INDEMNITY AGREEMENT
This Indemnity Agreement (the "Agreement") is made as of the ___ day of
_________, 20____ by and between XxxxxXxxxxxxx.xxx, Inc., a Delaware corporation
(the "Company"), and the person whose signature appears at the end of this
Agreement (the "Indemnitee"), an officer and/or director of the Company.
RECITALS
A. The Indemnitee is currently serving as an officer and/or director of
the Company and in such capacity renders valuable services to the Company.
B. Both the Company and the Indemnitee recognize the substantial risk
of litigation against officers and directors of corporations, and the Indemnitee
has indicated that he or she does not regard the indemnification available under
the Company's Bylaws as adequate to protect against legal risks associated with
service to the Company and may be unwilling to continue in office in the absence
of greater protection and indemnification.
C. The Board of Directors of the Company has determined that it is in
the best interests of the Company and its stockholders to induce the Indemnitee
to continue to serve as an officer and/or director and retain the benefits of
his or her experience and skill by entering into this Agreement to provide
protection from potential liabilities which might arise by reason of the fact
that he or she is an officer and/or director of the Company beyond the
protection afforded by Delaware law and the Company's Bylaws.
AGREEMENT
In consideration of the continued services of the Indemnitee and as an
inducement to the Indemnitee to continue to serve as an officer and/or director,
the Company and the Indemnitee do hereby agree as follows:
DEFINITIONS.
As used in this Agreement:
The term "Company' shall include XxxxxXxxxxxxx.xxx, Inc., a Delaware corporation
and any wholly-owned subsidiary.
The term "Expenses" includes, without limitation, attorneys' fees, disbursements
and retainers, accounting and witness fees, travel and deposition costs, any
interest, assessment or other charges, any federal, state, local or foreign
taxes imposed as a result of the actual or deemed receipt of any payments under
this Agreement, any other expense, liability or loss, any amounts paid or to be
paid in settlement by or on behalf of Indemnitee, and any expenses of
establishing a right to indemnification (pursuant to this Agreement or
otherwise), paid or incurred in connection with investigating, defending, being
a witness in, or participating in, or preparing for any of the foregoing in, any
Proceeding relating to an Indemnifiable Event, including reasonable compensation
for time spent by the Indemnitee in connection with the investigation, defense
or appeal of a Proceeding or of an action for indemnification for which he or
she is not otherwise compensated by the Company or any third party. The
Indemnitee shall be deemed to be compensated by the Company or a third party for
time spent in connection with the investigation, defense or appeal of a
Proceeding or an action for Indemnification if, among other things, he or she is
a salaried employee of the Company or such third party and his or her salary is
not reduced in proportion to the time spent in connection with the Proceeding or
action for Indemnification. The term "Expenses" does not include the amount of
judgments, fines, penalties or ERISA excise taxes actually levied against the
Indemnitee.
The term "Indemnifiable Event" shall include any event or occurrence that takes
place either prior to or after the execution of this Agreement, related to the
service of Indemnitee as an officer and/or director of the Company, or his or
her service at the request of the Company as a director, officer, employee,
trustee, agent, or fiduciary of another foreign or domestic corporation,
partnership, joint venture, employee benefit plan, trust, or other enterprise or
related to anything done or not done by Indemnitee in any such capacity, whether
or not the basis of a Proceeding
arising in whole or in part from such Indemnifiable Event is alleged action in
an official capacity as a director, officer, employee, or agent or in any other
capacity while serving as a director, officer, employee, or agent of the Company
or at the request of the Company, as described above, and whether or not he or
she is serving in such capacity at the time any liability or Expenses are
incurred for which indemnification or reimbursement is to be provided under this
Agreement.
The term "Proceeding" shall include (i) any threatened, pending or completed
action, suit or proceeding, whether brought in the name of the Company or
otherwise and whether of a civil, criminal, administrative, investigative or
other nature; and (ii) any inquiry, hearing or investigation, whether or not
conducted by the Company, that Indemnitee in good faith believes might lead to
the institution of any such action, suit or proceeding.
AGREEMENT TO SERVE. The Indemnitee agrees to continue to serve as an officer
and/or director of the Company at the will of the Company for so long as
Indemnitee is duly elected or appointed or until such time as Indemnitee tenders
a resignation in writing; provided, however, that nothing in this Agreement
shall be construed as providing the Indemnitee any right to continued
employment.
INDEMNIFICATION IN THIRD PARTY ACTIONS. In connection with any Proceeding
arising in whole or in part from an Indemnifiable Event (other than a Proceeding
by or in the name of the Company to procure a judgment in its favor), the
Company shall indemnify the Indemnitee against all Expenses and all judgments,
fines, penalties and ERISA excise taxes actually and reasonably incurred by the
Indemnitee in connection with such Proceeding, to the fullest extent permitted
by Delaware law. The Company shall also cooperate fully with Indemnitee and
render such assistance as Indemnitee may reasonably require in the defense of
any Proceeding in which Indemnitee was or is a party or is threatened to be made
a party, and shall make available to Indemnitee and his or her counsel all
information and documents reasonably available to it which relate to the subject
of any such Proceeding.
INDEMNIFICATION IN PROCEEDINGS BY OR IN THE NAME OF THE COMPANY. In any
Proceeding by or in the name of the Company to procure a judgment in its favor
arising in whole or in part from an Indemnifiable Event, the Company shall
indemnify the Indemnitee against all Expenses actually and reasonably incurred
by Indemnitee in connection with such Proceeding, to the fullest extent
permitted by Delaware law.
CONCLUSIVE PRESUMPTION REGARDING STANDARD OF CONDUCT. The Indemnitee shall be
conclusively presumed to have met the relevant standards of conduct as defined
by Delaware law for indemnification pursuant to this Agreement, unless a
determination is made that the Indemnitee has not met such standards by (i) the
Board of Directors of the Company by a majority vote of a quorum thereof
consisting of directors who were not parties to such Proceeding, (ii) the
stockholders of the Company by majority vote, or (iii) in a written opinion by
independent legal counsel, selection of whom has been approved by the Indemnitee
in writing.
INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any other
provisions of this Agreement, to the extent that the Indemnitee has been
successful in defense of any Proceeding or in defense of any claim, issue or
matter therein, on the merits or otherwise, including the dismissal of a
Proceeding without prejudice, the Indemnitee shall be indemnified against all
Expenses incurred in connection therewith to the fullest extent permitted by
Delaware law.
ADVANCES OF EXPENSES. The Expenses incurred by the Indemnitee in any Proceeding
shall be paid promptly by the Company in advance of the final disposition of the
Proceeding at the written request of the Indemnitee to the fullest extent
permitted by Delaware law; provided that if Delaware law in effect at the time
so requires, the Indemnitee shall undertake in writing to repay such amount to
the extent that it is ultimately determined that the Indemnitee is not entitled
to indemnification.
PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties or ERISA excise taxes actually and
reasonably incurred by Indemnitee in the investigation, defense, appeal or
settlement of any Proceeding but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, fines, penalties or ERISA excise taxes to which the
Indemnitee is entitled.
INDEMNIFICATION PROCEDURE; DETERMINATION OF RIGHT TO INDEMNIFICATION.
Promptly after receipt by the Indemnitee of notice of the commencement of any
Proceeding, the Indemnitee will, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company of the commencement
thereof.
If a claim under this Agreement is not paid by the Company within 30 days of
receipt of written notice, the right to indemnification as provided by this
Agreement shall be enforceable by the Indemnitee in any court of competent
jurisdiction. It shall be a defense to any such action (other than an action
brought to enforce a claim for Expenses incurred in defending any Proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been tendered to the Company) that the Indemnitee has failed to
meet a standard of conduct which makes it permissible under Delaware law for the
Company to indemnity the Indemnitee for the amount claimed. The burden of
proving by clear and convincing evidence that indemnification or advances are
not appropriate shall be on the Company. Neither the failure of the directors or
stockholders of the Company or independent legal counsel to have made a
determination prior to the commencement of such action that indemnification or
advances are proper in the circumstances because the Indemnitee has met the
applicable standard of conduct, nor an actual determination by the directors or
stockholders of the Company or independent legal counsel that the Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the Indemnitee has not met the applicable standard of
conduct.
The Indemnitee's Expenses incurred in connection with any Proceeding concerning
Indemnitee's right to indemnification or advances in whole or in part pursuant
to this Agreement shall also be indemnified by the Company regardless of the
outcome of such Proceeding, unless 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.
With respect to any Proceeding for which indemnification is requested, the
Company will be entitled to participate therein at its own expense and, except
as otherwise provided below, to the extent that it may wish, the Company may
assume the defense thereof, with counsel satisfactory to the Indemnitee. After
notice from the Company to the Indemnitee of its election to assume the defense
of a Proceeding, the Company will not be liable to the Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof, other than reasonable costs
of investigation or as otherwise provided below. The Indemnitee shall cooperate
fully with the Company and render such assistance as the Company may reasonably
require in the Company's participation in any such Proceeding and shall make
available to the Company and its counsel all information and documents
reasonably available to Indemnitee which relate to the subject of such
Proceeding. The Company shall not be liable to indemnify the Indemnitee under
this Agreement with regard to any judicial award if the Company was not given a
reasonable and timely opportunity, at its expense. to participate in the defense
of such action; the Company's liability hereunder shall not be excused if
participation in the Proceeding by the Company was barred. The Company shall not
settle any Proceeding in any manner which would impose any penalty or limitation
on the Indemnitee without the Indemnitee's prior written consent. The Indemnitee
shall have the right to employ counsel in any Proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of the Indemnitee,
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Company, (ii) the Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and the Indemnitee in the conduct
of the defense of a Proceeding, or (iii) the Company shall not in fact have
employed counsel to assume the defense of a Proceeding, in each of which cases
the fees and expenses of the Indemnitee's counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Company or as to which the Indemnitee
has made the conclusion that there may be a conflict of interest between the
Company and the Indemnitee.
LIMITATIONS ON INDEMNIFICATION.
No payments pursuant to this Agreement shall be made by the Company:
To indemnify or advance Expenses to the Indemnitee with respect to Proceedings
initiated or brought voluntarily by
the Indemnitee and not by way of defense, except with respect to Proceedings
brought to establish or enforce a right to indemnification under this Agreement
or any other Statute or law or otherwise as required under Delaware law, but
such Indemnification or advancement of Expenses may be provided by the Company
in specific cases if a majority of the Board of Directors finds it to be
appropriate;
To indemnify the Indemnitee for any Expenses, judgments, fines, penalties or
ERISA excise taxes for which the Indemnitee is indemnified by the Company
otherwise than pursuant to this Agreement;
To indemnify the Indemnitee under this Agreement for any amounts paid in
settlement of any Proceeding effected without the Company's written consent;
however, the Company will not unreasonably withhold its consent to any proposed
settlement;
To indemnify the Indemnitee for any Expenses, judgments, fines, penalties or
ERISA excise taxes for which payment is actually made to the Indemnitee under a
valid and collectible insurance policy, except in respect of any excess beyond
the amount of payment under such insurance;
To indemnify the Indemnitee for any Expenses, judgments, fines or penalties
sustained in any Proceeding for an accounting of profits made from the purchase
or sale by Indemnitee of securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934, the rules and regulations
promulgated thereunder and amendments thereto or similar provisions of any
federal, state or local statutory law;
To indemnify the Indemnitee against any Expenses, judgments, fines, penalties or
ERISA excise taxes based upon or attributable to the Indemnitee having been
finally adjudged to have gained any personal profit or advantage to which he or
she was not legally entitled;
To indemnify the Indemnitee for any Expenses, judgments, fines, penalties or
ERISA excise taxes resulting from Indemnitee's conduct which is finally adjudged
to have been willful misconduct, knowingly fraudulent, deliberately dishonest or
in violation of Indemnitee's duty of loyalty to the Company; or
If a court of competent jurisdiction shall finally determine that any
indemnification hereunder is unlawful.
MAINTENANCE OF LIABILITY INSURANCE.
The Company hereby covenants and agrees that, as long as the Indemnitee shall
continue to serve as an officer and/or director of the Company and thereafter so
long as the Indemnitee shall be subject to any possible Proceeding, the Company,
subject to subsection (c), shall promptly obtain and maintain in full force and
effect directors' and officers' liability insurance ("D&O Insurance") in
reasonable amounts from established and reputable insurers.
In all D&O Insurance policies, the Indemnitee shall be named as an insured in
such a manner as to provide the Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company's officers or directors.
Notwithstanding the foregoing, the Company shall have no obligation to obtain or
maintain D&O Insurance if the Company determines in good faith that such
insurance is not reasonably available, the premium costs for such insurance are
disproportionate to the amount of coverage provided, or the coverage provided by
such insurance is so limited by exclusions that it provides an insufficient
benefit.
INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification provided by this
Agreement shall not be deemed to limit or preclude any other rights to which the
Indemnitee may be entitled under the Certificate of Incorporation, the Bylaws,
any agreement, any vote of stockholders or disinterested directors, Delaware
law, or otherwise, both as to action in Indemnitee's official capacity and as to
action in another capacity on behalf of the Company while holding such office.
SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and shall inure to
the benefit of, the Indemnitee and Indemnitee's heirs, personal representatives
and assigns, and the Company and its successors and assigns.
SEPARABILITY. Each provision of this Agreement is a separate and distinct
agreement and Independent of the others, so that if any provision hereof shall
be held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. To the extent required. any provision of this Agreement may
be modified by a court of competent jurisdiction to preserve its validity and to
provide the Indemnitee with the broadest possible indemnification permitted
under Delaware law.
SAVINGS CLAUSE. If this Agreement or any portion hereof be invalidated on any
ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee as to Expenses, judgments, fines, penalties or
ERISA excise taxes with respect to any Proceeding to the full extent permitted
by any applicable portion of this Agreement that shall not have been invalidated
or by any applicable provision of the law of Delaware or the law of any other
jurisdiction.
INTERPRETATION; GOVERNING LAW. This Agreement shall be construed as a whole and
in accordance with its fair meaning. Headings are for convenience only and shall
not be used in construing meaning. This Agreement shall be governed and
interpreted in accordance with the laws of the State of Delaware.
AMENDMENTS. No amendment, waiver, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by the party against
whom enforcement is sought. The Indemnification rights afforded to the
Indemnitee hereby are contract rights and may not be diminished, eliminated or
otherwise affected by amendments to the Company's Certificate of Incorporation,
Bylaws or agreements including D&O Insurance policies.
COUNTERPARTS. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each party and delivered to
the other.
NOTICES. Any notice required to be given under this Agreement shall be directed
to the Company at 0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxx 00000 and to
Indemnitee at the address specified below or to such other address as either
shall designate in writing.
SUBJECT MATTER. The intended purpose of this Agreement is to provide for
Indemnification, and this Agreement is not intended to affect any other aspect
of any relationship between the Indemnitee and the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXXXXXXXX.XXX, INC., by: INDEMNITEE
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Xxxxxx X. Xxxxxxxxx Signature
Its President
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Printed Name
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Address
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City, State ZIP
