Exhibit (e)(16)
INDEMNITY AGREEMENT
This Indemnity Agreement, dated as of __________________, 2000, is made by
and between xxXxxxx.xxx, Inc., a Delaware corporation (the "Company"), and
________________________________________ (the "Indemnitee").
RECITALS
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The Company has concluded that, to retain and attract talented and experienced
individuals to serve as directors, board committee members or executive officers
of the Company, it is necessary for the Company to contractually indemnify its
directors, board committee members and officers and to assume for itself maximum
liability for expenses and damages in connection with claims against such
directors, board committee members and officers in connection with their service
to the Company and its subsidiaries, and has further concluded that the failure
to provide such contractual indemnification could result in great harm to the
Company and the Company's stockholders.
Section 145 of the General Corporation Law of Delaware, under which the Company
is organized ("Section 145"), empowers the Company to indemnify its directors,
officers, employees and agents by agreement and to indemnify persons who serve,
at the request of the Company, 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.
Indemnitee is willing to serve, or to continue to serve, the Company, in
consideration for the indemnity provided for herein.
AGREEMENT
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NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions.
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(a) Agent. For the purposes of this Agreement, "agent" of the Company
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means any person who is or was a director, board committee member, executive
officer, employee or other agent of the Company or a subsidiary of the Company;
or is or was serving at the request of, for the convenience of, or to represent
the interests of the Company or a subsidiary of the Company as a director,
officer, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise; or was a director,
officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the Company or a subsidiary of the Company, or was a
director, officer, employee or agent of another enterprise at the request of,
for the convenience of, or to represent the interests of such predecessor
corporation.
(b) Change in Control. For the purposes of this Agreement, "Change in
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Control" means, and shall be deemed to have occurred if, on or after the date of
this Agreement, (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act
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of 1934, as amended), other than (A) Trilogy Software, Inc., Trilogy, Inc. or
any of their respective affiliates, other than the Company (collectively,
"Trilogy"), (B) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company acting in such capacity, or (C) a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing more than 50%
of the total voting power represented by the Company's then outstanding voting
securities, (ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least two
thirds (2/3) of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
or (iii) a merger or consolidation of the Company is consummated with any other
corporation other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 80% of the total voting
power represented by the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the
Company consummates a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of (in one transaction or a
series of related transactions) all or substantially all of the Company's
assets.
(c) Expenses. For purposes of this Agreement, "expenses" include all
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out-of-pocket costs of any type or nature whatsoever (including, without
limitation, all attorneys' fees and related disbursements), actually and
reasonably incurred by the Indemnitee in connection with either the
investigation, defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement or Section 145 or otherwise;
provided, however, that "expenses" shall not include any judgments, fines, ERISA
excise taxes or penalties, or amounts paid in settlement of a proceeding.
(d) Independent Legal Counsel. For the purpose of this Agreement,
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"Independent Legal Counsel" means an attorney or firm of attorneys, selected in
accordance with the provisions of Section 19 who shall not have otherwise
performed services for the Company, the board of directors of the Company, any
committee of that board of directors, Trilogy, or the Indemnitee within the last
three years (other than with respect to matters concerning the rights of the
Indemnitee under this Agreement, or of other indemnitees under similar indemnity
agreements).
(e) Parent Transaction. For the purpose of this Agreement, "Parent
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Transaction" means any transaction pursuant to which Trilogy has acquired more
than one-half of the voting securities of the Company outstanding as of the date
hereof that are not already owned by Trilogy as of the date hereof.
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(f) Proceeding. For the purposes of this Agreement, "proceeding"
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means any threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, or investigative.
(g) Reviewing Party. For the purpose of this Agreement, "Reviewing
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Party" means, subject to the provisions of Section 19, any person or body
appointed by the Board of Directors in accordance with applicable law to review
the Company's obligations hereunder, under the Company's Certificate of
Incorporation and Bylaws and under applicable law, which may include a member or
members of the Company's Board of Directors, Independent Legal Counsel or any
other person or body not a party to the particular claim for which the
indemnitee is seeking indemnification; provided, however, that the Reviewing
Party shall not include any person who is an employee of Trilogy or any
affiliate of Trilogy other than the Company.
(h) Subsidiary. For purposes of this Agreement, "subsidiary" means
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any corporation of which more than 50% of the outstanding voting securities is
owned directly or indirectly by the Company, by the Company and one or more
other subsidiaries, or by one or more other subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to
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serve as agent of the Company, at its will (or under separate agreement, if such
agreement exists), in the capacity Indemnitee currently serves as an agent of
the Company, so long as he is duly appointed or elected and qualified in
accordance with the applicable provisions of the Bylaws of the Company or any
subsidiary of the Company or until such time as he tenders his resignation in
writing; provided, however, that nothing contained in this Agreement is intended
to create any right to continued employment by Indemnitee.
3. Liability Insurance.
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(a) Maintenance of D&O Insurance. The Company hereby covenants and
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agrees that, so long as the Indemnitee shall continue to serve as an agent of
the Company and thereafter so long as the Indemnitee shall be subject to any
possible proceeding by reason of the fact that the Indemnitee was an agent of
the Company and in no event for a period of less than six years after the
Indemnitee has discontinued his service as an agent of the Company, the Company,
subject to Section 3(c), shall maintain in full force and effect directors' and
officers' liability insurance ("D&O Insurance") in reasonable amounts from
established and reputable insurers and at least as favorable to the Indemnitee
in all respects as the policy maintained by the Company with National Union Fire
Insurance Company of Pittsburgh, Pennsylvania (Policy No. 858-05-36) as of the
date hereof (the "D&O Insurance Policy"). A copy of the D&O Insurance Policy has
been provided to the Indemnitee and the Company hereby represents and warrants
that the D&O Insurance Policy is in full force and effective as of the date
hereof.
(b) Rights and Benefits. In all policies of D&O Insurance, the
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Indemnitee shall be named as an insured in such a manner as to provide the
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company's directors, if the Indemnitee is a director; or of the
Company's officers, if the Indemnitee is not a director of the Company but is an
officer; or of the Company's key employees, if the Indemnitee is not a director
or officer but is a key employee.
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4. Mandatory Indemnification. Subject to Section 8 below, the Company
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shall indemnify the Indemnitee as follows:
(a) Successful Defense. To the extent the Indemnitee has been
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successful on the merits or otherwise in defense of any proceeding (including,
without limitation, an action by or in the right of the Company) to which the
Indemnitee was a party by reason of the fact that he is or was an agent of the
Company at any time, against all expenses of any type whatsoever actually and
reasonably incurred by him in connection with the investigation, defense or
appeal of such proceeding.
(b) Third Party Actions. If the Indemnitee is a person who was or is
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a party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the Company) by reason of the fact that he is or
was an agent of the Company, or by reason of anything done or not done by him in
any such capacity, the Company shall indemnify the Indemnitee against any and
all expenses and liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes and penalties, and amounts paid in
settlement) actually and reasonably incurred by him or on his behalf in
connection with the investigation, defense, settlement or appeal of such
proceeding, provided the Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company
and its stockholders, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
(c) Derivative Actions. If the Indemnitee is a person who was or is a
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party or is threatened to be made a party to any proceeding by or in the right
of the Company by reason of the fact that he is or was an agent of the Company,
or by reason of anything done or not done by him in any such capacity, the
Company shall indemnify the Indemnitee against all expenses actually and
reasonably incurred by him or on his behalf in connection with the
investigation, defense, settlement, or appeal of such proceeding, provided the
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company and its stockholders; except
that no indemnification under this subsection 4(c) shall be made in respect to
any claim, issue or matter as to which such person shall have been finally
adjudged to be liable to the Company by a court of competent jurisdiction unless
and only to the extent that the court in which such proceeding was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such amounts which the court shall deem proper.
(d) Actions where Indemnitee is Deceased. If the Indemnitee is a
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person who was or is a party or is threatened to be made a party to any
proceeding by reason of the fact that he is or was an agent of the Company, or
by reason of anything done or not done by him in any such capacity, and if prior
to, during the pendency of, or after completion of such proceeding Indemnitee
dies, the Company shall indemnify the Indemnitee's heirs, executors and
administrators against any and all expenses and liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes
and penalties, and amounts paid in settlement) actually and reasonably incurred
to the extent Indemnitee would have been entitled to indemnification pursuant to
Sections 4(a), 4(b), or 4(c) above were Indemnitee still alive.
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(e) Exclusions. Notwithstanding the foregoing, the Company shall not
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be obligated to indemnify the Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes
and penalties, and amounts paid in settlement) for which payment is actually
made to or on behalf of Indemnitee under an insurance policy of D&O Insurance,
or under an indemnity clause, by-law or agreement; provided, however, that if,
for any reason whatsoever, all or part of such payment is rescinded and the
Indemnitee has to return all or part of such payment, the indemnification
obligations of the Company under this Agreement shall apply to the full amount
of such returned payment.
(f) Timing of Payments. All payments on account of the Company's
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indemnification obligations under this Agreement, other than expense advances
made pursuant to Section 6, shall be made within thirty (30) days of the
Indemnitee's request therefor.
5. Partial Indemnification. If the Indemnitee is entitled under any
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provision of this Agreement to indemnification by the Company for some or a
portion of any expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes and penalties, and amounts
paid in settlement) incurred by him in the investigation, defense, settlement or
appeal of a proceeding, but not entitled, however, to indemnification for all of
the total amount thereof, the Company shall nevertheless indemnify the
Indemnitee for such total amount except as to the portion thereof to which the
Indemnitee is not entitled.
6. Mandatory Advancement of Expenses. Subject to Section 8(a) below, the
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Company shall advance all expenses incurred by the Indemnitee in connection with
the investigation, defense, settlement or appeal of any proceeding to which the
Indemnitee is a party or is threatened to be made a party by reason of the fact
that the Indemnitee is or was an agent of the Company. If required by Section
145, the Indemnitee shall deliver a written undertaking to the Company to repay
such amounts advanced if it shall be determined ultimately by a court in a final
adjudication from which there is no further right of appeal that the Indemnitee
is not entitled to be indemnified by the Company as authorized hereby. The
Indemnitee's obligation, if any, to reimburse the Company shall be unsecured
and no interest shall be charged thereon. The advances to be made hereunder
shall be paid by the Company to the Indemnitee within ten (10) days following
delivery of a written request therefor by the Indemnitee to the Company. In the
event that the Company fails to pay expenses as incurred by the Indemnitee as
required by this paragraph, Indemnitee may seek mandatory injunctive relief from
any court having jurisdiction to require the Company to pay expenses as set
forth in this paragraph. If Indemnitee seeks mandatory injunctive relief
pursuant to this paragraph, it shall not be a defense to enforcement of the
Company's obligations set forth in this paragraph that Indemnitee has an
adequate remedy at law for damages.
7. Notice and Other Indemnification Procedures.
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(a) Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any proceeding, the Indemnitee
shall, if the Indemnitee believes that indemnification with respect thereto may
be sought from the Company under this Agreement, notify the Company of the
commencement or threat of commencement thereof; provided, however, that the
failure to give such notice shall not limit the Indemnitee's rights to
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indemnification hereunder, except to the extent that the Company is materially
prejudiced by such failure to give notice or delay in giving notice.
(b) If, at the time of the receipt of a notice of the commencement of
a proceeding pursuant to Section 7(a) hereof, the Company has D&O Insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company 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 policies.
(c) In the event the Company shall be obligated to pay the expenses
of any proceeding against the Indemnitee, the Company shall be entitled to
assume the defense of such proceeding, with counsel approved by the Indemnitee,
upon the delivery to the Indemnitee of written notice of its election so to do.
After delivery of such notice, approval of such counsel by the Indemnitee and
the retention of such counsel by the Company, the Company will not be liable to
the Indemnitee under this Agreement for any fees of counsel subsequently
incurred by the Indemnitee with respect to the same proceeding, provided that
(i) the Indemnitee shall have the right to employ his counsel in any such
proceeding at the Indemnitee's expense; and (ii) if (A) the employment of
counsel by the Indemnitee has been previously authorized by the Company, (B) the
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of any such
defense, or (C) the Company shall not, in fact, have employed counsel to assume
the defense of such proceeding, then the fees and expenses of Indemnitee's
counsel shall be at the expense of the Company.
8. Exceptions. Any other provision herein to the contrary
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notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses
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to the Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by the Indemnitee and not by way of defense, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board, (iii) such indemnification is provided by the Company,
in its sole discretion, pursuant to the powers vested in the Company under the
General Corporation Law of Delaware or (iv) the proceeding is brought to
establish or enforce a right to indemnification under this Agreement or any
other statute or law or otherwise as required under Section 145;
(b) Lack of Good Faith. To indemnify the Indemnitee for any expenses
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incurred by the Indemnitee with respect to any proceeding instituted by the
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Unauthorized Settlements. To indemnify the Indemnitee under this
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Agreement for any amounts paid in settlement of a proceeding unless the Company
consents to such settlement, which consent shall not be unreasonably withheld.
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9. Non-exclusivity. The provisions for indemnification and advancement of
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expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have under any provision of law, the Company's
Certificate of Incorporation or Bylaws, the vote of the Company's stockholders
or disinterested directors, other agreements, or otherwise, both as to action in
his official capacity and to action in another capacity while occupying his
position as an agent of the Company, and the Indemnitee's rights hereunder shall
continue after the Indemnitee has ceased acting as an agent of the Company and
shall inure to the benefit of the heirs, executors and administrators of the
Indemnitee.
10. Enforcement.
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(a) Any right to indemnification or advances granted by this
Agreement to Indemnitee shall be enforceable by or on behalf of Indemnitee in
the Chancery Court of the State of Delaware if (i) the claim for indemnification
or advances is denied, in whole or in part, or (ii) no disposition of such claim
is made within thirty (30) days of request therefor. Indemnitee, in such
enforcement action, if successful in whole or in part, shall be entitled to be
paid also the expense of prosecuting his claim. It shall be a defense to any
action for which a claim for indemnification is made under this Agreement (other
than an action brought to enforce a claim for expenses pursuant to Section 6
hereof, provided that any required undertaking has been tendered to the Company)
that Indemnitee is not entitled to indemnification because of the limitations
set forth in Sections 4 and 8 hereof. Neither the failure of the Company
(including its Board of Directors or its stockholders) to have made a
determination prior to the commencement of such enforcement action that
indemnification of Indemnitee is proper in the circumstances, nor an actual
determination by the Company (including its Board of Directors or its
stockholders) that such indemnification is improper, shall be a defense to the
action or create a presumption that Indemnitee is not entitled to
indemnification under this Agreement or otherwise. Unless there has been a final
adjudication by a court of competent jurisdiction to the contrary, the Company
shall have the burden of proving that indemnification is not required under this
Agreement.
(b) Any costs incurred by or on behalf of Indemnitee in any claim or
proceeding for enforcement of Indemnitee's rights under this Agreement will be
promptly reimbursed by the Company irrespective of the outcome of that claim or
proceeding except where it shall be determined ultimately by a court of
competent jurisdiction in a final adjudication from which there is no further
right of appeal that such claim or proceeding by or on behalf of the Indemnitee
was frivolous.
11. Subrogation. In the event of payment under this Agreement, the Company
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shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
12. Survival of Rights.
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(a) All agreements and obligations of the Company contained herein
shall continue during the period Indemnitee is an agent of the Company and shall
continue thereafter so long as Indemnitee shall be subject to any possible claim
or threatened, pending or completed
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action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative, by reason of the fact that Indemnitee was
serving in the capacity referred to herein.
(b) The Company shall require any successor to the Company (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part of the business or assets of the
Company, by written agreement in form and substance satisfactory to the
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place.
(c) This Agreement shall be binding on and inure to the benefit of
the heirs, personal representatives and estate of the Indemnitee and shall
continue in effect regardless of whether the Indemnitee continues to serve as an
agent of the Company.
13. Interpretation of Agreement. It is understood that the parties hereto
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intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent permitted by law as in
effect on the date hereof or as may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment entitles the
Indemnitee to broader rights of indemnification from the Company than does the
law in effect as of the date hereof) including those circumstances in which
indemnification would otherwise be discretionary.
14. Severability. If any provision or provisions of this Agreement shall
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be held to be invalid, illegal or unenforceable for any reason whatsoever, (i)
the validity, legality and enforceability of the remaining provisions of the
Agreement (including without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and to give
effect to Section 13 hereof.
15. Modification and Waiver. No supplement, modification or amendment of
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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 provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
16. Notice. All notices, requests, demands and other communications under
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this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee or (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written notice.
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17. Governing Law. This Agreement shall be governed exclusively by and
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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.
18. Consent to Jurisdiction and Venue. (a) The Company and the Indemnitee
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each hereby irrevocably agrees that any action or proceeding with respect to
this Agreement or for recognition and enforcement of any judgment in respect
thereof brought by the other party hereto or its or his heirs, successors or
assigns, shall be brought and determined in the Chancery Court of the State of
Delaware, and the Company and the Indemnitee each hereby irrevocably submits
with regard to any such action or proceeding for itself or himself, generally
and unconditionally, to the exclusive jurisdiction of the Chancery Court of the
State of Delaware; provided, however, that such consent to jurisdiction is
solely for the purpose referred to in this Section 18 and shall not be deemed to
be general submission to the jurisdiction of said court or in the State of
Delaware other than for such purpose. The Company and the Indemnitee each hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise in any action or proceeding in respect of this
Agreement, (i) any claim that it or he is not personally subject to the
jurisdiction of the Chancery Court of the State of Delaware for any reason or
that it or he is exempt or immune from jurisdiction of such court or any legal
process commenced in such court, and (ii) to the fullest extent permitted by
applicable law, that the action or proceeding in the Chancery Court of the State
Delaware is brought in an inconvenient forum, that the venue of such action or
proceeding is improper, or that this Agreement, or the subject matter hereof,
may not be enforced in or by such court.
(b) Notwithstanding the provisions of Section 18(a), if the Chancery
Court of the State of Delaware will not take jurisdiction over any action or
proceeding brought in accordance with the provisions of Section 18(a), the
Company and the Indemnitee hereby agree that any court of or in the State of
Delaware may be substituted for the Chancery Court of the State of Delaware in
Section 18(a) with the same force and effect in all respects.
19. Selection of Reviewing Party. If the Indemnitee shall make a claim for
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indemnification, advancement of expenses or other benefits hereunder, a majority
of the disinterested members of the Board of Directors shall appoint a Reviewing
Party to determine the rights of Indemnitee and obligations of the Company
hereunder, under the Company's Certificate of Incorporation and Bylaws, any
other applicable agreements and applicable law; provided, however, that if there
has been a Change in Control or Parent Transaction or if there are no
disinterested members of the Board of Directors, the Reviewing Party shall be
Independent Legal Counsel selected by the disinterested members of the Board of
Directors of the Company (or if there shall be no disinterested directors, by
the General Counsel of the Company, if there is a disinterested General Counsel,
and if not, then by the most senior disinterested officer of the Company) and
approved by the Indemnitee if the Indemnitee shall so request. Such counsel,
among other things, shall render its written opinion to the Company and the
Indemnitee as to whether and to what extent the Indemnitee would be entitled to
be indemnified hereunder under applicable law and the Company agrees to abide by
such opinion. The Company agrees to pay the reasonable fees of the Independent
Legal Counsel referred to above and to indemnify fully such counsel against any
and all expenses (including attorneys' fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.
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20. No Presumptions; Burden of Proof. For purposes of this Agreement, the
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termination of any claim by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere, or its
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equivalent, shall not create a presumption that the 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 this Agreement or applicable
law.
21. Period of Limitations. No legal action shall be brought and no cause
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of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two year period; provided, however, that if any shorter
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period of limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.
The parties hereto have entered into this Indemnity Agreement effective as
of the date first above written.
THE COMPANY:
xxXxxxx.xxx, Inc.
By
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Title
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Address 0000 Xxxxx xx xxx Xxxx
Xxxxxx, Xxxxx 00000
Attn:
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INDEMNITEE:
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[Indemnitee's Printed Name]
Address
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