1
31
EXHIBIT 10.23a
INDEMNIFICATION AGREEMENT
Agreement dated as of __________ between Xxxx Technologies, Inc. and __________.
The parties agree as follows:
1. THE PARTIES AND THE CONSIDERATION
(a) The parties to this agreement are Xxxx Technologies, Inc. and
__________________________.
(b) Xxxx Technologies, Inc. is a Delaware corporation. It has an office at
000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000. It is referred
to below as the "Corporation".
(c) ____________________________ is an individual person. He is referred to
below as "Indemnitee".
(d) At the request of the Corporation, indemnitee currently services as a
director and/or officer of the Corporation and may, therefore, be
subjected to actions, suits or proceedings by reason of such service.
(e) As an inducement to indemnitee to continue to serve as a director and/or
officer, the Corporation has agreed to indemnify indemnitee against
expenses and costs incurred by indemnitee in connection with any actions,
suits or proceedings referred to in Section 1(d), to the fullest extent
permitted by law and, to the extent, if any, that such insurance is
maintained by the Corporation for any of its directors, to maintain
coverage of indemnitee under the Corporation's directors' and officers'
liability insurance policies.
(f) This agreement shall cover any act or omission by indemnitee which (i)
occurs or is alleged to have occurred by reason of his being or having
been a director, (ii) occurs or is alleged to have occurred before,
during or after the time when the indemnitee serviced as a director, and
(iii) gives rise to, or is the direct or indirect subject of a claim in
any threatened, pending or completed action, suit or proceedings, whether
civil, criminal, administrative or investigative, at any time or times
whether during or after his service as a director.
2. INDEMNITY
(a)(i) The Corporation shall indemnify, to the fullest extent permitted by
the Corporation's certificate of incorporation and by law, and
regardless of any by-law provision to the contrary, indemnitee, from
and against any expenses (including attorneys' fees), judgments,
fines, taxes, penalties and amounts paid in settlement actually and
reasonably incurred by indemnitee in connection with any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that
he is or was a director, officer, employee or agent 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 or other enterprise and whether or not such action is
by or in the right of the Corporation or such other corporation,
partnership, joint venture, trust or other enterprise with respect to
which the indemnitee serves or has served.
(ii) For purposes of this agreement, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of
the Corporation" shall include 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 or its participants or
beneficiaries.
2
32
(b) Notwithstanding anything to the contrary in Section 2(a), the
Corporation shall indemnify indemnitee in any action, suit or
proceeding initiated by indemnitee only if indemnitee acted with the
authorization of the Corporation in initiating that action, suit or
proceeding. However, an arbitration proceeding brought under Section
10 shall not be subject to this Section 2(b).
(c) Indemnification under this agreement shall be made by agreement
between the board of directors of the corporation and indemnitee. If
the board of directors and the indemnitee cannot agree, any
disagreement they may have shall be resolved by a decision of the
arbitrators in an arbitration proceeding pursuant to Section 10.
(d) Notwithstanding anything in this agreement to the contrary, if a claim
for indemnification against liabilities arising under the federal
Securities Act of 1933 (other than the payment by the Corporation of
expenses incurred or by indemnitee in the successful defense of any
action, suit or proceeding) is asserted by indemnitee in connection
with securities being registered or registered thereunder, the
Corporation will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the federal Securities Act
of 1933 and both it and indemnitee will be governed by the final
adjudication of such issue.
3. PARTIAL INDEMNITY; SUCCESSFUL DEFENSE; BURDEN AND PROOF;
SETTLEMENT; NO PRESUMPTION
(a) If indemnitee is entitled under any provisions of this agreement to
indemnification by the Corporation for some or a portion of the expenses,
judgments, fines, taxes, penalties and amounts paid in settlement but not
for the total amount thereof, the Corporation shall indemnify indemnitee
for the portion thereof to which indemnitee is entitled.
(b) Notwithstanding any other provision of this agreement, to the extent that
indemnitee has been successful on the merits or otherwise in defense of
any action, suit or proceeding or in defense of any issue or matter
therein, including, without limitation, dismissal without prejudice,
indemnitee shall be indemnified against any and all expenses, judgments,
fines, taxes, penalties and amounts paid in settlement with respect to
such action, suit or proceeding.
(c) Indemnitee shall be presumed to be entitled to indemnification for any
act or omission covered in Section 1. The burden of proof of establishing
that indemnitee is not entitled to indemnification because of the failure
to fulfill some requirement of Delaware law, the Corporation's
certificate of incorporation or by-laws or this agreement shall be on
the Corporation.
(d) The Corporation shall not be liable to indemnify indemnitee under this
agreement for any amounts paid in settlement of any action or claim
effected without the Corporation's prior written consent. The
Corporation shall not settle any action or claim in any manner which
would impose any penalty or limitation on indemnitee without indemnitee's
prior written consent. Neither the Corporation not indemnitee shall
unreasonably withhold their consent to any proposed settlement.
(e) For purposes of this agreement, the termination of any action, suit or
proceeding, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contender, or its
equivalent, shall not create a presumption that indemnitee did not meet
any particular standard of conduct or have any particular belief or that
a court has determined that indemnification is not permitted by
applicable law or this agreement.
4. NOTICE BY INDEMNITEE
Indemnitee shall notify the Corporation in writing of any matter with
respect to which indemnitee intends to seek indemnification hereunder as
soon as reasonably practicable following the receipt by indemnitee of
written threat thereof; provided, however, that failure to so notify the
Corporation shall not constitute a waiver by indemnitee of his rights
hereunder.
3
33
5. ADVANCEMENT OF EXPENSES
In the event of any action, suit or proceeding against indemnitee which
may give rise to a right of indemnification from the Corporation pursuant
to this agreement, following written request to the Corporation by
indemnitee, the Corporation shall advance to indemnitee amounts to cover
expenses incurred by indemnitee in defending any such action, suit or
proceeding in advance of the final disposition thereof upon receipt of
(i) an undertaking by or on behalf of indemnitee to repay the amount
advanced unless it shall ultimately be determined in accordance with this
agreement that he is entitled to be indemnified by the Corporation, and
(ii) reasonably satisfactory evidence as to the amount of such expenses.
Indemnitee's written certification together with a copy of an expense
statement paid or to be paid by indemnitee shall constitute satisfactory
evidence as to the amount of expenses.
6. NON-EXCLUSIVITY OF RIGHT OF INDEMNIFICATION
The indemnification rights granted to indemnitee under this agreement
shall not be deemed exclusive of, or in limitation of, any other rights
to which indemnitee may be entitled under Delaware law, the Corporation's
certificate of incorporation or by-laws, any other agreement, any vote of
shareholders or directors or otherwise. To the extent Delaware law, the
Corporation's certificate of incorporation or by-laws or other
applicable law, as in effect on the date hereof or at any time in the
future, permit greater or less limited or conditional indemnification or
advance payment of expenses than is provided for in this agreement,
indemnitee shall enjoy such greater or less limited or conditional
benefits so afforded, and this agreement shall be deemed amended without
any further action by the Corporation or indemnitee to grant such greater
benefits. Indemnitee shall be entitled, in the sole discretion of
indemnitee, to elect to have Indemnitee's rights hereunder interpreted on
the basis of applicable law in effect at the time of execution of this
agreement, at the time of the occurrence of the indemnifiable event
giving rise to a claim or at the time indemnification is sought.
7. CONTRIBUTION
If the indemnification provided for in this agreement is unavailable to
indemnitee for any reason whatsoever, the Corporation, in lieu of
indemnifying indemnitee, shall contribute to the amount incurred by
indemnitee, whether for expenses, judgments, fines, taxes, penalties and
amounts paid in settlement in connection with any action, suit or
proceeding, in such proportion as is deemed fair and reasonable in light
of all of the circumstances of such action by board action, arbitration
or by the court before which such action was brought in order to reflect
(a) the relative benefits received by the Corporation and indemnitee as a
result of the event and/or transaction giving cause to such action;
and/or (b) the relative fault of the Corporation (and its other
directors, officers, employees and agents) and indemnitee in connection
with such event and/or transaction. Indemnitee's right to contribution
under this Section 7 shall be determined in accordance with, pursuant to
and in the same manner as, the provisions in Sections 2 and 3 relating to
indemnitee's right to indemnification under this agreement.
8. LIABILITY INSURANCE
To the extent the Corporation maintains at any time an insurance policy
or policies providing directors' and officers' liability insurance,
indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available
for any other director or officer of the Corporation under such insurance
policy unless the carrier refuses to extend such coverage or the rates
therefore are more than 15% higher than for covering any other director
or officer covered by the policy. The purchase and maintenance of such
insurance shall not in any way limit or affect the rights and obligations
of the parties hereto, and the execution and delivery of this agreement
shall not in any way be construed to limit or affect the rights and
obligations of the Corporation and/or of the other parties under any such
insurance policy.
4
34
9. TERMINATION OF AGREEMENT AND SURVIVAL OF RIGHT OF INDEMNIFICATION
(a) Subject to Section 9(b), this agreement shall terminate when
indemnitee's term of office as a director and/or officer ends.
(b) The rights granted to indemnitee hereunder shall continue after
termination as provided in Section 1 and shall inure to he benefit of
indemnitee, his personal representatives, heirs, executors,
administrators and beneficiaries, and this agreement shall be binding
upon the Corporation and its successors and assigns.
10. ARBITRATION OF ALL DISPUTES CONCERNING ENTITLEMENT
Any controversy or claim arising out of or relating to indemnitee's
entitlement to indemnification under this agreement shall be settled by
arbitration in the City of White Plains, New York or New York, New York.
The arbitration shall be conducted by and in accordance with the rules of
the American Arbitration Association. The location of the arbitration
shall be selected by the party demanding arbitration. The arbitration
shall be resolved by a single arbitrator unless one of the parties
specifies that it prefers three arbitrators, in which case the
arbitration shall be resolved by three arbitrators. Judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. Interest on any judgment shall be assessed at a
rate or rates the arbitrators consider just under the circumstances. If
it is necessary or desirable for indemnitee to retain legal counsel or
incur other costs and expenses in connection with enforcement of his
rights under this agreement, the Corporation shall pay his reasonable
attorneys' fees and costs and expenses in connection with enforcement of
his rights (including the enforcement of any arbitration award in court),
regardless of the final outcome, unless the arbitrators determine that
under the circumstances recovery by indemnitee of all or a part of any
such fees and costs and expenses would be unjust.
11. INTERPRETATION
(a) Captions and headings used in this agreement are for reference only.
(b) A male or female person may be referred to in this agreement by a
neuter pronoun. A person other than an individual person may be
referred to in this agreement by a personal pronoun. The singular
includes the plural and the plural includes the singular.
(c) A provision of this agreement which requires a party to perform an
action shall be construed so as to require the party to perform the
action or to cause the action to be performed. A provision of this
agreement which prohibits a party from performing an action shall be
construed so as to prohibit the party from performing the action or
permitting others to perform the action on the party's behalf.
(d) "Including" means "including but not limited to". "Any" means "any
and all". "May" means "may but shall not be obligated to".
(e) This agreement may not be changed or cancelled orally.
12. NOTICES
All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand or when mailed by certified or
registered mail, return receipt requested, with postage prepaid:
(a) If to indemnitee, to:
5
35
(b) If to the Corporation, to:
Xxxx Technologies, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000
Attention:
or to such person or address as indemnitee or the Corporation shall
furnish to the other party in writing pursuant to the above.
13. GOVERNING LAW
(a) Except as provided for in Section 13(b), this agreement shall be
governed by the laws of the State of Delaware, without application of
the principles of conflicts of laws thereof.
(b) Any arbitration under this agreement shall be governed by the laws of
the State of New York.
14. SEVERABILITY
If any provision of this agreement is determined to be invalid, illegal
or unenforceable, this invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability of any other
provision of this agreement, and there shall be substituted for the
provision at issue a valid and enforceable provision as similar as
possible to the provision at issue.
To signify his agreement to the foregoing, Xxxxxxx X. Xxxxxxx has
executed this agreement.
To signify its agreement to the foregoing, Xxxx Technologies, Inc. has
caused this agreement to be executed and attested to by its duly
authorized officers.
_________________________________
Xxxx Technologies, Inc.
By:______________________________
