FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of , 2005, is made by and
between Xxxxx River Group, Inc., a Delaware corporation (the "Corporation") and
(the "Indemnitee").
RECITALS
A. The Corporation recognizes that competent and experienced persons
are increasingly reluctant to serve or to continue to serve as directors or
officers of corporations unless they are protected by comprehensive liability
insurance or indemnification, or both, due to increased exposure to litigation
costs and risks resulting from their service to such corporations, and due to
the fact that the exposure frequently bears no reasonable relationship to the
compensation of such directors and officers.
B. The Corporation, after reasonable investigation, has determined that
the liability insurance coverage presently available to the Corporation may in
certain circumstances not cover all possible exposure for which Indemnitee
should be protected. The Corporation believes that the interests of the
Corporation and its stockholders would best be served by a combination of such
insurance and the indemnification by the Corporation of the directors and
officers of the Corporation.
C. The Corporation's Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation") and Amended and Restated By-Laws (the
"By-Laws") require the Corporation to indemnify its directors and officers to
the fullest extent permitted by the Delaware General Corporation Law (the
"DGCL"). The Certificate of Incorporation expressly provides that the
indemnification provisions set forth therein are not exclusive, and contemplates
that contracts may be entered into between the Corporation and its directors and
officers with respect to indemnification.
D. Section 145 of the DGCL ("Section 145"), under which the Corporation
is organized, empowers the Corporation to indemnify its officers, directors,
employees and agents by agreement and to indemnify persons who serve, at the
request of the Corporation, as the directors, officers, employees or agents of
other corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not exclusive.
E. The Board of Directors has determined that contractual
indemnification as set forth herein is not only reasonable and prudent but also
promotes the best interests of the Corporation and its stockholders.
F. The Corporation desires and has requested Indemnitee to serve or
continue to serve as a director or officer of the Corporation free from undue
concern for unwarranted claims for damages arising out of or related to such
services to the Corporation, and the Indemnitee is willing to serve, continue to
serve or to provide additional service for or on behalf of the Corporation on
the condition that he is furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1. Generally.
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To the fullest extent permitted by the laws of the State of Delaware:
(a) The Corporation shall indemnify Indemnitee if Indemnitee was or 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, by reason of the fact that Indemnitee is or was or has agreed to
serve at the request of the Corporation as a director, officer, employee or
agent of the Corporation, or while serving as a director or officer of the
Corporation, is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent (which, for purposes
hereof, shall include a trustee, partner or manager or similar capacity) of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity.
(b) The indemnification provided by this Section 1 shall be from and
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection with such action, suit or proceeding and any appeal
therefrom, but shall only be provided if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action, suit or
proceeding, had no reasonable cause to believe Indemnitee's conduct was
unlawful.
(c) Notwithstanding the foregoing provisions of this Section 1, in the
case of any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Corporation,
or while serving as a director or officer of the Corporation, is or was serving
or has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation unless, and only to the extent that,
the Delaware Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnity for such expenses which the Delaware Court
of Chancery or such other court shall deem proper.
(d) The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that
Indemnitee's conduct was unlawful.
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Section 2. Successful Defense; Partial Indemnification. To the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 hereof or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred in connection
therewith. For purposes of this Agreement and without limiting the foregoing, if
any action, suit or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition being
adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an
adjudication that Indemnitee did not act in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation, and (v) with respect to any criminal proceeding, an
adjudication that Indemnitee had reasonable cause to believe Indemnitee's
conduct was unlawful, Indemnitee shall be considered for the purposes hereof to
have been wholly successful with respect thereto.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with any action, suit, proceeding or investigation, or in defense of
any claim, issue or matter therein, and any appeal therefrom but not, however,
for the total amount thereof, the Corporation shall nevertheless indemnify
Indemnitee for the portion of such expenses (including attorneys' fees),
judgments, fines or amounts paid in settlement to which Indemnitee is entitled.
Section 3. Determination That Indemnification Is Proper. Any
indemnification hereunder shall (unless otherwise ordered by a court) be made by
the Corporation unless a determination is made that indemnification of such
person is not proper in the circumstances because he or she has not met the
applicable standard of conduct set forth in Section 1(b) hereof. Any such
determination shall be made (i) by a majority vote of the directors who are not
parties to the action, suit or proceeding in question ("disinterested
directors"), even if less than a quorum, (ii) by a majority vote of a committee
of disinterested directors designated by majority vote of disinterested
directors, even if less than a quorum, (iii) by a majority vote of a quorum of
the outstanding shares of stock of all classes entitled to vote on the matter,
voting as a single class, which quorum shall consist of stockholders who are not
at that time parties to the action, suit or proceeding in question, (iv) by
independent legal counsel, or (v) by a court of competent jurisdiction.
Section 4. Advance Payment of Expenses; Notification and Defense of Claim.
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(a) Expenses (including attorneys' fees) incurred by Indemnitee in
defending a threatened or pending civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding within
twenty (20) days after receipt by the Corporation of (i) a statement or
statements from Indemnitee requesting such advance or advances from time to
time, and (ii) an undertaking by or on behalf of Indemnitee to repay such amount
or amounts, only if, and to the extent that, it shall ultimately be determined
that Indemnitee is not entitled to be indemnified by the Corporation as
authorized by this Agreement or otherwise. Such undertaking shall be accepted
without reference to the financial ability of Indemnitee to make such repayment.
Advances shall be unsecured and interest-free.
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(b) Promptly after receipt by Indemnitee of notice of the commencement
of any action, suit or proceeding, Indemnitee shall, if a claim thereof is to be
made against the Corporation hereunder, notify the Corporation of the
commencement thereof. The failure to promptly notify the Corporation of the
commencement of the action, suit or proceeding, or Indemnitee's request for
indemnification, will not relieve the Corporation from any liability that it may
have to Indemnitee hereunder, except to the extent the Corporation is prejudiced
in its defense of such action, suit or proceeding as a result of such failure.
(c) In the event the Corporation shall be obligated to pay the expenses
of Indemnitee with respect to an action, suit or proceeding, as provided in this
Agreement, the Corporation, if appropriate, shall be entitled to assume the
defense of such action, suit or proceeding, with counsel reasonably acceptable
to Indemnitee, upon the delivery to Indemnitee of written notice of its election
to do so. After delivery of such notice, approval of such counsel by Indemnitee
and the retention of such counsel by the Corporation, the Corporation will not
be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same action, suit or
proceeding, provided that (1) Indemnitee shall have the right to employ
Indemnitee's own counsel in such action, suit or proceeding at Indemnitee's
expense and (2) if (i) the employment of counsel by Indemnitee has been
previously authorized in writing by the Corporation, (ii) counsel to the
Corporation or Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position, or reasonably believes that a conflict is
likely to arise, on any significant issue between the Corporation and Indemnitee
in the conduct of any such defense or (iii) the Corporation shall not, in fact,
have employed counsel to assume the defense of such action, suit or proceeding,
then the fees and expenses of Indemnitee's counsel shall be at the expense of
the Corporation, except as otherwise expressly provided by this Agreement. The
Corporation shall not be entitled, without the consent of Indemnitee, to assume
the defense of any claim brought by or in the right of the Corporation or as to
which counsel for the Corporation shall have reasonably made the conclusion
provided for in clause (ii) above.
(d) Notwithstanding any other provision of this Agreement to the
contrary, to the extent that Indemnitee is, by reason of Indemnitee's corporate
status with respect to the Corporation or any corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which Indemnitee is or
was serving or has agreed to serve at the request of the Corporation, a witness
or otherwise participates in any action, suit or proceeding at a time when
Indemnitee is not a party in the action, suit or proceeding, the Corporation
shall indemnify Indemnitee against all expenses (including attorneys' fees)
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith.
Section 5. Procedure for Indemnification.
(a) To obtain indemnification, Indemnitee shall promptly submit to the
Corporation a written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The Corporation shall, promptly upon receipt of such a request
for indemnification, advise the Board of Directors in writing that Indemnitee
has requested indemnification.
(b) The Corporation's determination whether to grant Indemnitee's
indemnification request shall be made promptly, and in any event within 60 days
following receipt of
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a request for indemnification pursuant to Section 5(a). The right to
indemnification as granted by Section 1 of this Agreement shall be enforceable
by Indemnitee in any court of competent jurisdiction if the Corporation denies
such request, in whole or in part, or fails to respond within such 60-day
period. It shall be a defense to any such action (other than an action brought
to enforce a claim for the advance of costs, charges and expenses under Section
4 hereof where the required undertaking, if any, has been received by the
Corporation) that Indemnitee has not met the standard of conduct set forth in
Section 1 hereof, but the burden of proving such defense by clear and convincing
evidence shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors or one of its committees, its independent
legal counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct set
forth in Section 1 hereof, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors or one of its
committees, its independent legal counsel, and its stockholders) that Indemnitee
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has or has not met the applicable
standard of conduct. The Indemnitee's expenses (including attorneys' fees)
incurred in connection with successfully establishing Indemnitee's right to
indemnification, in whole or in part, in any such proceeding or otherwise shall
also be indemnified by the Corporation.
(c) The Indemnitee shall be presumed to be entitled to indemnification
under this Agreement upon submission of a request for indemnification pursuant
to this Section 5, and the Corporation shall have the burden of proof in
overcoming that presumption in reaching a determination contrary to that
presumption. Such presumption shall be used as a basis for a determination of
entitlement to indemnification unless the Corporation overcomes such presumption
by clear and convincing evidence.
Section 6. Insurance and Subrogation.
(a) The Corporation may purchase and maintain insurance on behalf of
Indemnitee who is or was or has agreed to serve at the request of the
Corporation as a director or officer of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against, and incurred by,
Indemnitee or on Indemnitee's behalf in any such capacity, or arising out of
Indemnitee's status as such, whether or not the Corporation would have the power
to indemnify Indemnitee against such liability under the provisions of this
Agreement. If the Corporation has such insurance in effect at the time the
Corporation receives from Indemnitee any notice of the commencement of a
proceeding, the Corporation shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the
policy. The Corporation shall thereafter take all necessary or desirable action
to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable
as a result of such proceeding in accordance with the terms of such policy.
(b) In the event of any payment by the Corporation under this
Agreement, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee with respect to any insurance
policy, who shall execute all papers required and take all action necessary to
secure such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights in accordance with
the
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terms of such insurance policy. The Corporation shall pay or reimburse all
expenses actually and reasonably incurred by Indemnitee in connection with such
subrogation.
(c) The Corporation shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) if and to the extent that Indemnitee has otherwise actually
received such payment under this Agreement or any insurance policy, contract,
agreement or otherwise.
Section 7. Certain Definitions. For purposes of this Agreement, the
following definitions shall apply:
(a) The term "action, suit or proceeding" shall be broadly construed
and shall include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and the giving of
testimony in, any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative.
(b) The term "by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Corporation, or while serving as a
director or officer of the Corporation, is or was serving or has agreed to serve
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise" shall be broadly construed and shall include, without
limitation, any actual or alleged act or omission to act.
(c) The term "expenses" shall be broadly and reasonably construed and
shall include, without limitation, all direct and indirect costs of any type or
nature whatsoever (including, without limitation, all attorneys' fees and
related disbursements, appeal bonds, other out-of-pocket costs and reasonable
compensation for time spent by Indemnitee for which Indemnitee is not otherwise
compensated by the Corporation or any third party, provided that the rate of
compensation and estimated time involved is approved by the Board, which
approval shall not be unreasonably withheld), actually and reasonably incurred
by Indemnitee in connection with either the investigation, defense or appeal of
a proceeding or establishing or enforcing a right to indemnification under this
Agreement, Section 145 of the General Corporation Law of the State of Delaware
or otherwise.
(d) The term "judgments, fines and amounts paid in settlement" shall be
broadly construed and shall include, without limitation, all direct and indirect
payments of any type or nature whatsoever (including, without limitation, all
penalties and amounts required to be forfeited or reimbursed to the Corporation,
as well as any penalties or excise taxes assessed on a person with respect to an
employee benefit plan).
(e) The term "Corporation" shall include, without limitation and in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other
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enterprise, shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate
existence had continued.
(f) The term "other enterprises" shall include, without limitation,
employee benefit plans.
(g) The term "serving at the request of the Corporation" shall include,
without limitation, any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.
(h) A person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Agreement.
Section 8. Limitation on Indemnification. Notwithstanding any other
provision herein to the contrary, the Corporation shall not be obligated
pursuant to this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to an action, suit or proceeding (or part thereof)
initiated by Indemnitee, except with respect to an action, suit or proceeding
brought to establish or enforce a right to indemnification (which shall be
governed by the provisions of Section 8(b) of this Agreement), unless such
action, suit or proceeding (or part thereof) was authorized or consented to by
the Board of Directors of the Corporation.
(b) Action for Indemnification. To indemnify Indemnitee for any
expenses incurred by Indemnitee with respect to any action, suit or proceeding
instituted by Indemnitee to enforce or interpret this Agreement, unless
Indemnitee is successful in establishing Indemnitee's right to indemnification
in such action, suit or proceeding, in whole or in part, or unless and to the
extent that the court in such action, suit or proceeding shall determine that,
despite Indemnitee's failure to establish their right to indemnification,
Indemnitee is entitled to indemnity for such expenses; provided, however, that
nothing in this Section 8(b) is intended to limit the Corporation's obligation
with respect to the advancement of expenses to Indemnitee in connection with any
such action, suit or proceeding instituted by Indemnitee to enforce or interpret
this Agreement, as provided in Section 4 hereof.
(c) Section 16 Violations. To indemnify Indemnitee on account of any
proceeding with respect to which final judgment is rendered against Indemnitee
for payment or an accounting of profits arising from the purchase or sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
(d) Non-compete and Non-disclosure. To indemnify Indemnitee in
connection with proceedings or claims involving the enforcement of non-compete
and/or non-disclosure agreements or the non-compete and/or non-disclosure
provisions of employment, consulting or similar agreements the Indemnitee may be
a party to with the Corporation, or any subsidiary of the Corporation or any
other applicable foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, if any.
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Section 9. Certain Settlement Provisions. The Corporation shall have no
obligation to indemnify Indemnitee under this Agreement for amounts paid in
settlement of any action, suit or proceeding without the Corporation's prior
written consent, which shall not be unreasonably withheld. The Corporation shall
not settle any action, suit or proceeding in any manner that would impose any
fine or other obligation on Indemnitee without Indemnitee's prior written
consent, which shall not be unreasonably withheld.
Section 10. Savings Clause. If any provision or provisions of this
Agreement shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify Indemnitee as to
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action by
or in the right of the Corporation, to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated and to
the full extent permitted by applicable law.
Section 11. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for herein
is held by a court of competent jurisdiction to be unavailable to Indemnitee in
whole or in part, it is agreed that, in such event, the Corporation shall, to
the fullest extent permitted by law, contribute to the payment of Indemnitee's
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, in an amount that is
just and equitable in the circumstances, taking into account, among other
things, contributions by other directors and officers of the Corporation or
others pursuant to indemnification agreements or otherwise; provided, that,
without limiting the generality of the foregoing, such contribution shall not be
required where such holding by the court is due to (i) the failure of Indemnitee
to meet the standard of conduct set forth in Section 1 hereof, or (ii) any
limitation on indemnification set forth in Section 6(c), 8 or 9 hereof.
Section 12. Form and Delivery of Communications. Any notice, request or
other communication required or permitted to be given to the parties under this
Agreement shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified or
registered mail, return receipt requested, postage prepaid, to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice):
If to the Corporation:
Xxxxx River Group, Inc.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: J. Xxxx Xxxxx
Facsimile: (000) 000-0000
If to Indemnitee:
[------------]
c/o Xxxxx River Group, Inc.
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0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Section 13. Subsequent Legislation. If the General Corporation Law of
Delaware is amended after adoption of this Agreement to expand further the
indemnification permitted to directors or officers, then the Corporation shall
indemnify Indemnitee to the fullest extent permitted by the General Corporation
Law of Delaware, as so amended.
Section 14. Nonexclusivity. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which Indemnitee may have under any provision of
law, the Corporation's Certificate of Incorporation or By-Laws, in any court in
which a proceeding is brought, pursuant to the vote of the Corporation's
stockholders or disinterested directors, or pursuant to other agreements or
otherwise. Indemnitee's rights hereunder shall continue after Indemnitee has
ceased acting as an agent of the Corporation and shall inure to the benefit of
the heirs, executors and administrators of Indemnitee. However, no amendment or
alteration of the Corporation's Certificate of Incorporation or By-Laws or any
other agreement shall adversely affect the rights provided to Indemnitee under
this Agreement
Section 15. Enforcement. The Corporation shall be precluded from
asserting in any judicial proceeding that the procedures and presumptions of
this Agreement are not valid, binding and enforceable. The Corporation agrees
that its execution of this Agreement shall constitute a stipulation by which it
shall be irrevocably bound in any court of competent jurisdiction in which a
proceeding by Indemnitee for enforcement of his rights hereunder shall have been
commenced, continued or appealed, that its obligations set forth in this
Agreement are unique and special, and that failure of the Corporation to comply
with the provisions of this Agreement will cause irreparable and irremediable
injury to Indemnitee, for which a remedy at law will be inadequate. As a result,
in addition to any other right or remedy Indemnitee may have at law or in equity
with respect to breach of this Agreement, Indemnitee shall be entitled to
injunctive or mandatory relief directing specific performance by the Corporation
of its obligations under this Agreement.
Section 16. Interpretation of Agreement. It is understood that the
parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to Indemnitee to the fullest extent now or hereafter
permitted by law.
Section 17. Entire Agreement. This Agreement and the documents
expressly referred to herein constitute the entire agreement between the parties
hereto with respect to the matters covered hereby, and any other prior or
contemporaneous oral or written understandings or agreements with respect to the
matters covered hereby are expressly superceded by this Agreement.
Section 18. 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 provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 19. Successor and Assigns. All of the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and
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their respective successors, assigns, heirs, executors, administrators and legal
representatives. The Corporation shall require and cause any direct or indirect
successor (whether by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation, by written
agreement in form and substance reasonably satisfactory to Indemnitee, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform if no such succession
had taken place.
Section 20. Service of Process and Venue. For purposes of any claims or
proceedings to enforce this agreement, the Corporation consents to the
jurisdiction and venue of any federal or state court of competent jurisdiction
in the states of Delaware and California, and waives and agrees not to raise any
defense that any such court is an inconvenient forum or any similar claim.
Section 21. Governing Law. This Agreement shall be governed exclusively
by and construed according to the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware. If a court of competent jurisdiction shall make a final
determination that the provisions of the law of any state other than Delaware
govern indemnification by the Corporation of its officers and directors, then
the indemnification provided under this Agreement shall in all instances be
enforceable to the fullest extent permitted under such law, notwithstanding any
provision of this Agreement to the contrary.
Section 22. Employment Rights. Nothing in this Agreement is intended to
create in Indemnitee any right to employment or continued employment.
Section 23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument, notwithstanding that
both parties are not signatories to the original or same counterpart.
Section 24. Headings. The section and subsection headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
to be effective as of the date first above written.
XXXXX RIVER GROUP, INC.
By _______________________________________
Name:
Title:
INDEMNITEE:
By _______________________________________
Name:
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