INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made and entered into as of the
12th day of April, 1999 (the "Agreement") between The ▇▇▇▇▇▇▇ Company, Inc.,
a Delaware corporation, (the "Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the
"Independent Director").
WHEREAS, the Company's Board of Directors, pursuant to a resolution
unanimously adopted by such Board of Directors, authorized the Independent
Director to consider, negotiate and approve (if the Independent Director
deems it appropriate), on behalf of the Board of Directors of the Company,
the terms and conditions of certain transactions and arrangements with
Sunbeam Corporation, a Delaware corporation and the indirect beneficial owner
of approximately 80% of the Company's issued and outstanding capital stock
("Sunbeam"), relating to (i) the proposed pledge by the Company of assets to
secure the Company's demand note payable to Sunbeam, and (ii) the proposed
execution by the Company of revisions to such note or a new or amended note
to Sunbeam (collectively, the "Transactions"); and
WHEREAS, in order to induce the Independent Director to accept the
additional duties, responsibilities and burdens associated with considering,
negotiating and approving (if appropriate) the Transactions, the Company
desires, and the Board of Directors resolved, to provide the Independent
Director with the compensation and indemnification arrangements set forth
herein; and
WHEREAS, the Independent Director is willing to serve as an
independent director of the Company in connection with the Transactions and
continue to accept such duties on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. SERVICE OF THE INDEPENDENT DIRECTOR; SCOPE OF INDEMNIFICATION.
The Independent Director hereby agrees to consider, negotiate and (if
appropriate) approve the Transactions on and subject to the terms set forth
herein and in the resolution of the Board of Directors described in the recitals
hereto. The Board of Directors hereby authorizes the Independent Director to
retain, at the expense of the Company, legal and financial advisors in
connection with his consideration and negotiation of the Transactions. It is
understood and agreed that the In-
dependent Director, in his sole discretion, may resign from such position at
any time and for any reason. The Company's obligation to indemnify the
Independent Director in the manner set forth in this Agreement shall continue
in full force and effect, consistent with the terms of Section 9 of this
Agreement, notwithstanding any termination of appointment or resignation of
the Independent Director that may occur.
2. COMPENSATION AND EXPENSE REIMBURSEMENT. As compensation for his
services as a member of the Board of Directors, the Independent Director
shall receive from the Company a fee in the amount of twenty-five thousand
dollars ($25,000) and as compensation for his services as an independent
director of the Company in connection with considering, negotiating and (if
appropriate) approving the Transactions, the Independent Director shall
receive an additional fee in the amount of twenty-five thousand dollars
($25,000) (collectively, the "Fees"). The fees shall be payable to the
Independent Director upon the execution of this Agreement by the parties
hereto. The compensation arrangements contained in this Section 2 shall be
subject to further review, from time to time, by the Board of Directors of
the Company to determine whether any supplemental fees shall be paid to the
Independent Director. In addition to the foregoing, the Independent Director
shall be reimbursed by the Company for his out-of-pocket travel and other
reasonable expenses (including reasonable attorneys' fees and expenses)
incurred in connection with his service, in a manner consistent with the
Company's policies and procedures pertaining to the reimbursement of the
expenses incurred by members of its Board of Directors.
3. INDEMNITY.
(a) In the event that a the Independent Director is, or is
threatened to be made, a party to or participant in any Proceeding (as
defined in Section 12(d) of this Agreement), whether such Proceeding is by or
in the right of the Company, any third party or any other person or entity,
the Company hereby agrees to hold harmless and indemnify the Independent
Director from and against any and all Expenses (as defined in Section 12(b)
of this Agreement), judgments, penalties, liabilities, losses, claims,
damages, fines and amounts, including but not limited to amounts paid in
settlement, incurred by the Independent Director, or incurred on his behalf,
to the fullest extent authorized or permitted by applicable law, by the
Certificate of Incorporation of the Company and by the Company's By-Laws, as
the foregoing may be amended, restated or otherwise modified from time to
time, and including, without limitation, any and all Expenses, judgments,
penalties, liabilities, losses, claims, damages, fines and amounts (including
but not limited to amounts paid in settlement) arising out of or relating to
the actual or alleged acts, omissions, negligence or active
or passive wrongdoing of the Independent Director. The only limitation that
shall exist upon the Company's indemnification obligations pursuant to this
Agreement is that the Company shall not be obligated to make any
indemnity-related payment to the Independent Director that is finally
determined (pursuant to the procedures, and subject to the presumptions, set
forth in Sections 6 and 7 hereof) to be unlawful under Delaware law.
(b) Notwithstanding any other provision of this Agreement to
the contrary, to the extent that the Independent Director is a party to and
is successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified pursuant to subsection (a) above to the maximum extent permitted
by law. However, in the event that (i) the Independent Director is not
wholly successful in a 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, and (ii) it is determined that it is unlawful for the
Independent Director to be indemnified with respect to such unsuccessful
claims, issues or matters, in such instance the Company shall indemnify the
Independent Director against all Expenses incurred by the Independent
Director, or incurred on his behalf, in connection with each successfully
resolved claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in a Proceeding by
dismissal, with or without prejudice shall be deemed to be a success on the
merits or otherwise as to such claim, issue or matter.
4. INDEMNIFICATION FOR EXPENSES INCURRED AS A WITNESS. Notwithstanding any
other provision of this Agreement to the contrary, to the extent that the
Independent Director is, by reason of his service as an independent director
of the Company, a witness in any Proceeding to which the Independent Director
is not a party, the Independent Director shall be indemnified for and against
all Expenses actually and reasonably incurred by the Independent Director or
incurred on his behalf in connection therewith.
5. ADVANCEMENT OF EXPENSES. Notwithstanding any other provision of this
Agreement to the contrary, the Company shall advance or directly pay all
Expenses incurred by or on behalf of the Independent Director in connection
with any Proceeding relevant hereto within thirty (30) days after the receipt
by the Company of a statement or statements from the Independent Director
requesting such advances or payments from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses incurred by or on behalf of, or
charged to, the Independent Director. In connection herewith, the
Independent Director hereby agrees and undertakes to repay any Expenses
advanced or paid hereunder if ultimately it is determined that the
Independent
Director is not entitled to be indemnified or reimbursed for such Expenses in
any given instance. The foregoing undertaking to repay such Expenses by the
Independent Director shall be unsecured and interest-free. Notwithstanding
the foregoing, the obligation of the Company to advance Expenses pursuant to
this Section 5 shall be subject to the condition that, if, when and to the
extent that the Company reasonably determines that the Independent Director
would not be permitted to be indemnified under applicable law (subject to the
terms and conditions of Section 6 of this Agreement), the Company shall be
entitled to reimbursement. within thirty (30) days of such determination, by
the Independent Director for all such amounts theretofore paid; provided,
however, that if the Independent Director has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure a
determination that he should be indemnified under applicable law, any
determination made by the Company that the Independent Director is not
entitled to indemnification under applicable law in a given instance shall
not be binding, and the Independent Director shall not be required to
reimburse the Company for any advance or payment of Expenses until a final
judicial determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or have lapsed).
6. PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. It is the intent of this
Agreement to secure for the Independent Director rights of indemnity and
advancement of Expenses that are as favorable and as broad as permitted under
the law and public policy of the State of Delaware. Accordingly, the parties
hereby agree that the following procedures and presumptions shall apply in
the event of any question or dispute as to whether the Independent Director
is entitled to indemnification or advancement of Expenses under this
Agreement:
(a) To obtain indemnification or any advancement of Expenses by the Company
under this Agreement, the Independent Director shall submit to the Company a
written request, including therein or therewith such documentation and
information as is reasonably available to the Independent Director and as may
be reasonably necessary to enable the Company to determine whether and to
what extent the Independent Director is entitled to indemnification or
advancement of Expenses. The Secretary of the Company shall promptly upon
receipt of such a request for indemnification or advancement of Expenses,
advise the Board of Directors in writing that the Independent Director has
requested indemnification, advancement of Expenses or contribution. The
Independent Director's failure to strictly comply with the procedural
requirements set forth in this Section 6, however, shall not relieve the
Company of any obligation it may have to indemnify or advance hereunder and
shall not alter or
waive any presumptions for determination of entitlement to indemnification or
advancement of Expenses contained herein.
(b) Upon each submission of a written request by the Independent Director
for indemnification pursuant to subsection (a) above, determination with
respect to the Independent Director's entitlement thereto shall be made in
accordance with one of the following methods, the selection of which method
shall be at the discretion of the Independent Director: (i) by a majority
vote of the Disinterested Directors (as defined in Section 12(a) hereof),
even if such Disinterested Directors constitute less than a quorum of the
Board of Directors of the Company; (ii) by Independent Counsel (as defined in
Section 12(c) of this Agreement) in a written opinion, pursuant and subject
to the procedures and selection processes set forth in subsection (c) below;
or (iii) by a majority vote of the Company's stockholders, pursuant and
subject to the procedures set forth in subsection (g) below. Upon each
submission of a written request by the Independent Director for advancement
of Expenses by the Company pursuant to subsection (a) above, such advancement
of Expenses shall be made by the Company in accordance with the provisions of
Section 5 hereof, provided, that in the event that the Company fails to
advance Expenses in accordance therewith the Independent Director shall be
entitled to an adjudication thereof pursuant to Section 7(a) of this
Agreement and provided, further, that the presumptions contained in this
Section 6 shall apply to the resolution, adjudication or settlement of any
disputes relating to advancement of Expenses hereunder.
(c) If the Independent Director elects for the determination
of entitlement to indemnification to be made by Independent Counsel pursuant
to subsection (b) above, the Independent Counsel shall be selected as
provided in this subsection (c). The Independent Counsel shall be selected
by the Independent Director (unless the Independent Director requests that
the selection be made by the Board of Directors). The Independent Director
or the Board of Directors of the Company, as the case may be, may, within ten
(10) days after the written notice of selection is provided, deliver to the
Company or to the Independent Director, as the case may be, a written
objection to such selection; provided, however, that any such objection may
be asserted only on the grounds that the selected Independent Counsel does
not meet the requirements set forth in the definition of "Independent
Counsel" contained in Section 12(c) of this Agreement. and the objection
shall set forth with particularity the factual basis of such assertion.
Absent a proper and timely objection, the counsel so selected shall act as
Independent Counsel. If a written objection is made and substantiated, the
selected Independent Counsel may not serve as Independent Counsel unless and
until such objection is withdrawn or a court of competent jurisdiction has
determined that such objection is without merit. If, within twenty (20) days
after the Independent Director's submission of a written request for
indemnification pursuant to subsection (a) above and his election to have his
entitlement to indemnification determined by Independent Counsel, no
Independent Counsel shall have been selected, or objections to selection have
not been resolved, either the Company or the Independent Director may
petition the Court of Chancery of the State of Delaware for resolution of any
objection made by the Company or the Independent Director to the other's
selection of Independent Counsel and/or for the appointment of an Independent
Counsel selected by the court or by such other perso as the court may
designate. The Company shall pay any and all Expenses of such Independent
Counsel relating to its performance of services in connection herewith, and
the Company shall pay all Expenses incident to the procedures contained in
this subsection (c), irrespective of the manner in which such Independent
Counsel was selected or appointed.
(d) In making a determination with respect to the Independent
Director's entitlement to indemnification hereunder, and as available in the
resolution, adjudication or settlement of any disputes relating to
indemnification or advancement hereunder, the person(s) or entity making such
determination or facilitating the resolution, adjudication or settlement of
such dispute shall presume, and by its execution of this Agreement the
Company hereby agrees to presume, that the Independent Director is entitled
to indemnification or advancement of Expenses under this Agreement if the
Independent Director has submitted a request for indemnification or
advancement of Expenses in accordance with subsection (a) above. Anyone
seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion, by clear and convincing evidence. In addition, if the
person(s) or entity making a determination pursuant to subsection (b) above
shall determine that the Independent Director is not entitled to
indemnification hereunder, such determination shall not create a presumption
against the Independent Director's entitlement to indemnification in any
later action, suit or proceeding initiated by the Independent Director to
enforce his rights under this Agreement.
(e) The Independent Director shall be deemed to have acted in
good faith if the Independent Director's action is based on the Independent
Director's good faith reliance upon the records or books of account of the
Company or any other person, enterprise or entity, including financial
statements, or on information supplied to the Independent Director by the
officers of the Company or such other person, enterprise or entity in the
course of their duties, or on the advice of legal counsel for the Company or
the Independent Director or on information or records given or reports made
to the Company or the Independent Director by an independent certified public
accountant, by a financial advisor or by an appraiser or other expert
selected by the Company or the Independent Director. In addition, the
knowledge and/or actions, or failure to act, of any director, officer, agent
or employee of the Company or any other person, enterprise or entity shall
not be imputed to the Independent Director for purposes of determining the
Independent Director's right to indemnification or advancement of Expenses
under this Agreement. Irrespective of whether the foregoing provisions of
this subsection (e) are satisfied, it shall be presumed in any event that the
Independent Director has at all times acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of
the Company. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion, by clear and convincing
evidence.
(f) The Company acknowledges that a settlement or other
disposition of a Proceeding short of final judgment may be desirable if it
permits a party to avoid expense, delay, distraction, disruption and
uncertainty. In the event that any Proceeding to which the Independent
Director is a party is resolved in any manner other than by adverse judgment
against the Independent Director (including, without limitation, settlement
of such Proceeding with or without payment of money or other consideration),
it shall not be presumed that the Independent Director has not been
successful on the merits or otherwise in such Proceeding.
(g) The Independent Director shall reasonably cooperate with
the person(s) or entity making the determination regarding the Independent
Director's entitlement to indemnification, including providing to such
person(s) or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure
and which is reasonably available to the Independent Director and reasonably
necessary to such determination. Any Expenses incurred by the Independent
Director in so cooperating with the person(s) or entity making such
determination shall be borne by the Company (irrespective of the
determination as to the Independent Director's entitlement to
indemnification), and the Company hereby agrees to indemnify and hold
harmless the Independent Director therefrom.
7. REMEDIES.
(a) In the event that (i) a determination is made pursuant to
Section 6 of this Agreement that the Independent Director is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not
timely made pursuant to Section 5 of this Agreement, (iii) no determination
of entitlement to indemnification is made pursuant to Section 6 of this
Agreement within one hundred twenty (120)
days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made within ten (10) days after a
determination has been made that the Independent Director is entitled to
indemnification pursuant to Section 6 of this Agreement, or (v) the Company
has not complied with any other term of this Agreement intended for the
benefit of the Independent Director; then, in any such event, the Independent
Director shall be entitled to an adjudication of the foregoing in an
appropriate court of the State of Delaware, or in any other court of
competent jurisdiction. The Company shall not oppose the Independent
Director's right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to
Section 6 of this Agreement that the Independent Director is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section 7
shall be conducted in all respects as a de novo trial, on the merits, and the
Independent Director shall not be prejudiced by reason of that adverse
determination.
(c) If a determination shall have been made pursuant to Section 6 of
this Agreement that the Independent Director is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding
commenced pursuant to this Section 7, absent a prohibition of such
indemnification under applicable law.
(d) In the event that the Independent Director, pursuant to this
Section 7, seeks a judicial adjudication of his rights under, or to recover
damages for breach of, this Agreement or to recover under any directors' and
officers' liability insurance policies maintained by the Company, the Company
shall pay on his behalf, in advance, any and all Expenses incurred by him in
such judicial adjudication regardless of whether the Independent Director
ultimately is determined to be entitled to such indemnification, advancement
of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court that the Company is bound by all the
provisions of this Agreement.
8. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS;
INSURANCE; SUBROGATION.
(a) The rights of indemnification set forth in this Agreement
shall not be deemed exclusive of any other rights to which the Independent
Director may at any time be entitled under applicable law, the Certificate of
Incorporation of the Company, or the By-Laws of the Company. No amendment,
alteration or repeal of this Agreement or any provision hereof shall limit or
restrict any right of the Independent Director under this Agreement in
respect of any action taken or omitted by the Independent Director in his
capacity as an independent director of the Company prior to such amendment,
alteration or repeal. To the extent that a change in the law, whether by
statute or judicial decision, permits greater indemnification or advancement
rights than currently are afforded under the Company's Certificate of
Incorporation, the Company's By-Laws and this Agreement, it is the intent of
the parties hereto that the Independent Director shall enjoy by this
Agreement the greater benefits so afforded by such change. No right or
remedy conferred herein is intended to be exclusive of any other right or
remedy of the Independent Director, and every other right or remedy shall be
cumulative and in addition to every other right or remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an
insurance policy or policies providing liability insurance for directors,
officers, employees, agents or fiduciaries of the Company or of any other
corporation partnership, joint venture, employee benefit plan or other
enterprise which such person serves at the request of the Company, the
Independent Director 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 such director, officer, employee, agent or fiduciary under
such policy or policies.
(c) In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
the Independent Director 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 Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment
of amounts otherwise indemnifiable hereunder if and to the extent that the
Independent Director otherwise and actually has received such payment under
any insurance policy, contract, agreement or otherwise.
9. DURATION OF AGREEMENT. All agreements and obligations of the
Company contained herein shall continue with respect to the Independent
Director during the period in which the Independent Director serves as an
independent director of the Company and shall continue in perpetuity
thereafter, whether or not the Independent Director is acting or serving in
such capacity at the time any expense, judgment, penalty, liability, loss,
claim, damage, fine or amount is incurred for which indemnification or
advancement can be provided under this Agreement. This Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the
parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns,
spouses, heirs, executors and personal and legal representatives. This
Agreement shall continue in effect irrespective of whether the Independent
Director continues to serve as an independent director of the Company or
whether the Independent Director's appointment as an independent director of
the Company is terminated for any reason.
10. REVOCATION. If the Board of Directors in its sole discretion
(without the vote of the Independent Director) determines to provide any
security to the Independent Director for the Company's obligations hereunder,
any such security, once provided to the Independent Director, may not be
revoked or released without the prior written consent of the Independent
Director.
11. ENFORCEMENT; ENTIRE AGREEMENT.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and has assumed the obligations imposed on it
hereby in order to induce the Independent Director to serve as an independent
director of the Company, and the Company acknowledges that such the
Independent Director is relying upon this Agreement in agreeing to serve.
(b) Subject to Section 8 hereof, this Agreement
constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
12. DEFINITIONS. For purposes of this Agreement:
(a) "Disinterested Director" means a member of the Board
of Directors of the Company who is not and was not a party to the Proceeding
in respect of which indemnification is sought by the Independent Director.
(b) "Expenses" shall include all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, participating, or being or
preparing to be a witness in any Proceeding or other proceeding of the type
described in the definition of "Proceeding" set forth below.
(c) "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 Independent Director in any matter (other than with
respect to matters concerning the rights of the Independent Director under
this Agreement), or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or the Independent Director in an
action to determine the Independent Director's rights under this Agreement.
(d) "Proceeding" includes any action, threatened,
pending or completed action, suit, litigation, claim, arbitration, mediation,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened, pending or completed
proceedings whether brought by or in the right of the Company or otherwise
and whether civil, criminal, administrative or investigative, in which the
Independent Director was, is or will be involved as a party or otherwise, (i)
by reason of the fact that the Independent Director is or was an independent
director of the Company, or (ii) by reason of any action taken by him or of
any inaction on his part while acting as an independent director of the
Company, in each case whether or not he is acting or serving in such capacity
at the time any Expense, judgment, penalty, liability, loss, claim, damage,
fine or other amount for which indemnification can be provided under this
Agreement is incurred or imposed.
13. SEVERABILITY. If any provision or provisions of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
void, illegal or otherwise unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitations each portion of any section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable that is not itself invalid, illegal or unenforceable) shall not
be affected or impaired in any way thereby and shall remain enforceable to
the fullest extent permitted by law; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitations each portion
of
any section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
14. MODIFICATION AND WAIVER. No supplement. modification,
waiver, termination or amendment of all or any portion of this Agreement
shall be binding unless expressed in a written instrument executed by the
relevant parties hereto. No waiver of any term or provision of this
Agreement shall be deemed or shall constitute a waiver of any other terms or
provisions hereof (whether or not similar), and any such waiver shall be
effective only in the specific instance, for the specific duration and for
the express purpose for which it is given. Any waiver or failure to insist
upon strict compliance with any term or provision of this Agreement shall not
operate as a waiver of, or an estoppel with respect to, any subsequent or
other failure to comply.
15. NOTICE OF SERVICE BY THE INDEPENDENT DIRECTOR. The
Independent Director agrees promptly to notify the Company in writing upon
being served with any summons, citation, subpoena, complaint, indictment or
other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Company
shall not relieve the Company of any obligation which it may have to the
Independent Director under this Agreement or otherwise.
16. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered to and receipted for by the party to whom said
notice or other communication shall have been directed, (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed, or (iii) sent by facsimile, the
successful transmission and receipt of which is confirmed in a written
report, in each instance to the addresses and/or facsimile numbers set forth
below:
(a) If to the Independent Director, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BY FEDEX
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BY CERTIFIED MAIL
▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute effective
notice) to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
(b) If to the Company, to:
The ▇▇▇▇▇▇▇ Company, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy (which shall not constitute effective
notice) to:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
or to such other address or facsimile number as may have been furnished to
the Independent Director by the Company or to the Company by the Independent
Director, as the case may be.
17. IDENTICAL COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same
agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of
this Agreement.
18. HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction or interpretation thereof.
19. GOVERNING LAW. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
THE ▇▇▇▇▇▇▇ COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, General Counsel
and Secretary
THE INDEPENDENT DIRECTOR
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