Exhibit 10.01
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is entered into as of
_______ __, 200_, by and among ____________________, a __________ corporation
(the "Company") and the undersigned party (the "Indemnitee").
RECITALS
A. Indemnitee, as an officer and/or director of the Company, performs valuable
services in such capacity for the Company.
B. In order to induce the Indemnitee [to continue] to serve as a director
and/or an officer of the Company, the Company has determined and agreed to
enter into this contract with the Indemnitee.
NOW, THEREFORE, in consideration of the Indemnitee's continued service as
an officer and/or director after the date hereof, the parties hereto agree as
follows:
1. Indemnification.
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a. Indemnification of Expenses. The Company shall indemnify and hold
harmless the Indemnitee to the fullest extent permitted by law,
if the 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 the Indemnitee believes might lead to the institution of any
such action, suit, proceeding or alternative dispute resolution
mechanism, whether civil, criminal, administrative, investigative
or other by reason of (or arising in part out of) any event or
occurrence related to the fact that the Indemnitee is or was a
director, officer, employee, agent or fiduciary of the Company,
or any direct or indirect subsidiary of the Company or any direct
or indirect parent of the Company, or is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action or inaction
on the part of the Indemnitee while serving in such capacity
(hereinafter a "Claim") against any and all losses, judgments,
claims, damages, liabilities, amounts paid in settlement (if such
settlement is approved in writing in advance by the Company),
fines (including excise taxes and penalties assessed with respect
to employee benefit plans), penalties (whether civil, criminal or
otherwise) and all interest, assessments and other charges paid
or payable in connection with or in respect of any of the
foregoing (collectively, hereinafter "Losses") and against any
and all expenses (including attorneys' fees and all other costs,
expenses and obligations incurred in connection with
investigating, defending, serving as 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), of such Claim (collectively,
hereinafter "Expenses") and any federal, state, local or foreign
taxes imposed on the Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement. Such payment
of Expenses shall be made by the Company as soon as practicable
but in any event no later than ten (10) business days after (i)
written demand by the Indemnitee therefor is presented to the
Company or (ii) such later date as a determination of entitlement
to indemnification is made in accordance with the provision of
this Agreement.
b. Reviewing Party. Notwithstanding the foregoing, (i) the
obligations of the Company under Section 1(a) shall be subject to
the condition that the Reviewing Party (as described in Section
10(e) hereof) shall have determined (in a written opinion, in any
case in which the Independent Legal Counsel referred to in
Section 10(d) hereof is involved) that the Indemnitee would be
permitted to be indemnified under applicable law or that an
exception described in Section 8 applies, and (ii) the Indemnitee
acknowledges and agrees that the obligation of the Company to
make an advance payment of Expenses to the 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 the Indemnitee would not be permitted to be
so indemnified under applicable law, the Company shall be
entitled to be reimbursed by the Indemnitee (who hereby agrees to
reimburse the Company) for all such amounts theretofore paid;
provided, however, that if the Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that the Indemnitee should
be indemnified under applicable law, any determination made by
the Reviewing Party that the Indemnitee would not be permitted to
be indemnified under applicable law shall not be binding and the
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). The Indemnitee's obligation to
reimburse the Company for any Expense Advance shall be unsecured
and no interest shall be charged thereon. If applicable law
requires, any advancement of Expenses will be made only upon
delivery to the Company of an undertaking, by or on behalf of
Indemnitee, to repay such Expenses if it is ultimately
determined, by a final decision by a court or arbitrator, as
applicable, from which there is no further right to appeal, that
Indemnitee is not entitled to be indemnified for such Expenses
under the Company's charter documents, this Agreement, applicable
law or otherwise. The Reviewing Party shall be selected by the
Board of Directors or similar governing body of the Company. If
there has been no determination by the Reviewing Party or if the
Reviewing Party determines that the Indemnitee substantively
would not be permitted to be indemnified in whole or in part
under applicable law, the 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 the Indemnitee.
c. Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement except for Section 8, to the extent
that an 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,
the Indemnitee shall be indemnified against all Expenses incurred
by the Indemnitee in connection herewith.
2. Expenses; Indemnification Procedure.
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a. Advancement of Expenses. Subject to Section 1(b), the Company
shall advance all Expenses incurred by an 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 (10) business days after written demand by the Indemnitee
therefor to the Company.
Indemnitee is not entitled to be advanced any Expenses in
connection with any of the matters for which indemnity is
excluded pursuant to Section 8.
b. Notice/Cooperation by the Indemnitee. The Indemnitee shall give
the Company notice in writing as soon as practicable of any Claim
made against the Indemnitee for which indemnification will or
could be sought under this Agreement. Notice to the Company shall
be directed to the Chief Executive Officer of the Company at the
Company's address (or such other address as the Company shall
designate in writing to the Indemnitee). The Indemnitee will
cooperate with the person, persons or entity making a
determination with respect to the Indemnitee's entitlement to
indemnification, including providing to such person, persons or
entity, upon reasonable advance request, any documentation or
information which is reasonably available to the Indemnitee and
reasonably necessary to such determination. Any Expenses incurred
by Indemnitee in so cooperating with the person, persons or
entity making such determination will be borne by the Company
(irrespective of the determination as to the Indemnitee's
entitlement to indemnification) and the Company will indemnify
the Indemnitee therefor and will hold the Indemnitee harmless
therefrom.
c. No Presumptions; Burden of Proof. 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 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 the 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 the 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.
d. Notice to Insurers. If, at the time of the receipt by the Company
of a notice of a Claim pursuant to Section 2(b) hereof, the
Company has liability insurance in effect that 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 each of the 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. If the Company shall be obligated hereunder
to advance any Expense of any Claim, the Company shall be
entitled to assume the defense of such Claim, with counsel
approved by the Indemnitee, which approval will not be
unreasonably withheld, upon the delivery to the 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 the Indemnitee under this Agreement for any fees of
counsel subsequently incurred by the Indemnitee with respect to
the same Claim; provided that, (i) the Indemnitee shall have the
right to employ 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, or (B)
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 the
Indemnitee. 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.
f. Time for Submission of Request. Indemnitee will be required to
submit any request for indemnification pursuant to this Agreement
within a reasonable time, not to exceed six months, after any
judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere (or its
equivalent) or other full or partial final determination or
disposition of the Claim (with the latest date of the occurrence
of any such event to be considered the commencement of the two
year period).
3. Additional Indemnification Rights; Nonexclusivity.
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a. Scope. The Company hereby agrees to indemnify the Indemnitee to
the fullest extent permitted by law, even if such indemnification
is not specifically authorized by the other provisions of this
Agreement. In the event of any change after the date of this
Agreement in any applicable law, statute or rule that expands the
right of the Company to indemnify a director, manager, officer,
employee, 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. Upon any change in any
applicable law, statute or rule that narrows the right of the
Company to indemnify a director, manager, 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 Agreement
shall be in addition to any rights to which the Indemnitee may be
entitled under the Company's governance documents, any agreement,
any vote of the equityholders of the Company or disinterested
members of the Company's Board of Directors or similar governing
body, applicable law, or otherwise. The indemnification provided
under this Agreement shall continue as to the Indemnitee for any
action the 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 this
Agreement to make any payment in connection with any Claim made
against an Indemnitee to the extent the Indemnitee has otherwise
actually received payment (under any insurance policy or otherwise) of
the amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. If an Indemnitee is entitled under any
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 the Indemnitee for the portion of such Expenses
to which the Indemnitee is entitled.
6. Mutual Acknowledgement. The Company and the Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may
prohibit the Company from indemnifying its directors, managers,
officers, employees, agents or fiduciaries 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 an Indemnitee.
7. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, managers, officers, employees,
agents or fiduciaries, the Indemnitee shall be covered by such
policies 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 directors, if the Indemnitee is a director, or of the
Company's officers, if the Indemnitee is not a director of the Company
but is an officer; or of the Company's key employees, agents or
fiduciaries, if the Indemnitee is not an officer or director but is a
key employee, agent, or fiduciary.
8. Exceptions. Any other provision herein to the contrary notwith-
standing, the Company shall not be obligated pursuant to the terms of
this Agreement:
a. Claims Initiated by an Indemnitee. To indemnify or advance
expenses to an Indemnitee with respect to Claims initiated or
brought voluntarily by the 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 governance
documents now or hereafter in effect relating to Claims; (ii) in
specific cases if the Board of Directors or similar governing
body has approved the initiation or bringing of such Claim; or
(iii) as otherwise required under applicable law; or
b. Claims Under Section 16(b). To indemnify an Indemnitee for
expenses and the payment of profits arising from the purchase and
sale by the Indemnitee of securities in violation of Section
16(b) of the Exchange Act or any similar successor statute; or
c. Claims Excluded. To indemnify the Indemnitee if: (i) the
Indemnitee did not act in good faith and in a manner reasonably
believed to be in the best interests of the Company or (ii) with
respect to any criminal action or proceeding, the Indemnitee had
reasonable cause to believe the conduct was unlawful or (iii) the
Indemnitee shall have been adjudged to be liable to the Company
unless and only to the extent the court in which such action was
brought shall permit indemnification as provided by applicable
law or (iv) the Indemnitee fails to cooperate fully with the
Company in an internal or external investigation with respect to
the Company.
9. Construction of Certain Phrases.
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a. For purposes of this Agreement, references to the "Company" shall
include, Xxxxxx Communications, Inc., and any other constituent
entity (including any constituent of a constituent) absorbed in a
consolidation or merger that, if its separate existence had
continued, would have had power and authority to indemnify its
directors, managers, officers, employees, agents or fiduciaries,
so that if an Indemnitee is or was a director, manager, officer,
employee, agent, or fiduciary of such constituent entity, or is
or was serving at the request of such constituent entity as a
director, manager, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, the Indemnitee shall stand in
the same position under the provisions of this Agreement with
respect to the resulting or surviving entity as the Indemnitee
would have with respect to such constituent entity if its
separate existence had continued.
b. For purposes of this Agreement, references to "other enterprises"
shall include employee benefit plans; and references to "serving
at the request of the Company" shall include any service as a
director, manager, officer, employee, agent or fiduciary of the
Company that imposes duties on, or involves services by, such
director, manager, officer, employee, agent or fiduciary with
respect to an employee benefit plan, its participants or its
beneficiaries; and if an Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit
plan, the 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.
c. For purposes of this Agreement, "Independent Legal Counsel" shall
mean an attorney or firm of attorneys, selected in accordance
with the provisions of Section 2(e) hereof, who shall not have
otherwise performed services for the Company or the Indemnitee
within the last three (3) years (other than with respect to
matters concerning the right of the Indemnitee under this
Agreement, or of other indemnitees under similar indemnity
agreements).
d. 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 similar governing party,
or any other person or body appointed by such body, who is not a
party to the particular Claim for which the Indemnitee is seeking
indemnification, or Independent Legal Counsel.
e. For purposes of this Agreement, "Voting Securities" shall mean
any securities of the Company that vote generally in the election
of directors.
10. Counterparts. This Agreement may be executed in one or more counter-
parts, each of which shall constitute an original.
11. Binding Effect; Successors and Assigns. This Agreement shall be
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 regardless of whether the Indemnitee continues to serve as a
director, officer, employee, agent, or fiduciary of the Company or of
any other enterprise, including subsidiaries of the Company, at the
Company's request.
12. Attorneys' Fees. In the event that any action is instituted by an
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 the Indemnitee with respect to such action,
if the Indemnitee is ultimately successful in such action.
13. 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 (1) business day after the
business day of deposit with Federal Express or similar overnight
courier, freight prepaid; or (d) one (1) 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 (10) days' advance written notice to the other party
hereto.
14. 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.
15. 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, without regard to the conflict of laws principles thereof.
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 documents required
and shall do all acts that may be necessary to secure such rights and
to enable the Company effectively to bring suit to enforce such
rights.
17. 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. Notwithstanding the
foregoing, the Company may amend this Agreement without the consent of
the Indemnitee solely to add additional Indemnitees hereunder.
18. 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.
19. No Construction as Employment Agreement. Nothing contained in 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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement on and as of the day and year first above written.
COMPANY:
XXXXXX COMMUNICATIONS, INC.
By: _____________________________
Name: _____________________________
Title: _____________________________
INDEMNITEE:
__________________________________________
Name: ____________________________________
