
action or proceeding shall be presumed to be an "expense" in mitigation of the
expenses of continued litigation and not the compromise of a judgment on the
merits of the action, suit or proceeding.
9.5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors of
the Company pursuant to foregoing provisions, or otherwise, the Board of
Directors has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director and/or officer of the Company in the
wholly or partially successful defense of any action, suit or proceeding) is
asserted by the Indemnitee in connection with Company securities which have been
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it hereunder is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue. In effect, therefore, absent a court
decision in the individual case or controlling precedent, the provisions of the
Agreement will not apply to liabilities of the Indemnitee arising under the
Securities Act unless and only to the extent that the Indemnitee is successful
in the defense of the action, suit or proceeding in question.
9.6. The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against the Indemnitee:
(a) based upon or attributable to the Indemnitee or any member of his
immediate family gaining in fact any personal profit or advantage to which he
was not legally entitled;
(b) based upon or attributable to the dishonesty of the Indemnitee
seeking payment hereunder; provided that the Indemnitee shall be protected under
this Agreement as to any claims upon which suit may be brought against him by
reason of any alleged dishonesty on his part, unless a judgment or other final
adjudication thereof adverse to the Indemnitee shall establish that he committed
acts of active and deliberate dishonesty, with actual dishonest purpose or
intent, which acts were material to the cause of action so adjudicated;
(c) for bodily injury, sickness, disease or death of any person, or
damage to or destruction of any tangible property; including loss of use
thereof; or
(d) for which indemnification under this Agreement is determined by a
final adjudication of a court of competent jurisdiction to be unlawful and
violative of public policy.
10. Change in Control. The Company agrees 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 Independent Legal Counsel shall be
selected by the Indemnitee and approved by the Company (which approval shall not
be unreasonably withheld) and such Independent Legal Counsel shall determine
whether the officer or director is entitled to indemnity payments and expense
advances under this Agreement or any other agreement or Certificate of
Incorporation or Bylaws of the Company now or hereafter in effect relating to
claims for Indemnifiable Events. Such Independent Legal Counsel, among other
things, shall render it written opinion to the Company and the Indemnitee as to
whether and to what extent the Indemnitee will be permitted to be indemnified.
The Company agrees to pay the reasonable fees of the Independent Legal Counsel
and to indemnify fully such Independent Legal Counsel against any and all
expenses (including attorneys' fees), claims, liabilities and damages arising
out of or relating to this Agreement or the engagement of Independent Legal
Counsel pursuant hereto.
11. Establishment of Trust. In the event of a Potential Change in Control, the
Company shall, upon written request by the Indemnitee, create a trust for the
benefit of the Indemnitee, shall fund such trust in a amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each such
request to be incurred in connection with investigating, preparing for and
defending any claim relating to an Indemnifiable Event, and any and all
judgments, fines, penalties and settlement amounts of any and all claims
relation to an Indemnifiable Event from time to time actually paid or claimed,
reasonably anticipated or proposed to be paid. The amount or amounts to be
deposited in the trust pursuant to the foregoing funding obligation shall be
determined by a majority vote of a quorum of the Independent Directors. 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 the Indemnitee, (ii) the trustee shall advance, within five business
days of a request by the Indemnitee, any and all expenses to the Indemnitee (and
the Indemnitee hereby agrees to reimburse the trust under the circumstances
under which the Indemnitee would be required to reimburse the Company under this
Agreement, (iii) the trust shall continue to be funded by the Company in
accordance with the funding obligation set forth above, (iv) the trustee shall
promptly pay to the Indemnitee all amounts for which the Indemnitee shall be
entitled to indemnification pursuant to this Agreement or otherwise, and (v) all
unexpended funds in such trust shall revert to the Company upon a final
determination by the Independent Directors or a court of competent jurisdiction,
as the case may be, that the Indemnitee has been fully indemnified under the
terms of this Agreement. The trustee shall be chosen by the Indemnitee. Nothing
in this Section 11 shall relieve the Company of any of its obligations under
this Agreement. All income earned on the assets held in the trust shall be
reported as income by the Company for federal, state, local and foreign tax
purposes.
12. Non-exclusivity, Etc. The rights of the Indemnitee hereunder shall be in
addition to any other rights the Indemnitee may have under the Certificate of
Incorporation or Bylaws of the Company or the Delaware Law or otherwise. To the
extent that a change in the Delaware Law (whether by statute or judicial
decision) permits greater indemnification by agreement than would be afforded
currently under the Certificate of Incorporation and Bylaws of the Company and
this Agreement, it is the intent of the parties hereto that the Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.
13. No Construction as Employment Agreement. Nothing contained herein shall be
construed as giving the Indemnitee any right to be retained in the employ of the
Company or any of its subsidiaries.
14. Liability Insurance. To the extent the Company maintains a Policy (or
Policies), providing directors' and officers' liability insurance, the
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
company director of officer.
15. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company or any affiliate of
the Company against the Indemnitee, the Indemnitee's spouse, heirs, executors,
administrators 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 or its affiliate 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 period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.
16. 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 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 suits to
enforce such rights.
17. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against the
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any Policy, Certificate of Incorporation or Bylaws of the Company or
otherwise) or the amounts otherwise indemnifiable hereunder.
18. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument, but only one of which
need be produced.
19. Headings. The headings of the Sections 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.
20. Use if Certain Terms. As used in this Agreement, the words "herein,"
"hereof," "hereunder," and other words of similar import refer to this Agreement
as a whole and not to any particular paragraph, subparagraph or other
subdivision.
21. 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.
22. Notice to Company. The Indemnitee agrees to promptly notify Company in
writing upon being served with any summons, subpoena, citation, complaint,
indictment, or other document relating to a suit, action or proceeding which is
or may be covered hereunder, either civil or criminal.
23. 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 by Federal Express or other commercial courier and receipted for by or
on behalf of the party to whom said notice or other communication shall have
been directed or if (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
(a) If to the Indemnitee, to address set forth following the Indemnitee's
signature to this Agreement or to such other address as may have been furnished
to Company by the Indemnitee by like notice;
(b) If to Company, to: Xxxx X. Xxxxxx
Chief Executive Officer
0000 X. XxXxx, Xxx. 000
Xxxxxx, Xxxxxxxx 00000
or to such other address as may have been furnished to the Indemnitee by Company
by like notice.
24. Governing Law. The parties agree that this Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the State of Delaware.
25. Successors and Assigns. This Agreement shall be binding upon Company and
its successors and assigns and shall insure to the benefit of the Indemnitee and
his spouse, heirs, executors, administrators and estate.
26. Effective Date. Irrespective of the date of execution, this Agreement, and
the terms and conditions hereof, shall be deemed to have become and remained
effective and binding upon the parties hereto continuously since January 1,
2001.
27. Partial Invalidity. If any provision or provisions of this Agreement shall
be held to be invalid, illegal, or unenforceable for any reason whatsoever, (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, all portion of any paragraphs of
Section held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or impaired thereby, and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, all portions of
any paragraph of Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that are not themselves invalid, illegal
of unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
IN WITNESS WHEREOF, the Company has executed this Agreement by its duly
authorized officers, and the Indemnitee has set his hand and seal hereto, on
this day of , 2002.
PALWEB CORPORATION, an Oklahoma corporation
By:
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Xxxx X. Xxxxxx, Chief Executive Officer
INDEMNITEE:
Name:
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Address:
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