Exhibit 10.32
INDEMNIFCATION AGREEMENT
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THIS AGREEMENT is made and entered into as of ____________ by and between
XxxxxXxxxxx.xxx Corporation, a Delaware corporation (the `Company"), and
_______________("Indemnitee").
WITNESSETH:
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WHEREAS, Indemnitee is a director and/or an executive officer of the
Company and provides unique and valuable services in such capacity or capacities
for the Company;
WHEREAS, the Company's Certificate of Incorporation ("Certificate") and
Bylaws (the "Bylaws") provide for the indemnification of the directors and
executive officers by the Company to the maximum extent authorized by the
Delaware General Corporation Law, as amended (the "Act");
WHEREAS, the Certificate, the Bylaws and the Act, by their nonexclusive
nature, permit agreements between the Company and Its directors and executive
officers with respect to indemnification of such directors and executive
officers;
WHEREAS, as a result of recent developments affecting the terms, scope, and
availability of directors' and officers' 1iabiliy insurance, there exists
general uncertainty as to the extent of protection which may be afforded the
Company's directors and executive officers by such insurance, if any such
Insurance is obtained; and
WHEREAS, in order to induce Indemnitee to serve or continue to serve as a
director and/or executive officer of the Company, as the case may be, the
Company has determined and agreed to enter into this Agreement with Indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's service or continued
service as a director and/or executive officer after the date hereof the parties
hereto agree as follows:
1. Indemnification. The Company hereby agrees to hold harmless and
indemnify Indemnitee to the fullest extent permitted or required by the
provisions of the Act as it is presently constituted and as It may be amended
from time to time; provided, however, that in the case of any amendment to the
Act, the Company's obligations to hold harmless and indemnify Indemnitee shall
be changed only to the extent that such
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amendment to the Act permits or requires the Company to provide broader
indemnification rights than prior to such amendment.
2. Additional Indemnity. Subject only to the exclusions set forth in
Section 3 hereof, the Company hereby further agrees to hold harmless and
indemnify Indemnitee:
(a) Against any and all expenses (including attorneys' fees), costs,
judgments, fines, and amounts paid by Indemnitee in connection with the defense
or settlement of any threatened pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (including
an action by or in the right of the Company) to which the Indemnitee is, was, or
at any time becomes a party, witness or deponent or is threatened to be made a
party, witness or deponent by reason of the fact that Indemnitee is, was, or at
any time becomes a director, officer, Executive, or agent of the Company, or is
or was serving or at any time serves at the request of the Company as a
director, officer, Executive, or agent of another corporation, partnership,
limited liability company, joint venture, trusts or other enterprise; and
(b) Otherwise to the fullest extent as may be provided to Indemnitee
by the Company under the non-exclusivity provisions of the Act
3. Limitations on Additional Indemnity. No indemnity pursuant to Section
2 hereof shall be paid by the Company:
(a) If a judgment or other final adjudication establishes that
lndemnitee's actions, or omissions to act, were material to the cause of the
action so adjudicated and constitute: (i) a violation of the criminal law,
unless Indemnitee had reasonable cause to believe his conduct was lawful or bad
no reasonable cause to believe his conduct was unlawful; (ii) a transaction from
which Indemnitee derived an improper personal benefit; (iii) in the case of
Indemnitee being a director, a circumstance under which the liability provisions
of the Act are applicable; or (iv) willful misconduct or a conscious disregard
for the best interests of the Company in a proceeding by or in the right of the
Company or in a proceeding by or in the right of a shareholder & of the Company;
or
(b) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not Lawful.
4. Contribution. If the indemnification provided in Section 1 or 2 hereof
Is unavailable and may not be paid to lndemnitee for any reason other than those
set forth In paragraph (a) of Section 3 hereof, then in respect of any
threatened, pending, or completed action, suit, or proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such
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action, suit, or proceeding), the Company shall contribute to the amount of
expenses (including attorneys' fees). judgments, fines, and amounts paid or
payable by Indemnitee in such proportion as Is appropriate to reflect (a) the
relative benefits received by the Company on the one hand and Indemnitee on the
other hand from the transaction from which such action, suit, or proceeding
arose, and (b) the relative fault of the Company on the one hand and of
Indemnitee on the other hand in connection with the events which resulted in
such expenses, judgments, fines, or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of the Indemnitee's on the other hand shall be determined by reference
to, among other things, the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent the circumstances resulting
in such expenses, judgments, fines, or settlement amounts.
5. Continuation of Obligations. All agreements and obligations of the
Company contained herein shall continue during the period Indemnitee is a
director, officer, Executive, or agent of the Company (or Is or was serving at
the request of the Company as a director, officer, Executive, or agent of
another corporation, partnership, limited liability company, joint venture,
trust, or other enterprise) and shall continue thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, or investigative, by
reason of the fact that Indemnitee was a director or executive officer of the
Company or serving in any other capacity referred to herein and shall inure to
the benefit of the heirs, executors, and administrators of Indemnitee.
6. Notification and Defense of Claim. Promptly after receipt by lndemnitee
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 of the commencement thereof. The failure of
Indemnitee to notify the Company shall have no effect on the obligations of the
Company hereunder. With respect to any such action, suit, or proceeding:
(a) The Company will be entitled to participate therein at its own
expense.
(b) Except as otherwise provided below, to the extent that it may wish,
the Company shall be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to assume the defense thereof, the Company will not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof except as
otherwise provided below. Indemnitee shall have
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the right to employ his 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 such counsel of Indemnitee 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.
(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 the Company's written consent. The Company shall not settle any action
or claim in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent. Neither the Company nor
Indemnitee will unreasonably withhold its, his consent to any proposed
settlement.
7. Advancement and Repayment of Expenses.
(a) In the event that Indemnitee employs his own counsel pursuant to
Section 6(b)(i), (ii), or (iii) above, the Company shall advance to Indemnitee,
prior to any final disposition of any threatened or pending action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, any and
all expenses (including legal fees and expenses) incurred in investigating or
defending any such action, suit, or proceeding within ten (10) days after
receiving copies of invoices presented to Indemnitee for such expenses.
(b) Indemnitee agrees and undertakes that Indemnitee will reimburse
the Company for all expenses paid by the Company to Indemnitee pursuant to
Section 7(a) hereof in the event and only to the extent that it shall be
ultimately determined by a court of competent jurisdiction that Indemnitee is
not entitled, under the provisions of the Act, the Bylaws, the Certificate, this
Agreement, or otherwise to be indemnified by the Company for such expenses.
8. Enforcement.
(a) The Company expressly confirms and agrees that it has entered
into this
Agreement and assumed the obligations imposed on the Company hereby in order to
Induce
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Indemnitee to serve or to continue to serve as a director and/or executive
officer of the Company, and acknowledges that Indemnitee is relying upon this
Agreement in serving or continuing to serve in such capacity.
(b) In the event Indemnitee is required to bring any action to enforce
rights or to collect monies due under this Agreement and is successful in such
action, the Company shall reimburse Indemnitee for all of lndemnitee's fees and
expenses in bringing and pursuing such action. The company hereby agrees at the
option of the executive to issue a combination of stock and cash to executive at
the election of the executive to receive any combination of cash or stock in the
form of options at a 35% discount to the market on a ten day trailing average.
9. Non-exclusivity. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which Indemnitee may be entitled under
the Act, the Articles, the Bylaws, any agreement, any vote of shareholders or
disinterested directors, or otherwise, both as to action in indemnitee's
official capacity, and as to action In another capacity while holding such
office. The indemnification provided wider this Agreement shall continue as to
indemnitee for any action taken or not taken while serving in an Indemnified
capacity even though ho may have ceased to serve in such capacity at the time of
any action, suit, or other covered proceeding.
10. Liability Insurance. To the extent the Company maintains 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 director
or executive officer of the Company.
11. Severability. The provisions of this Agreement shall be regarded as
divisible, and if any of said provisions or any part hereof is declared invalid
or unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without reference to
conflict or choice of law principles thereunder.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of Indemnitee and the Company, and their respective successors, assigns
and personal or legal representatives.
14. Amendment. This Agreement may not be amended or modified at any time
except by written instrument executed by the Company
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and mutually agreed to by Indemnitee & the Company.
15. Notices. Notices given pursuant to this Agreement shall be in writing,
and except as otherwise provided in this Agreement, shall be deemed given when
actually received by Indemnitee or actually received by the Company's President
or any officer of the Company. If sent by mail, such notices shall be mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, if to the XxxxxXxxxxx.xxx Corporation, Attention: Chairman and CEO, One
Union Square, X/X Xxxxxx X. Xxxxxxx, Xxxxx 00-X, Xxx Xxxx, Xxx Xxxx 00000 , or
if to Indemnitee, at the address set forth below Indemnitee's signature of this
Agreement, or to such other address as the party to be notified shall have
theretofore given to the other party in writing.
16. Certain Rules of Construction. No party shall be considered as being
responsible for the drafting of this Agreement for the purpose of applying any
rule construing ambiguities against the drafter or otherwise. No draft of this
Agreement shall be taken into account in construing this Agreement.
17. No Waiver. No waiver by either party at anytime of any breach by the
other party of, or compliance with, any condition or provision of this Agreement
to be performed by the other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or any prior or subsequent
time.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
XxxxxXxxxxx.xxx Corporation
a Delaware Corporation
By:___________________________
Title
______________________________
Executive
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