EXHIBIT 10.12
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into effective as of ____________, 1998
between Xxxx Group, Inc., a Delaware corporation (the "Company"), and
____________________________________ (the "Indemnitee").
RECITALS
A. The Company is concerned with the retention of qualified, competent
persons to serve as directors and officers of the Company.
B. Highly competent persons are becoming increasingly reluctant to serve
publicly-held corporations as directors and officers or in other capacities
unless they are provided with adequate protection through insurance and/or
adequate indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the Company.
C. As an inducement for the Indemnitee to serve or continue to serve as a
director or officer of the Company, the Indemnitee requires substantial
protection against personal liability for the Indemnitee's actions in serving as
a director or officer of the Company.
D. The Company's Certificate of Incorporation and Bylaws currently
provide for mandatory indemnification of officers and directors of the Company
to the fullest extent permitted under Delaware law.
E. In order to provide the Indemnitee with specific contractual assurance
that the protection provided by the Company's Certificate of Incorporation and
Bylaws will be available to the Indemnitee (regardless of, among other things,
any amendment to or revocation of such Certificate of Incorporation and Bylaws
or any change in the composition of the Company's Board of Directors or
acquisition transaction relating to the Company), the Company wishes to provide
for the indemnification of, and the advancing of expenses to, the Indemnitee to
the fullest extent (whether partial or complete) permitted by law and as set
forth in this Agreement.
F. In addition, to the extent insurance is maintained, the Company wishes
to provide for the continued coverage of the Indemnitee under the Company's
directors' and officers' liability insurance policies.
AGREEMENT
NOW THEREFORE, in consideration of the premises and covenants contained
herein, the Company and the Indemnitee do hereby agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, capitalized terms
have the following meaning:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CHANGE IN CONTROL" means any of the following:
(1) the sale, lease, exchange or other transfer, directly or
indirectly, of substantially all of the assets of the Company (in one
transaction or in a series of related transactions) to a person or
entity that is not controlled by the Company;
(2) the approval by the shareholders of the Company of any plan
or proposal for the liquidation or dissolution of the Company;
(3) any person becomes after the effective date of the Plan the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of (i) 20% or more, but less than 50%, of the
combined voting power of the Company's outstanding securities
ordinarily having the right to vote at elections of directors, unless
the transaction resulting in such ownership has been approved in
advance by the Continuity Directors (as defined in Section 13.2
below), or (ii) 50% or more of the combined voting power of the
Company's outstanding securities ordinarily having the right to vote
at elections of directors (regardless of any approval by the
Continuity Directors);
(4) a merger or consolidation to which the Company is a party if
the shareholders of the Company immediately prior to effective date of
such merger or consolidation have "beneficial ownership" (as defined
in Rule 13d-3 under the Exchange Act), immediately following the
effective date of such merger or consolidation, of securities of the
surviving corporation representing (i) less than 80%, but more than
50%, of the combined voting power of the surviving corporation's then
outstanding securities ordinarily having the right to vote at
elections of directors, unless such merger or consolidation has been
approved in advance by the Continuity Directors, or (ii) 50% or less
of the combined voting power of the surviving corporation's then
outstanding securities ordinarily having the right to vote at
elections of directors (regardless of any approval by the Continuity
Directors); or
(5) the Continuity Directors cease for any reason to constitute
at least a majority of the Board.
Notwithstanding anything in this Section b to the contrary, the
transfer by a Dirk Stockholder (as defined below) of shares of Common
Stock or rights to acquire shares of Common Stock to the following
persons or entities, without consideration in money or money's worth
(such as by gift, bequest or devise), and the exercise or conversion
of any such transferred rights to acquire shares, will not, in and of
itself, be deemed to constitute a Change in Control for purposes of
this Section 13: (i) transfers to any spouse, child, heir, xxxxxx or
successor of such Dirk Stockholder; (ii) transfers to any trust
created for the benefit of such Dirk Stockholder or any such spouse,
child, heir, xxxxxx or successor, and amendments of or distributions
from any such trust; or (iii) transfers to any other Dirk Stockholder.
A "Dirk Stockholder" will mean Xxxxxxx X. Xxxx, Xxxx X. Xxxx, Xxxxx X.
Dirk, Xxxxxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, The
Dirk 1997 Education Trust, The Dirk Family Trust UTD March 6, 1990 or
The Dirk 1998 Alaska Trust.
(c) "CORPORATE STATUS" describes the status of a person who is or was
a director, officer, employee, agent or fiduciary of the Company or is or
was serving at the request of the Company as a director, officer, employee
or agent of any Other Enterprise.
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(d) "DISINTERESTED DIRECTOR" means a director of the Company who is
not and was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(e) "EFFECTIVE DATE" means the date first set forth above.
(f) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(g) "EXPENSES" include all reasonable attorneys' fees, retainers,
court costs, transcript costs, expert fees, witness fees, travel expenses,
duplicating and printing costs and all other disbursements or expenses of
the type customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing to
be a witness in any Proceeding.
(h) "GOOD FAITH" means the Indemnitee having acted in good faith and
in a manner that the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal
Proceeding, having had no reasonable cause to believe that the Indemnitee's
conduct was unlawful.
(i) "CONTINUITY DIRECTOR" means any individual who is a member of the
Board on the Effective Date and any individual who subsequently becomes a
member of the Board whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of
the Continuity Directors (either by specific vote or by approval of the
Company's proxy statement in which such individual is named as a nominee
for director without objection to such nomination).
(j) "INDEPENDENT COUNSEL" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent
(i) the Company or the Indemnitee in any matter material to either such
party, or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" does 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 the Indemnitee in an action
to determine the Indemnitee's rights under this Agreement.
(k) "OTHER ENTERPRISE" means any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise of which
the Indemnitee is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary.
(l) "PROCEEDING" includes any action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative hearing or any
other actual, threatened or completed proceeding whether civil, criminal,
administrative or investigative, other than one initiated by the
Indemnitee. For purposes of the foregoing sentence, a "Proceeding" will
not be deemed to have been initiated by the Indemnitee where the Indemnitee
seeks pursuant to Section 8 of this Agreement to enforce the Indemnitee's
rights under this Agreement.
2. TERM OF AGREEMENT. This Agreement will continue until and terminate
upon the later of (i) 10 years after the date that the Indemnitee has ceased to
serve as a director, officer, employee, agent or fiduciary of the Company or any
Other Enterprise, or (ii) the final termination (as to which all rights of
appeal have been exhausted or lapsed) of all pending Proceedings in respect of
which the Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder and of any proceeding commenced by the Indemnitee pursuant to
Section 8 of this Agreement.
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3. AGREEMENT TO SERVE; NOTICE OF PROCEEDINGS. The Indemnitee agrees to
serve as a director or officer of the Company for so long as the Indemnitee is
duly appointed or elected and qualified or until such time as the Indemnitee
resigns from such position; provided, however, that nothing contained in this
Agreement is intended to create on the part of the Indemnitee any right to
continued employment or service with the Company or any Other Enterprise. The
Indemnitee agrees promptly to notify the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter that may be subject to
indemnification or advancement of Expenses under this Agreement; provided,
however, that failure of the Indemnitee to give such notice promptly will not
relieve the Company from any liability that it may have to the Indemnitee
otherwise than under this Agreement and will relieve the Company from liability
under this Agreement only to the extent that the Company has been prejudiced.
4. INDEMNIFICATION.
(a) IN GENERAL. In connection with any Proceeding, the Company
agrees to indemnify, and advance Expenses, to the Indemnitee as provided in
this Agreement and to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable law may
thereafter from time to time permit.
(b) PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. If, by reason of the Indemnitee's Corporate Status, the
Indemnitee is, or is threatened to be made, a party to any Proceeding,
other than a Proceeding by or in the right of the Company, the Company will
indemnify the Indemnitee against Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by the
Indemnitee or on the Indemnitee's behalf in connection with such Proceeding
or any claim, issue or matter therein, if the Indemnitee acted in Good
Faith.
(c) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. If, by reason of
the Indemnitee's Corporate Status, the Indemnitee is, or is threatened to
be made, a party to any Proceeding brought by or in the right of the
Company to procure a judgment in its favor, the Company will indemnify the
Indemnitee against Expenses, judgments, penalties, and amounts paid in
settlement, actually and reasonably incurred by the Indemnitee or on the
Indemnitee's behalf in connection with such Proceeding or any claim, issue
or matter therein, if the Indemnitee acted in Good Faith. Notwithstanding
the foregoing, no such indemnification will be made if applicable law
prohibits such indemnification; provided, however, that, if applicable law
so permits, indemnification will nevertheless be made by the Company in
such event if and only to the extent that the Court of Chancery of the
State of Delaware (or the court in which such Proceeding has been brought
or is pending) determines.
(d) INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
Notwithstanding any other provision of this Agreement, to the extent that
the Indemnitee is, by reason of the Indemnitee's Corporate Status, a party
to and is successful, on the merits or otherwise, in any Proceeding, the
Indemnitee will be indemnified to the maximum extent permitted by
applicable law against all Expenses, judgments, penalties, fines, and
amounts paid in settlement, actually and reasonably incurred by the
Indemnitee or on the Indemnitee's behalf in connection with such Proceeding
or any claim, issue or matter therein. If the Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in
such Proceeding, the Company will indemnify the Indemnitee to the maximum
extent permitted by applicable law against all Expenses, judgments,
penalties, fines, and amounts paid in settlement, actually and reasonably
incurred by the Indemnitee or on the Indemnitee's behalf in connection with
each successfully resolved claim, issue or matter. For
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purposes of this Section 4(d), and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, will be deemed to be a successful result as to such
claim, issue or matter.
(e) INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee is, by
reason of the Indemnitee's Corporate Status, a witness in any Proceeding,
the Indemnitee will be indemnified against all Expenses actually and
reasonably incurred by the Indemnitee or on the Indemnitee's behalf in
connection with such Proceeding or any claim, issue or matter therein.
5. ADVANCEMENT OF EXPENSES. Notwithstanding any provision to the
contrary in Section 6 of this Agreement, the Company will advance all reasonable
Expenses that, by reason of the Indemnitee's Corporate Status, were incurred by
or on behalf of the Indemnitee in connection with any Proceeding, within 20 days
after the receipt by the Company of a statement or statements from the
Indemnitee requesting such advance or advances, whether prior to or after final
disposition of such Proceeding. Such statement or statements must reasonably
evidence the Expenses incurred by the Indemnitee and must include or be preceded
or accompanied by an undertaking by or on behalf of the Indemnitee to repay any
Expenses if it is ultimately determined (as to which all rights of appeal have
been exhausted or lapsed) that the Indemnitee is not entitled to be indemnified
against such Expenses. Any advance and undertakings to repay pursuant to this
Section 5 will be unsecured and interest free.
6. PROCEDURES FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) INITIAL REQUEST. To obtain indemnification under this Agreement,
the Indemnitee must submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to indemnification
under this Agreement. The Chief Executive Officer or Secretary of the
Company will promptly advise the Board in writing that the Indemnitee has
requested indemnification.
(b) METHOD OF DETERMINATION. A determination (if required by
applicable law) with respect to the Indemnitee's entitlement to
indemnification will be made as follows:
(1) If a Change in Control has occurred, unless the Indemnitee
requests in writing that such determination be made in accordance with
clause (2) of this Section 6(b), the determination will be made by
Independent Counsel in a written opinion to the Board, a copy of which
will be delivered to the Indemnitee.
(2) If a Change of Control has not occurred, and subject to
Section 6(e) of this Agreement, the determination will be made by the
Board by a majority vote of a quorum consisting of Disinterested
Directors. In the event that a quorum of the Board consisting of
Disinterested Directors is not obtainable or, even if obtainable, such
quorum of Disinterested Directors so directs, the determination will
be made by Independent Counsel in a written opinion to the Board, a
copy of which will be delivered to the Indemnitee.
(c) SELECTION, PAYMENT AND DISCHARGE OF INDEPENDENT COUNSEL. In the
event that the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 6(b) of this Agreement, the
Independent Counsel will be selected, paid and discharged in the following
manner:
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(1) If a Change of Control has not occurred, the Independent
Counsel will be selected by the Board, and the Company will give
written notice to the Indemnitee advising the Indemnitee of the
identity of the Independent Counsel so selected.
(2) If a Change of Control has occurred, the Independent Counsel
will be selected by the Indemnitee (unless the Indemnitee requests
that such selection be made by the Board, in which event clause (1) of
this Section 6(c) applies), and the Indemnitee must give written
notice to the Company advising it of the identity of the Independent
Counsel so selected.
(3) Following the initial selection described in clauses (1) and
(2) of this Section 6(c), the Indemnitee or the Company, as the case
may be, may, within seven days after such written notice of selection
has been given, deliver to the other party a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 1(j) of this Agreement,
and the objection must set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the person
so selected will act as Independent Counsel. If such written
objection is made, the Independent Counsel so selected may not serve
as Independent Counsel unless and until a court has determined that
such objection is without merit.
(4) Either the Company or the Indemnitee may petition the Court
of Chancery of the State of Delaware if the parties have been unable
to agree on the selection of Independent Counsel within 20 days after
submission by the Indemnitee of a written request for indemnification
pursuant to Section 6(a) of this Agreement. Such petition will
request a determination whether an objection to the party's selection
is without merit and/or seek the appointment as Independent Counsel of
a person selected by the Court or by such other person as the Court
may designate. A person so appointed will act as Independent Counsel
under Section 6(b) of this Agreement.
(5) The Company will pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel
in connection with acting pursuant to this Agreement, and the Company
will pay all reasonable fees and expenses incident to the procedures
of this Section 6(c), regardless of the manner in which such
Independent Counsel was selected or appointed.
(6) Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 8(a)(3) of this Agreement, Independent
Counsel will be discharged and relieved of any further responsibility
in such capacity (subject to the applicable standards of professional
conduct then prevailing).
(d) COOPERATION. The Indemnitee agrees to cooperate with the person,
persons or entity making the determination with respect to the Indemnitee's
entitlement to indemnification under this Agreement, including providing to
such person, persons or entity upon reasonable advance request any
documentation or information that is not privileged or otherwise protected
from disclosure and that is reasonably available to the Indemnitee and
reasonably necessary to such determination. Any costs or expenses
(including attorneys' fees and disbursements) incurred by the Indemnitee in
so cooperating with the person, persons or entity making such determination
will be borne by the Company (irrespective of the determination as to the
Indemnitee's entitlement to indemnification), and the Company hereby
indemnifies and agrees to hold the Indemnitee harmless therefrom.
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(e) PAYMENT. If it is determined that the Indemnitee is entitled to
indemnification, payment to the Indemnitee must be made within 10 days
after such determination.
7. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) BURDEN OF PROOF. In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or entity
making such determination will presume that the Indemnitee is entitled to
indemnification under this Agreement if the Indemnitee has submitted a
request for indemnification in accordance with Section 6(a) of this
Agreement, and the Company will have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity
of any determination contrary to that presumption.
(b) EFFECT OF OTHER PROCEEDINGS. The termination of any Proceeding
or of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of NOLO CONTENDERE or its equivalent, will not
(except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of the Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in Good Faith.
(c) RELIANCE AS SAFE HARBOR. For purposes of any determination of
Good Faith, the Indemnitee will be deemed to have acted in Good Faith if
the Indemnitee's action is based on the records or books of account of the
Company or any Other Enterprise, including financial statements, or on
information supplied to the Indemnitee by the officers of the Company or
any Other Enterprise in the course of their duties, or on the advice of
legal counsel for the Company or any Other Enterprise or on information or
records given or reports made to the Company or any Other Enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or any Other Enterprise. The
provisions of this Section 7(c) will not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be
deemed to have met the applicable standard of conduct set forth in this
Agreement.
(d) ACTIONS OF OTHERS. The knowledge and/or actions, or failure to
act, of any director, officer, agent or employee of the Company or any
Other Enterprise will not be imputed to the Indemnitee for purposes of
determining the right of indemnification under this Agreement.
8. RIGHTS OF THE INDEMNITEE.
(a) APPLICATION TO DISPUTES. This Section 8 applies in the event of
a Dispute. For purposes of this Section, a "Dispute" means any of the
following events: (i) a determination is made pursuant to Section 6 of
this Agreement that the Indemnitee is not entitled to indemnification under
this Agreement; (ii) advancement of Expenses is not timely made pursuant to
Section 5 of this Agreement; (iii) the determination of entitlement to
indemnification to be made pursuant to Section 6(b) of this Agreement has
not been made within 90 days after receipt by the Company of the request
for indemnification; or (iv) payment of indemnification is not made within
10 days after a determination has been made that the Indemnitee is entitled
to indemnification or such determination is deemed to have been made
pursuant to Section 6 of this Agreement.
(b) ADJUDICATION. In the event of a Dispute, the Indemnitee is
entitled to an adjudication in any court of competent jurisdiction of the
Indemnitee's entitlement to such indemnification or advancement of
Expenses. Alternatively, the Indemnitee, at the Indemnitee's option, may
seek an award in arbitration to be conducted by a single arbitrator
pursuant to the
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rules of the American Arbitration Association. The Indemnitee must
commence such proceeding seeking an adjudication or an award in arbitration
within 180 days following the date on which the Indemnitee first has the
right to commence such proceeding pursuant to this Section 8(b). The
Company will not oppose the Indemnitee's right to seek any such
adjudication or award in arbitration.
(c) DE NOVO REVIEW. In the event that a determination has been made
pursuant to Section 6 of this Agreement that the Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 8 will be conducted in all respects as a de novo
trial, or arbitration, on the merits, and the Indemnitee will not be
prejudiced by reason of that adverse determination. In any such proceeding
or arbitration, the Company has the burden of proving that the Indemnitee
is not entitled to indemnification or advancement of Expenses, as the case
may be.
(d) COMPANY BOUND. If a determination has been made or is deemed to
have been made pursuant to Section 6 of this Agreement that the Indemnitee
is entitled to indemnification, the Company will be bound by such
determination in any judicial proceeding or arbitration absent (i) a
misstatement by the Indemnitee of a material fact, or an omission of a
material fact necessary to make the Indemnitee's statement not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(e) PROCEDURES VALID. The Company is precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 8
that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and must stipulate in any such court or before any
such arbitrator that the Company is bound by all the provisions of this
Agreement.
(f) EXPENSES OF ADJUDICATION. In the event that the Indemnitee,
pursuant to this Section 8, seeks a judicial adjudication or an award in
arbitration to enforce the Indemnitee's rights under, or to recover damages
for breach of, this Agreement, the Indemnitee will be entitled to recover
from the Company, and will be indemnified by the Company against, any and
all expenses (of the types described in the definition of Expenses in
Section 1(g) of this Agreement) actually and reasonably incurred by the
Indemnitee in such adjudication or arbitration, but only if the Indemnitee
prevails therein. If it is determined in such adjudication or arbitration
that the Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the expenses incurred by
the Indemnitee in connection with such adjudication or arbitration will be
appropriately pro-rated.
9. NON-EXCLUSIVITY; INSURANCE; SUBROGATION; DUPLICATION OF PAYMENTS.
(a) NON-EXCLUSIVITY. The rights of the Indemnitee are not exclusive
of any rights to which the Indemnitee may be entitled under the Company's
Certificate of Incorporation or Bylaws, any agreement, any vote of
stockholders or Disinterested Directors, applicable law or otherwise both
as to action in the Indemnitee's Corporate Status and as to action in any
other capacity while holding such office. No amendment, alteration,
rescission or replacement of this Agreement or any provision hereof will be
effective as to the Indemnitee with respect to any action taken or omitted
by such the Indemnitee in the Indemnitee's Corporate Status prior to such
amendment, alteration, rescission or replacement.
(b) LIABILITY INSURANCE. To the extent the Company maintains an
insurance policy or policies for directors' and officers' liability, the
Indemnitee will be covered by such policy or
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policies, in accordance with its or their terms, to the maximum extent of
the coverage available for any Company director or officer.
(c) SUBROGATION. In the event of payment under this Agreement, the
Company will be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee against any person or organization,
and the Indemnitee will execute all papers and take all actions necessary
to secure such rights, including the execution of such documents necessary
to enable the Company effectively to bring suit to enforce such rights.
(d) NO DUPLICATION OF PAYMENTS. The Company will not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that the Indemnitee has otherwise actually
received payment under any insurance policy, the Certificate of
Incorporation or Bylaws or otherwise.
10. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVER. No supplement, modification or amendment
of this Agreement will be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement will
be deemed or will constitute a waiver of any other provisions hereof
(whether or not similar) nor will such waiver constitute a continuing
waiver.
(b) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company), spouses,
heirs and personal and legal representatives. The Company will require and
cause any such successor, by written agreement in form and substance
satisfactory to the Indemnitee, to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This
Agreement will continue in effect regardless of whether Indemnitee
continues to serve as a director or officer of the Company or of any Other
Enterprise.
(c) SEVERABILITY. The provisions of this Agreement will be severable
in the event that any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions will remain enforceable to the fullest extent
permitted by law.
(d) NOTICE. All notices, requests, demands and other communications
under this Agreement must be in writing and will be deemed to have been
duly given (i) if delivered by hand and receipted for by the party to whom
such notice or other communication was directed, on the date of delivery,
or (ii) if mailed by certified or registered mail or by express mail,
postage prepaid and properly addressed, on the third business day after the
date on which it is so mailed. Unless subsequently modified as provided
herein, notice to the Company will be directed to Xxxx Group, Inc., 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000 (Attn: Chief Executive
Officer), and notice to the Indemnitee will be directed to the address set
forth with the Indemnitee's signature below.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will for all purposes be deemed an original but
all of which together will constitute one
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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.
(f) GOVERNING LAW. This Agreement will be governed by and construed
and enforced in accordance with the law of the State of Delaware applicable
to contracts made to be performed in such state without giving effect to
the principles of conflicts of laws.
The parties have executed this Agreement on the day and year first above
written.
XXXX GROUP, INC.
By:
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Xxxxxxx X. Dirk
Its: Chief Executive Officer
INDEMNITEE
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(Signature)
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(Name)
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(Address)
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