AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
THIS AGREEMENT made this 7th day of June, 2001 by and between
Westminster Securities Corp., a New York corporation with an office located at
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Westminster" or "Purchaser"), Xxxxxxx
Global Corporation, a Delaware corporation with an address of 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Seller"), Xxxx X. X'Xxxx, an individual with an
address at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 ("X'Xxxx"), Xxxxxx Xxxxxxx, an
individual with an address at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Luskind")
and Xxxxx X. Xxxxxx, an individual with an address at 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000 ("Xxxxxx") (X'Xxxx, Luskind and Xxxxxx are referred to collectively
herein as the "Westminster Shareholders").
WHEREAS, Seller is the owner of 997 shares of the Class A Common Stock
of Westminster, par value $1.00 per share, which amount equals 99.7% of the
issued and outstanding shares of common stock of Westminster (collectively, the
"Westminster Common Stock"); and
WHEREAS, Purchaser wishes to purchase the Westminster Common Stock from
the Seller; and
WHEREAS, Seller desires to sell the Westminster Common Stock to the
Purchaser, upon the terms and conditions hereinafter set forth; and
WHEREAS, the parties entered into that certain Stock Purchase Agreement
dated April 19, 2001 (the "Original Agreement"); and
WHEREAS, the parties desire to amend and restate in its entirety the
Original Agreement as herein set forth.
NOW, THEREFORE, in consideration of the mutual premises and the
representations, warranties, covenants and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Sale. Upon the terms and conditions hereinafter set forth and on the
date of Closing (as hereinafter defined), Seller agrees to sell, transfer and
deliver to the Purchaser, and the Purchaser agrees to purchase and take
delivery, upon the terms and conditions hereinafter set forth, of all the
Westminster Common Stock, free and clear of all security interests, claims,
liens and other encumbrances except as may be expressly set forth in this
Agreement.
2. Consideration. In consideration of the sale, transfer and delivery
of the Westminster Common Stock to the Purchaser by the Seller hereunder,
Purchaser shall pay the following to Seller on the date of Closing: (i) Seven
Hundred Thousand Dollars ($700,000), payable by Purchaser's delivery to Seller
at Closing of (A) $100,000, by bank, cashier's or certified check, or by wire
transfer from Purchaser in accordance with instructions provided by Seller and
(B) pre-payment by Purchaser of the $600,000 principal amount due under that
certain Secured Demand Note, dated September 1, 1999 ("Secured Note"), executed
by Seller and Westminster,
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and waiving any interest thereon (collectively, the "Cash Amounts Paid at
Closing"); and (ii) delivery to Seller of a two year Promissory Note executed by
Purchaser in the principal amount of $300,000, bearing interest at the rate of
ten percent (10%) per annum, payable in two installments on each of April 19,
2002 and April 19, 2003 and containing such other terms and conditions as are
set forth in the form annexed hereto as Exhibit A (the "Note"). In addition, as
partial consideration for the transactions contemplated hereby, including
without limitation the mutual releases to be executed and delivered at Closing,
the Westminster Shareholders shall transfer and deliver to Seller stock
certificates representing an aggregate of 4,500,000 shares of the common stock
of Seller, par value $0.00001 per share (collectively, the "Xxxxxxx Common
Stock"), duly endorsed for transfer, which shares shall be delivered free and
clear of all security interests, claims, liens and other encumbrances except as
may be expressly permitted by this Agreement. Nothing herein shall affect in any
respect any outstanding stock options granted to the Westminster Shareholders by
Seller, which shall remain outstanding in accordance with their respective
terms.
3. The Closing. The "Closing" means the settlement of the obligations
of Seller, Purchaser and the Westminster Shareholders to each other under this
Agreement, including the payment of all consideration due hereunder to Seller,
including without limitation, delivery of the Xxxxxxx Common Stock as provided
in Paragraph 2 hereof, which such Closing shall be held within three (3)
business days following the satisfaction of the conditions set forth in Section
4 hereof. At the Closing, (a) the Seller will deliver to the Purchaser (i) stock
certificates representing the Westminster Common Stock, duly endorsed for
transfer and (ii) the original Secured Note, as cancelled, (b) the Purchaser
will deliver to the Seller (i) the Cash Amounts Paid at Closing and (ii) the
Note, fully executed by Westminster and (c) the Westminster Shareholders shall
deliver to Seller stock certificates representing all of the Xxxxxxx Common
Stock, duly endorsed for transfer. Also at Closing, each of the Westminster
Shareholders, Purchaser, Seller and Xxxxx Xxxxxxxx each shall deliver a general
release to the others in the forms annexed hereto as Exhibits B-1 through B-6,
(collectively, the "Releases") and each of Purchaser and Seller shall deliver
copies of resolutions duly adopted by their respective boards of directors
authorizing Purchaser and Seller, respectively, to execute, deliver and perform
the Agreement as modified by the Amendment.
4. Conditions Precedent to Closing. All obligations of Seller,
Purchaser and the Westminster Shareholders under this Agreement are subject to
the fulfillment, or waiver by the party or parties to be benefited, prior to or
at the Closing, of all conditions elsewhere herein set forth prior to the date
of Closing and of each of the following conditions:
(a) Execution and delivery of this Agreement by all parties
hereto;
(b) Execution and delivery of the Releases by all parties
thereto;
(c) Execution and delivery of the Note by Westminster to
Seller;
(d) The respective representations, warranties and covenants
of Seller, Purchaser and the Westminster Shareholders contained in this
Agreement shall be true and correct in all respects on the date of
Closing as if made on such date;
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(e) Seller, Purchaser and the Westminster Shareholders shall
have performed and complied in all respects with all covenants,
agreements and conditions required by this Agreement to be performed or
complied with by each prior to or at the Closing;
(f) The Seller shall have delivered to the Purchaser the
Westminster Common Stock;
(g) The Westminster Shareholders shall have delivered to
Seller the Xxxxxxx Common Stock;
(h) Execution and delivery by the Seller of a certificate
signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, Executive Vice President or Senior Vice President and by
the Treasurer or the Secretary of the Company: (i) attaching
resolutions of the Board of Directors of the Seller approving this
Agreement, the applicable Releases, the sale of the Westminster Common
Stock and all other agreements, documents and instruments executed in
connection herewith and therewith, and of all other documents
evidencing necessary Seller, government and self-regulatory
organization approvals, if any, with respect to this Agreement, the
Releases and the sale of the Westminster Common Stock, (ii) certifying
compliance with the terms and conditions, and representations,
warranties and covenants, hereof, and (iii) certifying the names and
true signatures of the officers of the Seller authorized to sign this
Agreement, the Releases, the certificates representing the Westminster
Common Stock and such other documents to be delivered by it hereunder;
(i) All actions necessary to assure compliance with all
applicable federal and state securities laws, including all
authorizations, approvals and permits, if any, of any government
entity, governmental authority or regulatory body in any state where
the Westminster Common Stock and Xxxxxxx Common Stock is being sold or
transferred that are required in connection with the lawful transfer
and sale of the Westminster Common Stock and Xxxxxxx Common Stock shall
have been duly obtained and shall be effective on and as of the
Closing;
(j) The purchase and sale of the Westminster Common Stock and
the Xxxxxxx Common Stock are legally permitted by all laws, rules and
regulations to which the Purchaser, Seller and the Westminster
Shareholders are subject;
(k) Approval, if required, by all applicable authorities
having jurisdiction over the parties hereto or the transactions
contemplated hereby, including, but not limited to, the approval of the
New York Stock Exchange, the American Stock Exchange and the National
Association of Securities Dealers, Inc. ("NASD");
(l) Cancellation of the Secured Note; and
(m) Execution and delivery of Indemnification Agreements
("Indemnification Agreements"), in the forms annexed hereto as Exhibit
C-1 to C-3, executed
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by the Seller in favor of X'Xxxx, Luskind and Xxxxxx, respectively, and
relating to all action taken by X'Xxxx as a member of the Board of
Directors of Seller and by Westminster Shareholders as members of the
Board of Directors of Westminster.
5. Representations, Warranties and Covenants of Seller. In order to
induce the Purchaser to enter into this Agreement, Seller represents, warrants
and covenants to the Purchaser that:
(a) The Seller has the power, authority and legal right to (i)
make, deliver and perform this Agreement, the Releases and the
Indemnification Agreements, (ii) authorize, sell and deliver the
Westminster Common Stock as set forth herein, (iii) redeem the Xxxxxxx
Common Stock as set forth herein and (iv) comply with the terms and
conditions of this Agreement, the Releases and the Indemnification
Agreements, and all of the transactions contemplated hereby and
thereby. The Seller has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, the Releases and
the Indemnification Agreements, and the consummation of the
transactions contemplated herein. This Agreement, upon execution and
delivery hereof, and the Releases and Indemnification Agreements, upon
execution and delivery thereof, will be a valid and binding obligation
of Seller, its subsidiaries and affiliates, enforceable against them in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of
general application affecting enforcement of creditors' rights
generally;
(b) The execution, delivery and performance by Seller of this
Agreement and compliance herewith and the sale of the Westminster
Common Stock and the purchase of the Xxxxxxx Common Stock, will not
result in a violation of and will not violate, conflict with, or result
in a breach of, any of the terms of, or constitute a default under, any
provision of state or Federal law to which Seller is subject, or any
mortgage, indenture, contract, agreement, instrument, judgment, decree,
order, rule or regulation, or the Certificate of Incorporation, as
amended, or By-laws of the Seller, or other restriction to which the
Seller or any affiliate thereof is a party or by which it is bound, or
result in the creation of any mortgage, pledge, lien, encumbrance or
charge upon any of the properties or assets of Seller pursuant to any
such term;
(c) No consent of any other party and no consent, license,
approval, qualification or authorization of, or registration, filing or
declaration with, any government entity is required in connection with
the valid execution, delivery and performance by the Seller of, or the
validity or enforceability of Seller's obligations under, this
Agreement or the Releases or the offer, sale or delivery of the
Westminster Common Stock, or the offer, purchase and receipt of the
Xxxxxxx Common Stock, other than such as have been met or obtained at
or prior to Closing;
(d) No litigation, suit, action or administrative proceeding
of or before any court, tribunal or government entity is presently
pending, or, to the knowledge of the Seller threatened, against the
Seller or any properties of the Seller, or with respect to this
Agreement, which, if adversely determined, would draw into question the
validity of this Agreement, the offer, sale and delivery of the
Westminster Common Stock or the offer, purchase and receipt of
4
the Xxxxxxx Common Stock. Neither Seller nor any subsidiary thereof has
admitted in writing its inability to pay its debts generally as they
become due, filed or consented to the filing against it of a petition
in bankruptcy or a petition to take advantage of any insolvency act,
made an assignment for the benefit of creditors, consented to the
appointment of a receiver for itself or for the whole or any
substantial part of its property or assets, had a petition in
bankruptcy filed against it and has not been adjudicated a bankrupt or
filed a petition or answer seeking reorganization or arrangement under
the federal bankruptcy laws or any other law or statute of the United
States of America or any other jurisdiction or taken any action toward
authorizing or consenting to any of the foregoing;
(e) No stockholder of the Seller or any other third party has
any preemptive rights or rights of first refusal by reason of the sale
by Seller of the Westminster Common Stock or the purchase by Seller of
the Xxxxxxx Common Stock;
(f) Seller will not, unless required by law or compelled by
order of any court having competent jurisdiction over the subject
matter thereof, comply with any third party litigation or other action
taken against Purchaser or against the Westminster Shareholders;
(g) Nothing in this Agreement, the Releases, the Note, the
Indemnification Agreements or any other document executed in connection
with the transactions contemplated herein contains or will contain any
untrue statement of a material fact or will omit to state a material
fact necessary in order to make the statements contained herein or
therein not misleading;
(h) The Seller has in force directors and officers liability
insurance, with aggregate coverage of at least $10 million, including
customary coverage and exclusions thereto, which insurance covers each
of the Westminster Shareholders in their capacities as officers or
directors of Westminster or Seller and which insurance shall continue
to cover each Westminster Shareholder in such capacity following any
resignation from any such status and following the Closing with respect
to actions or omissions, or alleged actions or omissions, which take
place or took place prior to the Closing. Seller shall timely make all
premium payments necessary to ensure the continuation of such coverage;
(i) Seller shall ensure that all documentation filed or
required to be filed by Xxxxxxx Global Securities, Inc. ("LGS") with
any government entity or regulatory authority having jurisdiction over
LGS with respect to the resignation of X'Xxxx as a registered
representative of LGS, including but not limited to the filing of a
Form U-5 with the NASD, shall contain no negative inferences or other
disparaging remarks concerning X'Xxxx, his tenure or the reasons for
his resignation as a registered representative of LGS, and shall state
only that the resignation of X'Xxxx as a registered representative of
LGS was voluntary;
(j) Westminster shall continue to lease its current space from
Seller at 000 Xxxx Xxxxxx, Xxx Xxxx, XX for up to 150 days after the
Closing on terms and conditions (including the provision of all
services currently provided by Seller or an affiliate to Westminster,
including, but not limited to, all telephonic and telecommunications
services and computerized quotation services) identical to those under
which the parties have been operating
5
since July 1, 1999 through the Closing (even if the actual terms under
which the parties have been operating are different from terms
contained in any written document relating to the same time period);
and
(k) Seller shall not remove any assets from, or add any
liabilities to (other than those incurred in the ordinary course of
business in strict accordance with past practice), Westminster or its
books and records any time from the date hereof through the Closing;
and
(l) At all times from the date hereof through Closing, Seller
shall continue to abide by the terms and conditions of Section 28(a),
and all other sections relating to the management of Westminster, as
set forth in that Amended and Restated Plan and Agreement of
Reorganization, dated May 27, 1999, to which Seller and Westminster are
a party.
6. Representations and Warranties of Purchaser. In order to induce
Seller to enter into this Agreement, Purchaser represents and warrants to the
Seller that:
(a) Purchaser (i) is acquiring the Westminster Common Stock
for investment for its own account, not as a nominee or agent and not
with the view to, or for resale in connection with, any distribution
thereof, (ii) has adequate means of providing for its current needs and
possible contingencies, and has no need for liquidity of its investment
in the Westminster Common Stock; (iii) can bear the economic risk of
losing its entire investment in the Westminster Common Stock; (iv) has
such knowledge and experience in financial matters and is capable of
evaluating the relative risks and merits of its investment; and, (v)
acknowledges and is aware that none of the Westminster Common Stock
sold, transferred and delivered shall be registered under federal
securities laws but, rather, shall be considered "restricted stock"
within the meaning of Rule 144 promulgated under the Securities Act,
and further that the certificates evidencing all of the Westminster
Common Stock shall bear a legend restricting transfer thereof, except
under certain circumstances and subject to certain conditions;
(b) Purchaser has the power, authority and legal right to (i)
make, deliver and perform this Agreement and the Release and (ii)
comply with the terms and conditions of this Agreement and the Release
against it, and all of the transactions contemplated hereby and
thereby. Purchaser has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, the Releases and
the consummation of the transactions contemplated herein. This
Agreement, upon execution and delivery hereof, will be a valid and
binding obligation of Purchaser, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws of general application affecting
enforcement of creditors' rights generally;
(c) The execution, delivery and performance by Purchaser of
this Agreement and compliance herewith and the purchase of the
Westminster Common Stock, will not result in a violation of and will
not violate, conflict with, or result in a breach of, any of the terms
of, or constitute a default under, any provision of state or Federal
law, or the rules of the
6
New York Stock Exchange, to which Purchaser is subject, or any
mortgage, indenture, contract, agreement, instrument, judgment, decree,
order, rule or regulation, or the Certificate of Incorporation, as
amended, or By-laws of the Purchaser, or other restriction to which the
Purchaser or any affiliate thereof is a party or by which it is bound,
or result in the creation of any mortgage, pledge, lien, encumbrance or
charge upon any of the properties or assets of Purchaser pursuant to
any such term;
(d) No consent of any other party and no consent, license,
approval, qualification or authorization of, or registration, filing or
declaration with, any government entity is required in connection with
the valid execution, delivery and performance by Purchaser of, or the
validity or enforceability of, this Agreement or the Release or the
offer or purchase of the Westminster Common Stock, other than such as
have been met or obtained at or prior to Closing;
(e) Purchaser will not, unless required by law or compelled by
order of any court having competent jurisdiction over the subject
matter thereof, comply with any third party litigation or other action
taken against any Seller;
(f) Nothing in this Agreement or in Purchaser's Release or any
other document executed in connection with the transactions
contemplated herein contains or will contain any untrue statement of a
material fact or will omit to state a material fact necessary in order
to make the statements contained herein or therein not misleading;
(g) No litigation, suit, action or administrative proceeding
of or before any court, tribunal or government entity is presently
pending, or, to the knowledge of Purchaser threatened, against
Purchaser, or with respect to this Agreement, which, if adversely
determined, would draw into question the validity of this Agreement or
the offer, purchase and receipt of the Westminster Common Stock.
Purchaser has not admitted in writing its inability to pay its debts
generally as they become due, filed or consented to the filing against
it of a petition in bankruptcy or a petition to take advantage of any
insolvency act, made an assignment for the benefit of creditors,
consented to the appointment of a receiver for itself or for the whole
or any substantial part of its property or assets, had a petition in
bankruptcy filed against it or been adjudicated a bankrupt or filed a
petition or answer seeking reorganization or arrangement under the
federal bankruptcy laws or any other law or statute of the United
States of America or any other jurisdiction; and
(h) No shareholder of Westminster or any other third party has
any preemptive rights or rights of first refusal by reason of the
acquisition of the Westminster Common Stock by Purchaser.
7. Entire Agreement, Amendments and Waivers. This Agreement constitutes
the entire and full understanding and agreement between the parties with regard
to the subject matter hereof and replaces and supercedes in its entirety the
Original Agreement. No amendment, waiver, discharge, termination or modification
of any provision of this Agreement shall be effective without the written
agreement of the parties hereto, and no termination or waiver of any provision
of this Agreement or consent to any departure therefrom by any party
7
shall be effective without the written consent of the other parties hereto. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
8. Notices, Etc. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to be effective
only if delivered by hand, overnight courier or mailed by prepaid registered or
certified mail, return receipt requested, to the parties at their addresses set
forth herein, or to such other address as each party may specify by written
notice to the other from time to time. Such notices, requests, demands and other
communications hereunder shall be deemed to have been duly given upon such
personal delivery, on the next business day after being sent by overnight
courier, or on the date three (3) business days after the date postmarked by the
United States Post Office, as the case may be.
9. Broker. Each of the parties hereto represent and warrant to each
other that no broker was employed by any of them in connection with the
transactions contemplated by this Agreement. Each of the parties hereto agrees
to indemnify and hold the other parties harmless with respect to any claims made
by any broker for the payment of fees in connection with the transactions
contemplated hereby.
10. No Waiver, Remedies. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof or of any similar breach or default thereafter
occurring or of a waiver of any other breach or default theretofore or
thereafter occurring, nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
11. Binding Effect, Assignability. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement shall not be assignable in whole or in
part by any party hereto without the prior written consent of the other parties
hereto.
12. Term of this Agreement. This Agreement shall remain in full force
and effect until all obligations due and owing to each other party hereunder
shall have been satisfied; provided, however, that the indemnification
obligations shall survive for a period of three (3) years from the date hereof.
13. Governing Law; Jury Waiver; Jurisdiction. This Agreement will be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to conflicts of laws principles thereof. Each of the
parties hereto waives, to the fullest extent permitted by law, any right it may
have to a trial by jury in respect of any litigation arising directly or
indirectly out of, under or in connection with this Agreement or any of the
transactions contemplated hereunder. The parties hereby submit to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the Federal courts located in Southern District of New York, with respect to
any action or legal proceeding commenced by any party with respect to this
Agreement. Each party irrevocably waives any objection it now has or hereafter
may have respecting the venue of any such action or proceeding or the
8
inconvenience of such forum, and each party consents to the service of process
in any such action or proceeding in the manner set forth for the delivery of
notices herein.
14. Execution in Counterparts; Severability; Interpretation. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby. This Agreement, the Releases, the Note and the
Indemnification Agreements contain the final and complete integration of all
prior expressions by the parties hereto with respect to the subject matter
hereof and thereof and shall constitute the entire agreement among the parties
hereto and thereto with respect to the subject matter hereof and thereof,
superseding all prior oral or written understandings. The language used in this
Agreement will be deemed to be the language chosen by all parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any party.
15. Attorney Fees. In the event of litigation arising out of this
Agreement, the prevailing party shall be entitled to collect attorney fees and
costs from the losing party.
16. Non-Disclosure. Each party hereto agrees not to discuss or disclose
the terms hereof, their negotiations or the operations or each company other
than as provided by law or applicable regulation, or such information which
becomes generally available to the public through no breach of the foregoing
covenant.
17. Termination. All parties agree to use their respective best efforts
to satisfy all conditions to closing herein as soon as practicable.
Notwithstanding this, if following all parties' best efforts, closing has not
taken place on or before 75 days following the date hereof, any party may elect
to terminate this agreement as to all parties by written notice to all parties
within 15 days following the termination of such 75-day period.
18. Representations and Warranties of the Westminster Shareholders. In
order to induce Seller to enter into this Agreement, the Westminster
Shareholders represent and warrant, solely on their own behalf, respectively, to
the Seller that:
(a) The Westminster Shareholders have the power, authority and
legal right to (i) make, deliver and perform this Agreement and the
Release to be executed by each such party, (ii) comply with the terms
and conditions of this Agreement and the Release to be executed by each
such party against it and each of them, and all of the transactions
contemplated hereby and thereby and (iii) authorize, sell and deliver
their respective shares of Xxxxxxx Common Stock. This Agreement, upon
execution and delivery hereof, will be a valid and binding obligation
of the Westminster Shareholders, enforceable against them in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws of general
application affecting enforcement of creditors' rights generally;
9
(b) The execution, delivery and performance by the Westminster
Shareholders of this Agreement and compliance herewith, and the sale of
the Xxxxxxx Common Stock will not result in a violation of and will not
conflict with, or result in a breach of, any of the terms of, or
constitute a default under, any provision of state or Federal law to
which the Westminster Shareholders are subject, or any mortgage,
indenture, contract, agreement, instrument, judgment, decree, order,
rule or regulation or other restriction to which any Westminster
Shareholder is a party or by which any Westminster Shareholder is
bound, or result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of such
Westminster Shareholder pursuant to any such term;
(c) No consent of any other party and no consent, license,
approval, qualification or authorization of, or registration, filing or
declaration with, any government entity is required in connection with
the valid execution, delivery and performance by the Westminster
Shareholders of, or the validity or enforceability of, this Agreement
or the Release to be executed by each such party or the offer, sale or
delivery of the Xxxxxxx Common Stock, other than such as have been met
or obtained at or prior to Closing (including, but not limited to,
approval of the New York Stock Exchange);
(d) The Westminster Shareholders will not, unless required by
law or compelled by order of any court having competent jurisdiction
over the subject matter thereof, comply with any third party litigation
or other action taken against Seller;
(e) Nothing in this Agreement or in any Westminster
Shareholder's Release or any other document executed in connection with
the transactions contemplated herein contains or will contain any
untrue statement of a material fact or will omit to state a material
fact necessary in order to make the statements contained herein or
therein not misleading;
(f) No litigation, suit, action or administrative proceeding
of or before any court, tribunal or government entity is presently
pending, or, to the knowledge of any Westminster Shareholder
threatened, against such Westminster Shareholder, or with respect to
this Agreement, which, if adversely determined, would draw into
question the validity of this Agreement or the offer, sale and delivery
of the Xxxxxxx Common Stock. No Westminster Shareholder has admitted in
writing his inability to pay his debts generally as they become due,
filed or consented to the filing against him, as applicable, of a
petition in bankruptcy or a petition to take advantage of any
insolvency act, made an assignment for the benefit of creditors,
consented to the appointment of a receiver for himself, as applicable,
or for the whole or any substantial part of his respective property or
assets, had a petition in bankruptcy filed against him or been
adjudicated a bankrupt or filed a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws or any
other law or statute of the United States of America or any other
jurisdiction; and
(g) No third party has any preemptive rights or rights of
first refusal by reason of the sale of the Xxxxxxx Common Stock by the
Westminster Shareholders.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered on
the day and year first herein above written.
XXXXXXX GLOBAL CORPORATION
By:
------------------------------
Xxxxx Xxxxx, President and COO
WESTMINSTER SECURITIES CORP.
By: /s/ Xxxx X. X'Xxxx
------------------------------
Xxxx X. X'Xxxx, President
/s/ Xxxx X. X'Xxxx
----------------------------------
Xxxx X. X'Xxxx
/s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
11
EXHIBIT A
PROMISSORY NOTE
June 12, 2001
New York, New York
$300,000.00
FOR VALUE RECEIVED, the undersigned party (the "Borrower") hereby promises
to pay to the order of Xxxxxxx Global Corporation, with an address at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Lender"), (i) the principal sum of Three
Hundred Thousand and 00/100 Dollars ($300,000.00). Interest hereon shall be at a
rate equal to ten percent (10%) per annum from the date hereof through the
Maturity Date. Payment hereunder shall be made as follows: (i) $150,000, plus
all accrued interest to date, shall be paid on the date which is the one year
anniversary of the date first written above and (ii) the balance of the
principal, plus all accrued but unpaid interest to date, if any, on the date
which is the two year anniversary of the date first written above (the "Maturity
Date"). Principal and interest may be prepaid, in whole or in part, at any time
without the prior written consent of Lender.
This Note and any of the rights granted hereunder are freely transferable
by the Lender only upon the prior written consent of the Borrower.
Notwithstanding any other provision hereof, interest paid or becoming due
hereunder shall in no event exceed the maximum rate permitted by applicable law.
Both principal and interest are payable in lawful money of the United States of
America to the Lender at the address above indicated.
The undersigned for itself and its respective successors and assigns hereby
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance or endorsement of this
Note.
This Note and the provisions hereof are to be construed according to and
are governed by the laws of the State of New York, without regard to principles
of conflicts of laws thereof.
IN WITNESS WHEREOF, the undersigned has duly executed this document,
enforceable against the Borrower in accordance with its terms, on the 12th day
of June, 2001.
WESTMINSTER SECURITIES CORP.
By:
---------------------------------
Xxxx X. X'Xxxx, President
EXHIBIT B-1
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT XXXXXXX
GLOBAL CORPORATION, as Releasor ("Releasor"), in consideration of the sum of Ten
Dollars ($10.00) received from each of WESTMINSTER SECURITIES CORP., XXXX X.
X'XXXX, XXXXXX XXXXXXX AND XXXXX X. XXXXXX, as Releasees (collectively,
"Releasees"), and other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, releases and discharges the
Releasees, each of all of Releasees' successors and assigns, from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, executions, claims, losses, costs, damages, liabilities, grievances,
causes of action, administrative, court or otherwise and demands whatsoever, in
law, admiralty or equity, as well as any claims arising under any federal, state
or local statute or ordinance other than (i) claims arising directly under that
certain Stock Purchase Agreement, dated April 19, 2001, and amended as of June
7, 2001, by and between Releasor and Releasees (collectively, the "Agreement")
or (ii) the Note (as defined in the Agreement) (any or all of the foregoing, as
so limited, "Claims"), as well as any Claims which the Releasor, Releasor's
subsidiaries, affiliates, administrators, successors and assigns ever had, now
have or hereafter can, shall or may, have for, upon, or by reason of any matter,
cause or thing whatsoever from the beginning of the world to the day of the date
of this Release. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the 12th day
of June, 2001.
XXXXXXX GLOBAL CORPORATION
By:
----------------------------------
Name:
President
EXHIBIT B-2
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT XXXXX
XXXXXXXX, as Releasor ("Releasor"), in consideration of the sum of Ten Dollars
($10.00) received from each of WESTMINSTER SECURITIES CORP., XXXX X. X'XXXX,
XXXXXX XXXXXXX AND XXXXX X. XXXXXX, as Releasees (collectively, "Releasees"),
and other good and valuable consideration, the receipt and sufficiency whereof
are hereby acknowledged, releases and discharges the Releasees, each of all of
Releasees' successors and assigns, from all actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, executions, claims,
losses, costs, damages, liabilities, grievances, causes of action,
administrative, court or otherwise and demands whatsoever, in law, admiralty or
equity, as well as any claims arising under any federal, state or local statute
or ordinance other than (i) claims arising directly under that certain Stock
Purchase Agreement, dated April 19, 2001, and amended as of June 7, 2001, by and
between Releasor and Releasees (collectively, the "Agreement") or (ii) the Note
(as defined in the Agreement) (any or all of the foregoing, as so limited,
"Claims"), as well as any Claims which the Releasor, Releasor's subsidiaries,
affiliates, administrators, successors and assigns ever had, now have or
hereafter can, shall or may, have for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the day of the date of
this Release. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the 12th day
of June, 2001.
------------------------------
XXXXX XXXXXXXX
EXHIBIT B-3
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT XXXX
X'XXXX, as Releasor ("Releasor"), in consideration of the sum of Ten Dollars
($10.00) received from XXXXXXX GLOBAL CORPORATION and XXXXX XXXXXXXX, as
Releasees (collectively, the "Releasees"), and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged,
releases and discharges the Releasees, each of all of Releasees' successors and
assigns, from all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, executions, claims, losses, costs, damages,
liabilities, grievances, causes of action, administrative, court or otherwise
and demands whatsoever, in law, admiralty or equity as well as any claims
arising under any federal, state or local statute or ordinance other than (i)
claims arising directly under that certain Stock Purchase Agreement, dated April
19, 2001, and amended as of June 7, 2001, by and between Releasor and Releasees
(collectively, the "Agreement") or (ii) the Note (as defined in the Agreement)
(any or all of the foregoing, as so limited, "Claims"), as well as any Claims
which the Releasor, Releasor's subsidiaries, affiliates, administrators,
successors and assigns ever had, now have or hereafter can, shall or may, have
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Release. This Release may
not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the 12th day
of June, 2001.
---------------------------------
XXXX X. X'XXXX
EXHIBIT B-4
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT XXX
XXXXXXX, as Releasor ("Releasor"), in consideration of the sum of Ten Dollars
($10.00) received from XXXXXXX GLOBAL CORPORATION and XXXXX XXXXXXXX, as
Releasees (collectively, the "Releasees"), and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged,
releases and discharges the Releasees, each of all of Releasees' successors and
assigns, from all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, executions, claims, losses, costs, damages,
liabilities, grievances, causes of action, administrative, court or otherwise
and demands whatsoever, in law, admiralty or equity as well as any claims
arising under any federal, state or local statute or ordinance other than (i)
claims arising directly under that certain Stock Purchase Agreement, dated April
19, 2001, and amended as of June 7, 2001, by and between Releasor and Releasees
(collectively, the "Agreement") or (ii) the Note (as defined in the Agreement)
(any or all of the foregoing, as so limited, "Claims"), as well as any Claims
which the Releasor, Releasor's subsidiaries, affiliates, administrators,
successors and assigns ever had, now have or hereafter can, shall or may, have
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Release. This Release may
not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the 12th day
of June, 2001.
---------------------------------
XXXXXX XXXXXXX
EXHIBIT B-5
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT XXXXX
XXXXXX, as Releasor ("Releasor"), in consideration of the sum of Ten Dollars
($10.00) received from XXXXXXX GLOBAL CORPORATION and XXXXX XXXXXXXX, as
Releasees (collectively, the "Releasees"), and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged,
releases and discharges the Releasees, each of all of Releasees' successors and
assigns, from all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, executions, claims, losses, costs, damages,
liabilities, grievances, causes of action, administrative, court or otherwise
and demands whatsoever, in law, admiralty or equity as well as any claims
arising under any federal, state or local statute or ordinance other than (i)
claims arising directly under that certain Stock Purchase Agreement, dated April
19, 2001, and amended as of June 7, 2001, by and between Releasor and Releasees
(collectively, the "Agreement") or (ii) the Note (as defined in the Agreement)
(any or all of the foregoing, as so limited, "Claims"), as well as any Claims
which the Releasor, Releasor's subsidiaries, affiliates, administrators,
successors and assigns ever had, now have or hereafter can, shall or may, have
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Release. This Release may
not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the 12th day
of June, 2001.
---------------------------------
XXXXX X. XXXXXX
EXHIBIT B-6
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT
WESTMINSTER SECURITIES CORP., as Releasor ("Releasor"), in consideration of the
sum of Ten Dollars ($10.00) received from each of XXXXXXX GLOBAL CORPORATION and
XXXXX XXXXXXXX, as Releasees (collectively, the "Releasees"), and other good and
valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, releases and discharges the Releasees, each of all of Releasees'
successors and assigns, from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, executions, claims, losses, costs,
damages, liabilities, grievances, causes of action, administrative, court or
otherwise and demands whatsoever, in law, admiralty or equity as well as any
claims arising under any federal, state or local statute or ordinance other than
(i) claims arising directly under that certain Stock Purchase Agreement, dated
April 19, 2001, and amended as of June 7, 2001, by and between Releasor and
Releasees (collectively, the "Agreement") or (ii) the Note (as defined in the
Agreement) (any or all of the foregoing, as so limited, "Claims"), as well as
any Claims which the Releasor, Releasor's subsidiaries, affiliates,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may, have for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
Release. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the 12th day
of June, 2001.
WESTMINSTER SECURITIES CORP.
By:
--------------------------------
Xxxx X. X'Xxxx
President
EXHIBIT C-1
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT made and entered into this 12th day of
June, 2001 ("Agreement"), by and between XXXXXXX GLOBAL CORPORATION, a Delaware
corporation with an address of 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Company"), and XXXX X. X'XXXX, an individual with an address at 000 Xxxxx Xxx
Xxxxxx, Xxxxx 00X, Xxx Xxxx, XX 00000 ("Indemnitee").
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify current and former members of the
Board Directors of the Company (the "Board") and those of its subsidiaries to
the fullest extent permitted by applicable law;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Services by Indemnitee. Indemnitee has resigned as a director
of the Company, but remains a director of the Company's subsidiary, Westminster
Securities Corp. ("Westminster").
Section 2. Indemnification. The Company shall indemnify Indemnitee to the
fullest extent permitted by applicable law in effect on the date hereof or as
such laws may from time to time be amended in connection with or related to his
service as a director or officer of the Company or Westminster. The rights of
indemnification of Indemnitee provided hereunder shall include but shall not be
limited to those rights set forth herein, except that no indemnification shall
be paid to Indemnitee:
(a) on account of any suit in which judgment is rendered against
Indemnitee 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 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(b) on account of Indemnitee's conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest, or to constitute willful
misconduct;
(c) to the extent expressly prohibited by applicable law;
(d) for which payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable indemnity clause,
by-law or agreement, except in respect of any excess beyond payment under such
insurance, clause, by-law or agreement;
(e) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful (and, in this respect, both
the Company and Indemnitee have been advised that the Securities and Exchange
Commission believes that indemnification for liabilities arising under the
federal securities laws is against public policy and is, therefore,
unenforceable
and that claims for indemnification should be submitted to appropriate courts
for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by
Indemnitee, or any proceeding by Indemnitee against the Company or its
directors, officers, employees or other Indemnitees, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board, (iii) such indemnification is provided by the Company,
in its sole discretion, pursuant to the powers vested in the Company under
applicable law, or (iv) except as provided in Sections 10 and 13 hereof.
Section 3. Action or Proceeding Other Than an Action by or in the Right of
the Company. Indemnitee shall be entitled to the indemnification rights provided
in this section if he is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative in nature, other than an action by or
in the right of the Company, by reason of the fact that he is or was a director,
officer, employee, agent or fiduciary of the Company or any affiliate or
subsidiary of the Company (including Westminster) or is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary of
any other entity, including, but not limited to, another corporation,
partnership, joint venture or trust, or by reason of anything done or not done
by him in any such capacity. Pursuant to this section, Indemnitee shall be
indemnified against all expenses (including attorneys' fees), costs, claims,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
(including, but not limited to, the investigation, defense and appeal thereof),
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 4. Actions by or in the Right of the Company. Indemnitee shall be
entitled to the indemnification rights provided in this section if he is a
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, agent or fiduciary of the
Company or any affiliate or subsidiary of the Company (including Westminster) or
is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary of any other entity, including, but not limited to,
another corporation, partnership, joint venture or trust, or by reason of
anything done or not done by him in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all expenses (including attorneys'
fees), costs and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding (including, but not
limited to, the investigation, defense and appeal thereof) if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, that no such indemnification shall
be made in respect of any claim, issue, or matter as to which applicable law
expressly prohibits such indemnification by reason of an adjudication of
liability of Indemnitee to the Company, unless, and only to the extent that, the
Court of Chancery of the State of Delaware or the court in which such action or
2
suit was brought shall determine upon application that, despite such
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for such
expenses and costs as such court shall deem proper.
Section 5. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Agreement, to the extent
that Indemnitee has served as a witness on behalf of the Company or has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 3 and 4 hereof, or in defense of any claim,
issue or matter therein, including, without limitation, the dismissal of an
action without prejudice, he shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by him or
on his behalf in connection therewith.
Section 6. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses (including attorneys' fees), costs, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the defense, investigation, settlement or appeal of
any action, suit, investigation or proceeding described in Section 3 or 4
hereof, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such expenses (including
attorneys' fees), costs, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him to which Indemnitee is
entitled.
Section 7. Determination of Entitlement to Indemnification. Upon written
request by Indemnitee for indemnification pursuant to Section 3 or 4 hereof, the
entitlement of the Indemnitee to indemnification pursuant to the terms of this
Agreement shall be determined by the following person or persons who shall be
empowered to make such determination: (a) the Board by a majority vote of a
quorum consisting of Disinterested Directors (as hereinafter defined); or (b) if
such a quorum is not obtainable or, even if obtainable, if the Board by the
majority vote of Disinterested Directors so directs, by Independent Counsel (as
hereinafter defined) in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee. Such Independent Counsel shall be selected by the Board
and approved by Indemnitee. Upon failure of the Board to so select such
Independent Counsel or upon failure of Indemnitee to so approve same, such
Independent Counsel shall be selected by the Chancellor of the State of Delaware
or such other person as the Chancellor shall designate to make such selection.
Such determination of entitlement to indemnification shall be made not later
than 45 days after receipt by the Company of a written request for
indemnification. Such request shall include documentation or information which
is necessary for such determination and which is reasonably available to
Indemnitee. Any costs or expenses (including attorneys' fees) incurred by
Indemnitee in connection with his request for indemnification hereunder shall be
borne by the Company. The Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom irrespective of the outcome of the determination
of Indemnitee's entitlement to indemnification. If the person making such
determination shall determine that Indemnitee is entitled to indemnification as
to part (but not all) of the application for indemnification, such person shall
reasonably prorate such partial indemnification among such claims, issues or
matters.
3
Section 8. Presumptions and Effect of Certain Proceedings. The Secretary
of the Company shall, promptly upon receipt of Indemnitee's request for
indemnification, advise in writing the Board or such other person or persons
empowered to make the determination as provided in Section 7 that Indemnitee has
made such request for indemnification. Upon making such request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
hereunder and the Company shall have the burden of proof in the making of any
determination contrary to such presumption. If the person or persons so
empowered to make such determination shall have failed to make the requested
indemnification within 45 days after receipt by the Company of such request, the
requisite determination of entitlement to indemnification shall be deemed to
have been made and Indemnitee shall be absolutely entitled to such
indemnification, absent actual and material fraud in the request for
indemnification. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or
conviction, or upon a plea of xxxx contendere or its equivalent, shall not, of
itself: (a) create a presumption that Indemnitee did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that his conduct was
unlawful; or (b) otherwise adversely affect the rights of Indemnitee to
indemnification except as may be provided herein.
Section 9. Advancement of Expenses and Costs. All reasonable expenses and
costs incurred by Indemnitee (including attorneys' fees, retainers and advances
of disbursements required of Indemnitee) shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding at the request of
Indemnitee within twenty days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time. Indemnitee's entitlement to such expenses shall include those incurred in
connection with any proceeding by Indemnitee seeking an adjudication or award in
arbitration pursuant to this Agreement. Such statement or statements shall
reasonably evidence the expenses and costs incurred by him in connection
therewith and shall include or be accompanied by an undertaking by or on behalf
of Indemnitee to repay such amount if it is ultimately determined that
Indemnitee is not entitled to be indemnified against such expenses and costs by
the Company as provided by this Agreement or otherwise.
Section 10. Remedies of Indemnitee in Cases of Determination Not to
Indemnify or to Advance Expenses. In the event that a determination is made that
Indemnitee is not entitled to indemnification hereunder or if payment has not
been timely made following a determination of entitlement to indemnification
pursuant to Sections 7 and 8 hereof, or if expenses are not advanced in
accordance with Section 9 hereof, Indemnitee shall be entitled to a final
adjudication in an appropriate court of the State of Delaware or any other court
of competent jurisdiction of his entitlement to such indemnification or advance.
Alternatively, Indemnitee at his option may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association, such award to be made within sixty days following the
filing of the demand for arbitration. The Company shall not oppose Indemnitee's
right to seek any such adjudication or award in arbitration or any other claim.
Such judicial proceeding or
4
arbitration shall be made de novo and Indemnitee shall not be prejudiced by
reason of a determination (if so made) that he is not entitled to
indemnification. If a determination is made or deemed to have been made pursuant
to the terms of Section 7 or Section 8 hereof that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination and is
precluded from asserting that such determination has not been made or that the
procedure by which such determination was made is not valid, binding and
enforceable. The Company further agrees to stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary. If the
court or arbitrator shall determine that Indemnitee is entitled to any
indemnification hereunder, the Company shall pay all reasonable expenses
(including attorneys' fees) and costs actually incurred by Indemnitee in
connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).
Section 11. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in writing of the commencement thereof;
but the omission to so notify the Company will not relieve the Company from any
liability that it may have to Indemnitee otherwise than under this Agreement.
Notwithstanding any other provision of this Agreement, with respect to any such
action, suit or proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided in this Section 11(b), to the extent that
it may wish, the Company, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to so assume the defense thereof, the Company shall not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ his own counsel in such action, suit or
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
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action or (iii) the Company shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the Company.
The Company shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Company or as to which Indemnitee
shall have made the conclusion provided for in (ii) above.
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner that would impose any penalty or
5
limitation on Indemnitee without Indemnitee's written consent. Neither the
Company nor Indemnitee will unreasonably withhold their consent to any proposed
settlement.
Section 12. Other Rights to Indemnification. The indemnification and
advancement of expenses (including attorneys' fees) and costs provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may now or in the future be entitled under any provision of the by-laws of the
Company, any agreement or provision of the Certificate of Incorporation of the
Company, vote of stockholders or Disinterested Directors, provision of law, or
otherwise.
Section 13. Attorneys' Fees and Other Expenses to Enforce Agreement. In
the event that Indemnitee institutes, is subject to or intervenes in any
proceeding in which the validity or enforceability of this Agreement is at issue
or seeks an adjudication or award in arbitration to enforce his rights under, or
to recover damages for breach of, this Agreement, Indemnitee, if he prevails in
whole or in part in such action, shall be entitled to recover from the Company
(in addition to all sums collectible as a result of such adjudication or award)
and shall be indemnified by the Company against, any actual expenses for
attorneys' fees and disbursements reasonably incurred by him.
Section 14. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) 10 years after Indemnitee has ceased to occupy
any of the positions or have any of the relationships described in Sections 3
and 4 of this Agreement; and (b) the final termination of all pending or
threatened actions, suits, proceedings or investigations to which Indemnitee may
be subject by reason of the fact that he is or was a director, officer,
employee, agent or fiduciary of the Company or any affiliate or subsidiary
thereof or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of any other entity, including, but not
limited to, another corporation, partnership, joint venture or trust, or by
reason of anything done or not done by him in any such capacity. The
indemnification provided under this Agreement shall continue as to Indemnitee
even though he may have ceased to be a director or officer of the Company. This
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of Indemnitee and his spouse, assigns, heirs,
devises, executors, administrators or other legal representatives.
Notwithstanding anything to the contrary herein, no indemnification or
advancement of expenses described herein shall be applicable to Indemnitee or
paid by the Company with respect to actions, suits or proceedings solely
relating to Indemnitee's service as a director or officer of Westminster either
prior to May 27, 1999 or after the date hereof.
Section 15. Severability. 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 portions of any paragraphs of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement
6
containing any such provision held to be invalid, illegal, or unenforceable,
that are not themselves invalid, illegal or unenforceable) shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 16. 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 but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
Section 17. Headings. The headings of the paragraphs 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.
Section 18. Definitions. For purposes of this Agreement:
(a)"Disinterested Director" shall mean a director of the Company who is
not or was not a party to the action, suit, investigation or proceeding in
respect of which indemnification is being sought by Indemnitee.
(b)"Independent Counsel" shall mean a law firm or a member of a law firm
that neither is presently nor in the past five years has been retained to
represent: (i) the Company or Indemnitee in any matter material to either such
party, or (ii) any other party to the action, suit, investigation or proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's right to indemnification under this
Agreement.
Section 19. 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.
Section 20. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) if delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed or (ii) if 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 Indemnitee, to Xxxx X. X'Xxxx, 000 Xxxxx Xxx Xxxxxx, Xxxxx 00X,
Xxx Xxxx, XX 00000
7
with a copy to:
Xxxxxxx & Associates, Counselors At Law, P.C.
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(b) If to the Company, to the address appearing in the first paragraph of
this Agreement, Attn: President
with a copy to:
Beckman, Millman, Barandes and Xxxxxxx LLP
Suite 1313
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 21. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXXXXXX GLOBAL CORPORATION
ATTEST:
By: By:
-------------------------------- ----------------------------------
, President
By:
-------------------------------- --------------------------------------
XXXX X. X'XXXX
8
EXHIBIT C-2
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT made and entered into this 12th day of
June, 2001 ("Agreement"), by and between XXXXXXX GLOBAL CORPORATION, a Delaware
corporation with an address of 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Company"), and XXXXXX XXXXXXX, an individual with an address at 000 Xxxx 00xx
Xxxxxx, Xxx. 00X, Xxx Xxxx, XX 00000 ("Indemnitee").
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify current and former members of the
Board of Directors of its subsidiaries (collectively, the "Board") to the
fullest extent permitted by applicable law;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Services by Indemnitee. Indemnitee served as a director of the
Company's subsidiary, Westminster Securities Corp. ("Westminster").
Section 2. Indemnification. The Company shall indemnify Indemnitee to the
fullest extent permitted by applicable law in effect on the date hereof or as
such laws may from time to time be amended in connection with or related to his
service as a director or officer of Westminster. The rights of indemnification
of Indemnitee provided hereunder shall include but shall not be limited to those
rights set forth herein, except that no indemnification shall be paid to
Indemnitee:
(a) on account of any suit in which judgment is rendered against
Indemnitee 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 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(b) on account of Indemnitee's conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest, or to constitute willful
misconduct;
(c) to the extent expressly prohibited by applicable law;
(d) for which payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable indemnity clause,
by-law or agreement, except in respect of any excess beyond payment under such
insurance, clause, by-law or agreement;
(e) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful (and, in this respect, both
the Company and
Indemnitee have been advised that the Securities and Exchange Commission
believes that indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore, unenforceable and
that claims for indemnification should be submitted to appropriate courts for
adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by
Indemnitee, or any proceeding by Indemnitee against the Company or its
directors, officers, employees or other Indemnitees, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board, (iii) such indemnification is provided by the Company,
in its sole discretion, pursuant to the powers vested in the Company under
applicable law, or (iv) except as provided in Sections 10 and 13 hereof.
Section 3. Action or Proceeding Other Than an Action by or in the Right of
the Company. Indemnitee shall be entitled to the indemnification rights provided
in this section if he is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative in nature, other than an action by or
in the right of the Company, by reason of the fact that he is or was a director,
officer, employee, agent or fiduciary of the Company or any affiliate or
subsidiary of the Company (including Westminster) or is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary of
any other entity, including, but not limited to, another corporation,
partnership, joint venture or trust, or by reason of anything done or not done
by him in any such capacity. Pursuant to this section, Indemnitee shall be
indemnified against all expenses (including attorneys' fees), costs, claims,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
(including, but not limited to, the investigation, defense and appeal thereof),
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 4. Actions by or in the Right of the Company. Indemnitee shall be
entitled to the indemnification rights provided in this section if he is a
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, agent or fiduciary of the
Company or any affiliate or subsidiary of the Company (including Westminster) or
is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary of any other entity, including, but not limited to,
another corporation, partnership, joint venture or trust, or by reason of
anything done or not done by him in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all expenses (including attorneys'
fees), costs and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding (including, but not
limited to, the investigation, defense and appeal thereof) if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, that no such indemnification shall
2
be made in respect of any claim, issue, or matter as to which applicable law
expressly prohibits such indemnification by reason of an adjudication of
liability of Indemnitee to the Company, unless, and only to the extent that, the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite such
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for such
expenses and costs as such court shall deem proper.
Section 5. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Agreement, to the extent
that Indemnitee has served as a witness on behalf of the Company or has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 3 and 4 hereof, or in defense of any claim,
issue or matter therein, including, without limitation, the dismissal of an
action without prejudice, he shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by him or
on his behalf in connection therewith.
Section 6. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses (including attorneys' fees), costs, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the defense, investigation, settlement or appeal of
any action, suit, investigation or proceeding described in Section 3 or 4
hereof, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such expenses (including
attorneys' fees), costs, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him to which Indemnitee is
entitled.
Section 7. Determination of Entitlement to Indemnification. Upon written
request by Indemnitee for indemnification pursuant to Section 3 or 4 hereof, the
entitlement of the Indemnitee to indemnification pursuant to the terms of this
Agreement shall be determined by the following person or persons who shall be
empowered to make such determination: (a) the Board by a majority vote of a
quorum consisting of Disinterested Directors (as hereinafter defined); or (b) if
such a quorum is not obtainable or, even if obtainable, if the Board by the
majority vote of Disinterested Directors so directs, by Independent Counsel (as
hereinafter defined) in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee. Such Independent Counsel shall be selected by the Board
and approved by Indemnitee. Upon failure of the Board to so select such
Independent Counsel or upon failure of Indemnitee to so approve same, such
Independent Counsel shall be selected by the Chancellor of the State of Delaware
or such other person as the Chancellor shall designate to make such selection.
Such determination of entitlement to indemnification shall be made not later
than 45 days after receipt by the Company of a written request for
indemnification. Such request shall include documentation or information which
is necessary for such determination and which is reasonably available to
Indemnitee. Any costs or expenses (including attorneys' fees) incurred by
Indemnitee in connection with his request for indemnification hereunder shall be
borne by the Company. The Company hereby indemnifies and agrees to hold
3
Indemnitee harmless therefrom irrespective of the outcome of the determination
of Indemnitee's entitlement to indemnification. If the person making such
determination shall determine that Indemnitee is entitled to indemnification as
to part (but not all) of the application for indemnification, such person shall
reasonably prorate such partial indemnification among such claims, issues or
matters.
Section 8. Presumptions and Effect of Certain Proceedings. The Secretary
of the Company shall, promptly upon receipt of Indemnitee's request for
indemnification, advise in writing the Board or such other person or persons
empowered to make the determination as provided in Section 7 that Indemnitee has
made such request for indemnification. Upon making such request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
hereunder and the Company shall have the burden of proof in the making of any
determination contrary to such presumption. If the person or persons so
empowered to make such determination shall have failed to make the requested
indemnification within 45 days after receipt by the Company of such request, the
requisite determination of entitlement to indemnification shall be deemed to
have been made and Indemnitee shall be absolutely entitled to such
indemnification, absent actual and material fraud in the request for
indemnification. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or
conviction, or upon a plea of xxxx contendere or its equivalent, shall not, of
itself: (a) create a presumption that Indemnitee did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that his conduct was
unlawful; or (b) otherwise adversely affect the rights of Indemnitee to
indemnification except as may be provided herein.
Section 9. Advancement of Expenses and Costs. All reasonable expenses and
costs incurred by Indemnitee (including attorneys' fees, retainers and advances
of disbursements required of Indemnitee) shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding at the request of
Indemnitee within twenty days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time. Indemnitee's entitlement to such expenses shall include those incurred in
connection with any proceeding by Indemnitee seeking an adjudication or award in
arbitration pursuant to this Agreement. Such statement or statements shall
reasonably evidence the expenses and costs incurred by him in connection
therewith and shall include or be accompanied by an undertaking by or on behalf
of Indemnitee to repay such amount if it is ultimately determined that
Indemnitee is not entitled to be indemnified against such expenses and costs by
the Company as provided by this Agreement or otherwise.
Section 10. Remedies of Indemnitee in Cases of Determination Not to
Indemnify or to Advance Expenses. In the event that a determination is made that
Indemnitee is not entitled to indemnification hereunder or if payment has not
been timely made following a determination of entitlement to indemnification
pursuant to Sections 7 and 8 hereof, or if expenses are not advanced in
accordance with Section 9 hereof, Indemnitee shall be
4
entitled to a final adjudication in an appropriate court of the State of
Delaware or any other court of competent jurisdiction of his entitlement to such
indemnification or advance. Alternatively, Indemnitee at his option may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association, such award to be made within
sixty days following the filing of the demand for arbitration. The Company shall
not oppose Indemnitee's right to seek any such adjudication or award in
arbitration or any other claim. Such judicial proceeding or arbitration shall be
made de novo and Indemnitee shall not be prejudiced by reason of a determination
(if so made) that he is not entitled to indemnification. If a determination is
made or deemed to have been made pursuant to the terms of Section 7 or Section 8
hereof that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination and is precluded from asserting that such
determination has not been made or that the procedure by which such
determination was made is not valid, binding and enforceable. The Company
further agrees to stipulate in any such court or before any such arbitrator that
the Company is bound by all the provisions of this Agreement and is precluded
from making any assertion to the contrary. If the court or arbitrator shall
determine that Indemnitee is entitled to any indemnification hereunder, the
Company shall pay all reasonable expenses (including attorneys' fees) and costs
actually incurred by Indemnitee in connection with such adjudication or award in
arbitration (including, but not limited to, any appellate proceedings).
Section 11. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in writing of the commencement thereof;
but the omission to so notify the Company will not relieve the Company from any
liability that it may have to Indemnitee otherwise than under this Agreement.
Notwithstanding any other provision of this Agreement, with respect to any such
action, suit or proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided in this Section 11(b), to the extent that
it may wish, the Company, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to so assume the defense thereof, the Company shall not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ his own counsel in such action, suit or
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
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action or (iii) the Company shall not in fact
have employed counsel to assume the defense
5
of such action, in each of which cases the fees and expenses of counsel shall be
at the expense of the Company. The Company shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of the Company
or as to which Indemnitee shall have made the conclusion provided for in (ii)
above.
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner that would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold their consent to any proposed settlement.
Section 12. Other Rights to Indemnification. The indemnification and
advancement of expenses (including attorneys' fees) and costs provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may now or in the future be entitled under any provision of the by-laws of the
Company, any agreement or provision of the Certificate of Incorporation of the
Company, vote of stockholders or Disinterested Directors, provision of law, or
otherwise.
Section 13. Attorneys' Fees and Other Expenses to Enforce Agreement. In
the event that Indemnitee institutes, is subject to or intervenes in any
proceeding in which the validity or enforceability of this Agreement is at issue
or seeks an adjudication or award in arbitration to enforce his rights under, or
to recover damages for breach of, this Agreement, Indemnitee, if he prevails in
whole or in part in such action, shall be entitled to recover from the Company
(in addition to all sums collectible as a result of such adjudication or award)
and shall be indemnified by the Company against, any actual expenses for
attorneys' fees and disbursements reasonably incurred by him.
Section 14. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) 10 years after Indemnitee has ceased to occupy
any of the positions or have any of the relationships described in Sections 3
and 4 of this Agreement; and (b) the final termination of all pending or
threatened actions, suits, proceedings or investigations to which Indemnitee may
be subject by reason of the fact that he is or was a director, officer,
employee, agent or fiduciary of the Company or any affiliate or subsidiary
thereof or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of any other entity, including, but not
limited to, another corporation, partnership, joint venture or trust, or by
reason of anything done or not done by him in any such capacity. The
indemnification provided under this Agreement shall continue as to Indemnitee
even though he may have ceased to be a director or officer of the Company. This
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of Indemnitee and his spouse, assigns, heirs,
devises, executors, administrators or other legal representatives.
Notwithstanding anything to the contrary herein, no indemnification or
advancement of expenses described herein shall be applicable to Indemnitee or
paid by the Company with respect to actions, suits or proceedings solely
relating to Indemnitee's service as a director or officer of Westminster either
prior to May 27, 1999 or after the date hereof.
6
Section 15. Severability. 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 portions of any paragraphs of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal, or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
Section 16. 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 but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
Section 17. Headings. The headings of the paragraphs 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.
Section 18. Definitions. For purposes of this Agreement:
(a)"Disinterested Director" shall mean a director of the Company who is
not or was not a party to the action, suit, investigation or proceeding in
respect of which indemnification is being sought by Indemnitee.
(b)"Independent Counsel" shall mean a law firm or a member of a law firm
that neither is presently nor in the past five years has been retained to
represent: (i) the Company or Indemnitee in any matter material to either such
party, or (ii) any other party to the action, suit, investigation or proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's right to indemnification under this
Agreement.
Section 19. 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.
7
Section 20. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) if delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed or (ii) if 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 Indemnitee, to Xxxxxx Xxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx. 00X,
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxxx & Associates, Counselors At Law, P.C.
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(b) If to the Company, to the address appearing in the first paragraph of
this Agreement, Attn: President
with a copy to:
Beckman, Millman, Barandes and Xxxxxxx LLP
Suite 1313
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 21. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware.
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXXXXXX GLOBAL CORPORATION
ATTEST:
By: By:
-------------------------------- ---------------------------------
, President
ATTEST:
By:
-------------------------------- -------------------------------------
XXXXXX XXXXXXX
9
EXHIBIT C-3
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT made and entered into this 12th day of
June, 2001 ("Agreement"), by and between XXXXXXX GLOBAL CORPORATION, a Delaware
corporation with an address of 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Company"), and XXXXX X. XXXXXX, an individual with an address at 000 Xxxxxxx
Xxxxxx, Xxxx Xxxxxxxxx, XX 00000 ("Indemnitee").
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify current and former members of the
Board of Directors of its subsidiaries (collectively, the "Board") to the
fullest extent permitted by applicable law;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Services by Indemnitee. Indemnitee served as a director of the
Company's subsidiary, Westminster Securities Corp. ("Westminster").
Section 2. Indemnification. The Company shall indemnify Indemnitee to the
fullest extent permitted by applicable law in effect on the date hereof or as
such laws may from time to time be amended in connection with or related to his
service as a director or officer of Westminster. The rights of indemnification
of Indemnitee provided hereunder shall include but shall not be limited to those
rights set forth herein, except that no indemnification shall be paid to
Indemnitee:
(a) on account of any suit in which judgment is rendered against
Indemnitee 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 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(b) on account of Indemnitee's conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest, or to constitute willful
misconduct;
(c) to the extent expressly prohibited by applicable law;
(d) for which payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable indemnity clause,
by-law or agreement, except in respect of any excess beyond payment under such
insurance, clause, by-law or agreement;
(e) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful (and, in this respect, both
the Company and
Indemnitee have been advised that the Securities and Exchange
Commission believes that indemnification for liabilities arising under the
federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by
Indemnitee, or any proceeding by Indemnitee against the Company or its
directors, officers, employees or other Indemnitees, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board, (iii) such indemnification is provided by the Company,
in its sole discretion, pursuant to the powers vested in the Company under
applicable law, or (iv) except as provided in Sections 10 and 13 hereof.
Section 3. Action or Proceeding Other Than an Action by or in the Right of
the Company. Indemnitee shall be entitled to the indemnification rights provided
in this section if he is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative in nature, other than an action by or
in the right of the Company, by reason of the fact that he is or was a director,
officer, employee, agent or fiduciary of the Company or any affiliate or
subsidiary of the Company (including Westminster) or is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary of
any other entity, including, but not limited to, another corporation,
partnership, joint venture or trust, or by reason of anything done or not done
by him in any such capacity. Pursuant to this section, Indemnitee shall be
indemnified against all expenses (including attorneys' fees), costs, claims,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
(including, but not limited to, the investigation, defense and appeal thereof),
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 4. Actions by or in the Right of the Company. Indemnitee shall be
entitled to the indemnification rights provided in this section if he is a
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, agent or fiduciary of the
Company or any affiliate or subsidiary of the Company (including Westminster) or
is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary of any other entity, including, but not limited to,
another corporation, partnership, joint venture or trust, or by reason of
anything done or not done by him in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all expenses (including attorneys'
fees), costs and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding (including, but not
limited to, the investigation, defense and appeal thereof) if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, that no such indemnification shall
2
be made in respect of any claim, issue, or matter as to which applicable law
expressly prohibits such indemnification by reason of an adjudication of
liability of Indemnitee to the Company, unless, and only to the extent that, the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite such
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for such
expenses and costs as such court shall deem proper.
Section 5. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Agreement, to the extent
that Indemnitee has served as a witness on behalf of the Company or has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 3 and 4 hereof, or in defense of any claim,
issue or matter therein, including, without limitation, the dismissal of an
action without prejudice, he shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by him or
on his behalf in connection therewith.
Section 6. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses (including attorneys' fees), costs, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the defense, investigation, settlement or appeal of
any action, suit, investigation or proceeding described in Section 3 or 4
hereof, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such expenses (including
attorneys' fees), costs, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him to which Indemnitee is
entitled.
Section 7. Determination of Entitlement to Indemnification. Upon written
request by Indemnitee for indemnification pursuant to Section 3 or 4 hereof, the
entitlement of the Indemnitee to indemnification pursuant to the terms of this
Agreement shall be determined by the following person or persons who shall be
empowered to make such determination: (a) the Board by a majority vote of a
quorum consisting of Disinterested Directors (as hereinafter defined); or (b) if
such a quorum is not obtainable or, even if obtainable, if the Board by the
majority vote of Disinterested Directors so directs, by Independent Counsel (as
hereinafter defined) in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee. Such Independent Counsel shall be selected by the Board
and approved by Indemnitee. Upon failure of the Board to so select such
Independent Counsel or upon failure of Indemnitee to so approve same, such
Independent Counsel shall be selected by the Chancellor of the State of Delaware
or such other person as the Chancellor shall designate to make such selection.
Such determination of entitlement to indemnification shall be made not later
than 45 days after receipt by the Company of a written request for
indemnification. Such request shall include documentation or information which
is necessary for such determination and which is reasonably available to
Indemnitee. Any costs or expenses (including attorneys' fees) incurred by
Indemnitee in connection with his request for indemnification hereunder shall be
borne by the Company. The Company hereby indemnifies and agrees to hold
3
Indemnitee harmless therefrom irrespective of the outcome of the determination
of Indemnitee's entitlement to indemnification. If the person making such
determination shall determine that Indemnitee is entitled to indemnification as
to part (but not all) of the application for indemnification, such person shall
reasonably prorate such partial indemnification among such claims, issues or
matters.
Section 8. Presumptions and Effect of Certain Proceedings. The Secretary
of the Company shall, promptly upon receipt of Indemnitee's request for
indemnification, advise in writing the Board or such other person or persons
empowered to make the determination as provided in Section 7 that Indemnitee has
made such request for indemnification. Upon making such request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
hereunder and the Company shall have the burden of proof in the making of any
determination contrary to such presumption. If the person or persons so
empowered to make such determination shall have failed to make the requested
indemnification within 45 days after receipt by the Company of such request, the
requisite determination of entitlement to indemnification shall be deemed to
have been made and Indemnitee shall be absolutely entitled to such
indemnification, absent actual and material fraud in the request for
indemnification. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or
conviction, or upon a plea of xxxx contendere or its equivalent, shall not, of
itself: (a) create a presumption that Indemnitee did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that his conduct was
unlawful; or (b) otherwise adversely affect the rights of Indemnitee to
indemnification except as may be provided herein.
Section 9. Advancement of Expenses and Costs. All reasonable expenses and
costs incurred by Indemnitee (including attorneys' fees, retainers and advances
of disbursements required of Indemnitee) shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding at the request of
Indemnitee within twenty days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time. Indemnitee's entitlement to such expenses shall include those incurred in
connection with any proceeding by Indemnitee seeking an adjudication or award in
arbitration pursuant to this Agreement. Such statement or statements shall
reasonably evidence the expenses and costs incurred by him in connection
therewith and shall include or be accompanied by an undertaking by or on behalf
of Indemnitee to repay such amount if it is ultimately determined that
Indemnitee is not entitled to be indemnified against such expenses and costs by
the Company as provided by this Agreement or otherwise.
Section 10. Remedies of Indemnitee in Cases of Determination Not to
Indemnify or to Advance Expenses. In the event that a determination is made that
Indemnitee is not entitled to indemnification hereunder or if payment has not
been timely made following a determination of entitlement to indemnification
pursuant to Sections 7 and 8 hereof, or if expenses are not advanced in
accordance with Section 9 hereof, Indemnitee shall be
4
entitled to a final adjudication in an appropriate court of the State of
Delaware or any other court of competent jurisdiction of his entitlement to such
indemnification or advance. Alternatively, Indemnitee at his option may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association, such award to be made within
sixty days following the filing of the demand for arbitration. The Company shall
not oppose Indemnitee's right to seek any such adjudication or award in
arbitration or any other claim. Such judicial proceeding or arbitration shall be
made de novo and Indemnitee shall not be prejudiced by reason of a determination
(if so made) that he is not entitled to indemnification. If a determination is
made or deemed to have been made pursuant to the terms of Section 7 or Section 8
hereof that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination and is precluded from asserting that such
determination has not been made or that the procedure by which such
determination was made is not valid, binding and enforceable. The Company
further agrees to stipulate in any such court or before any such arbitrator that
the Company is bound by all the provisions of this Agreement and is precluded
from making any assertion to the contrary. If the court or arbitrator shall
determine that Indemnitee is entitled to any indemnification hereunder, the
Company shall pay all reasonable expenses (including attorneys' fees) and costs
actually incurred by Indemnitee in connection with such adjudication or award in
arbitration (including, but not limited to, any appellate proceedings).
Section 11. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in writing of the commencement thereof;
but the omission to so notify the Company will not relieve the Company from any
liability that it may have to Indemnitee otherwise than under this Agreement.
Notwithstanding any other provision of this Agreement, with respect to any such
action, suit or proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided in this Section 11(b), to the extent that
it may wish, the Company, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to so assume the defense thereof, the Company shall not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ his own counsel in such action, suit or
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
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action or (iii) the Company shall not in fact
have employed counsel to assume the defense
5
of such action, in each of which cases the fees and expenses of counsel shall be
at the expense of the Company. The Company shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of the Company
or as to which Indemnitee shall have made the conclusion provided for in (ii)
above.
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner that would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold their consent to any proposed settlement.
Section 12. Other Rights to Indemnification. The indemnification and
advancement of expenses (including attorneys' fees) and costs provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may now or in the future be entitled under any provision of the by-laws of the
Company, any agreement or provision of the Certificate of Incorporation of the
Company, vote of stockholders or Disinterested Directors, provision of law, or
otherwise.
Section 13. Attorneys' Fees and Other Expenses to Enforce Agreement. In
the event that Indemnitee institutes, is subject to or intervenes in any
proceeding in which the validity or enforceability of this Agreement is at issue
or seeks an adjudication or award in arbitration to enforce his rights under, or
to recover damages for breach of, this Agreement, Indemnitee, if he prevails in
whole or in part in such action, shall be entitled to recover from the Company
(in addition to all sums collectible as a result of such adjudication or award)
and shall be indemnified by the Company against, any actual expenses for
attorneys' fees and disbursements reasonably incurred by him.
Section 14. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) 10 years after Indemnitee has ceased to occupy
any of the positions or have any of the relationships described in Sections 3
and 4 of this Agreement; and (b) the final termination of all pending or
threatened actions, suits, proceedings or investigations to which Indemnitee may
be subject by reason of the fact that he is or was a director, officer,
employee, agent or fiduciary of the Company or any affiliate or subsidiary
thereof or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of any other entity, including, but not
limited to, another corporation, partnership, joint venture or trust, or by
reason of anything done or not done by him in any such capacity. The
indemnification provided under this Agreement shall continue as to Indemnitee
even though he may have ceased to be a director or officer of the Company. This
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of Indemnitee and his spouse, assigns, heirs,
devises, executors, administrators or other legal representatives.
Notwithstanding anything to the contrary herein, no indemnification or
advancement of expenses described herein shall be applicable to Indemnitee or
paid by the Company with respect to actions, suits or proceedings solely
relating to Indemnitee's service as a director or officer of Westminster either
prior to May 27, 1999 or after the date hereof.
6
Section 15. Severability. 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 portions of any paragraphs of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal, or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
Section 16. 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 but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
Section 17. Headings. The headings of the paragraphs 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.
Section 18. Definitions. For purposes of this Agreement:
(a)"Disinterested Director" shall mean a director of the Company who is
not or was not a party to the action, suit, investigation or proceeding in
respect of which indemnification is being sought by Indemnitee.
(b)"Independent Counsel" shall mean a law firm or a member of a law firm
that neither is presently nor in the past five years has been retained to
represent: (i) the Company or Indemnitee in any matter material to either such
party, or (ii) any other party to the action, suit, investigation or proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's right to indemnification under this
Agreement.
Section 19. 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.
7
Section 20. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) if delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed or (ii) if 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 Indemnitee, to Xxxxx X. Xxxxxx, 000 Xxxxxxx Xxxxxx, Xxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxxxxx & Associates, Counselors At Law, P.C.
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(b) If to the Company, to the address appearing in the first paragraph of
this Agreement, Attn: President
with a copy to:
Beckman, Millman, Barandes and Xxxxxxx LLP
Suite 1313
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 21. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware.
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXXXXXX GLOBAL CORPORATION
ATTEST:
By: By:
-------------------------------- -------------------------------
, President
ATTEST:
By:
-------------------------------- -----------------------------------
XXXXX X. XXXXXX
9
