INDEMNIFICATION AGREEMENT
Exhibit
10.15
This
Indemnification Agreement, dated as of May 10, 2007, is made by and between
Alternative Energy Sources, Inc., a Delaware corporation (the “Corporation”)
and
Xxx X. Xxxxx (the “Indemnitee”).
RECITALS
A. The
Corporation recognizes that competent and experienced persons are increasingly
reluctant to serve or to continue to serve as directors or officers of
corporations unless they are protected by comprehensive liability insurance
or
indemnification, or both, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to the fact
that the exposure frequently bears no reasonable relationship to the
compensation of such directors and officers;
B. The
statutes and judicial decisions regarding the duties of directors and officers
are often difficult to apply, ambiguous, or conflicting, and therefore fail
to
provide such directors and officers with adequate, reliable knowledge of legal
risks to which they are exposed or information regarding the proper course
of
action to take;
C. The
Corporation and Indemnitee recognize that plaintiffs often seek damages in
such
large amounts and the costs of litigation may be so enormous (whether or not
the
case is meritorious), that the defense and/or settlement of such litigation
is
often beyond the personal resources of directors and officers;
D. The
Corporation believes that it is unfair for its directors and officers to assume
the risk of huge judgments and other expenses which may occur in cases in which
the director or officer received no personal profit and in cases where the
director or officer was not culpable;
E. The
Corporation, after reasonable investigation, has determined that the liability
insurance coverage presently available to the Corporation may be inadequate
in
certain circumstances to cover all possible exposure for which Indemnitee should
be protected. The Corporation believes that the interests of the Corporation
and
its stockholders would best be served by a combination of such insurance and
the
indemnification by the Corporation of the directors and officers of the
Corporation;
F. The
Corporation’s Bylaws require the Corporation to indemnify its directors and
officers to the fullest extent permitted by the Delaware General Corporation
Law
(the “DGCL”);
G. Section
145 of the DGCL (“Section 145”),
under
which the Corporation is organized, empowers the Corporation to indemnify its
officers, directors, employees and agents by agreement and to indemnify persons
who serve, at the request of the Corporation, as the directors, officers,
employees or agents of other corporations or enterprises, and expressly provides
that the indemnification provided by Section 145 is not
exclusive;
H. The
Board
of Directors has determined that contractual indemnification as set forth herein
is not only reasonable and prudent but also promotes the best interests of
the
Corporation and its stockholders;
I. The
Corporation desires and has requested Indemnitee to serve or continue to serve
as a director or officer of the Corporation and/or one or more subsidiaries
or
affiliates of the Corporation free from undue concern for unwarranted claims
for
damages arising out of or related to such services to the Corporation and/or
one
or more subsidiaries or affiliates of the Corporation; and
J. Indemnitee
is willing to serve, continue to serve or to provide additional service for
or
on behalf of the Corporation on the condition that he or she is furnished the
indemnity provided for herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
below, and other good and valuable consideration, the receipt and adequacy
of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section
1. Generally.
To the
fullest extent permitted by the laws of the State of Delaware:
(a) The
Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by
reason of the fact that Indemnitee is or was or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of the
Corporation, or while serving as a director or officer of the Corporation,
is or
was serving or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent (which, for purposes hereof, shall include
a trustee, partner or manager or similar capacity) of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
or
by reason of any action alleged to have been taken or omitted in such
capacity.
(b) The
indemnification provided by this Section 1 shall be from and against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection with such action, suit or proceeding and any appeal therefrom, but
shall only be provided if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests
of
the Corporation, and, with respect to any criminal action, suit or proceeding,
had no reasonable cause to believe Indemnitee’s conduct was
unlawful.
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(c) Notwithstanding
the foregoing provisions of this Section 1, in the case of any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that Indemnitee is or
was
a director, officer, employee or agent of the Corporation, or while serving
as a
director or officer of the Corporation, is or was serving or has agreed to
serve
at the request of the Corporation as a director, officer, employee or agent
of
another corporation, partnership, joint venture, trust, employee benefit plan
or
other enterprise, no indemnification shall be made in respect of any claim,
issue or matter as to which Indemnitee shall have been adjudged to be liable
to
the Corporation unless, and only to the extent that, the Delaware Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of
all
the circumstances of the case, Indemnitee is fairly and reasonably entitled
to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
(d) The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of
itself, create a presumption that Indemnitee did not act in good faith and
in a
manner which Indemnitee reasonably believed to be in or not opposed to the
best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee’s conduct was
unlawful.
Section
2. Successful
Defense; Partial Indemnification.
To the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section 1 hereof or in defense
of any claim, issue or matter therein, Indemnitee shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred in
connection therewith. For purposes of this Agreement and without
limiting the foregoing, if any action, suit or proceeding is disposed of, on
the
merits or otherwise (including a disposition without prejudice), without (i)
the
disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee
was liable to the Corporation, (iii) a plea of guilty or nolo contendere by
Indemnitee, (iv) an adjudication that Indemnitee did not act in good faith
and
in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and (v) with respect to any criminal proceeding,
an adjudication that Indemnitee had reasonable cause to believe Indemnitee’s
conduct was unlawful, Indemnitee shall be considered for the purposes hereof
to
have been wholly successful with respect thereto.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Corporation for some or a portion of the expenses (including attorneys’
fees), judgments, fines or amounts paid in settlement actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with any action,
suit, proceeding or investigation, or in defense of any claim, issue or matter
therein, and any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion
of such expenses (including attorneys’ fees), judgments, fines or amounts paid
in settlement to which Indemnitee is entitled.
Section
3. Determination
That Indemnification Is Proper.
Any
indemnification hereunder shall (unless otherwise ordered by a court) be made
by
the Corporation unless a determination is made that indemnification of such
person is not proper in the circumstances because he or she has not met the
applicable standard of conduct set forth in Section 1(b) hereof. Any such
determination shall be made (i) by a majority vote of the directors who are
not
parties to the action, suit or proceeding in question (“disinterested
directors”), even if less than a quorum, (ii) by a
majority vote of a committee of disinterested directors designated by majority
vote of disinterested directors, even if less than a quorum, (iii) by a majority
vote of a quorum of the outstanding shares of stock of all classes entitled
to
vote on the matter, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the action, suit or proceeding
in question, (iv) by independent legal counsel, or (v) by a court of competent
jurisdiction.
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Section
4. Advance
Payment of Expenses; Notification and Defense of Claim.
(a) Expenses
(including attorneys’ fees) incurred by Indemnitee in defending a threatened or
pending civil, criminal, administrative or investigative action, suit or
proceeding, or in connection with an enforcement action pursuant to
Section 5(b), shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding within thirty (30) days after
receipt by the Corporation of (i) a statement or statements from Indemnitee
requesting such advance or advances from time to time, and (ii) an undertaking
by or on behalf of Indemnitee to repay such amount or amounts, only if, and
to
the extent that, it shall ultimately be determined that Indemnitee is not
entitled to be indemnified by the Corporation as authorized by this Agreement
or
otherwise. Such undertaking shall be accepted without reference to the financial
ability of Indemnitee to make such repayment. Advances shall be unsecured and
interest-free.
(b) Promptly
after receipt by Indemnitee of notice of the commencement of any action, suit
or
proceeding, Indemnitee shall, if a claim thereof is to be made against the
Corporation hereunder, notify the Corporation of the commencement thereof.
The
failure to promptly notify the Corporation of the commencement of the action,
suit or proceeding, or Indemnitee’s request for indemnification, will not
relieve the Corporation from any liability that it may have to Indemnitee
hereunder, except to the extent the Corporation is prejudiced in its defense
of
such action, suit or proceeding as a result of such failure.
(c) In
the
event the Corporation shall be obligated to pay the expenses of Indemnitee
with
respect to an action, suit or proceeding, as provided in this Agreement, the
Corporation, if appropriate, shall be entitled to assume the defense of such
action, suit or proceeding, with counsel reasonably acceptable to Indemnitee,
upon the delivery to Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Corporation, the Corporation will not be liable
to Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same action, suit or proceeding, provided
that
(1) Indemnitee shall have the right to employ Indemnitee’s own counsel in such
action, suit or proceeding at Indemnitee’s expense and (2) if (i) the employment
of counsel by Indemnitee has been previously authorized in writing by the
Corporation, (ii) counsel to the Corporation shall have reasonably concluded
that there may be a conflict of interest or position, or reasonably believes
that a conflict is likely to arise, on any significant issue between the
Corporation and Indemnitee in the conduct of any such defense or (iii) the
Corporation shall not, in fact, have employed counsel to assume the defense
of
such action, suit or proceeding, then the fees and expenses of Indemnitee’s
counsel shall be at the expense of the Corporation, except as otherwise
expressly provided by this Agreement. The Corporation shall not be entitled,
without the consent of Indemnitee, to assume the defense of any claim brought
by
or in the right of the Corporation or as to which counsel for the Corporation
shall have reasonably made the conclusion provided for in clause (ii)
above.
4
(d) Notwithstanding
any other provision of this Agreement to the contrary, to the extent that
Indemnitee is, by reason of Indemnitee’s corporate status with respect to the
Corporation or any corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee is or was serving or has
agreed to serve at the request of the Corporation, a witness or otherwise
participates in any action, suit or proceeding at a time when Indemnitee is
not
a party in the action, suit or proceeding, the Corporation shall indemnify
Indemnitee against all expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
Section
5. Procedure
for Indemnification
(a) To
obtain
indemnification, Indemnitee shall promptly submit to the Corporation a written
request, including therein or therewith such documentation and information
as is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
Corporation shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnitee has requested
indemnification.
(b) The
Corporation’s determination whether to grant Indemnitee’s indemnification
request shall be made promptly, and in any event within 60 days following
receipt of a request for indemnification pursuant to Section 5(a). The right
to
indemnification as granted by Section 1 of this Agreement shall be enforceable
by Indemnitee in any court of competent jurisdiction if the Corporation denies
such request, in whole or in part, or fails to respond within such 60-day
period. It shall be a defense to any such action (other than an action brought
to enforce a claim for the advance of costs, charges and expenses under Section
4 hereof where the required undertaking, if any, has been received by the
Corporation) that Indemnitee has not met the standard of conduct set forth
in
Section 1 hereof, but the burden of proving such defense by clear and convincing
evidence shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors or one of its committees, its independent
legal counsel, and its stockholders) to have made a determination prior to
the
commencement of such action that indemnification of Indemnitee is proper in
the
circumstances because Indemnitee has met the applicable standard of conduct
set
forth in Section 1 hereof, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors or one of
its
committees, its independent legal counsel, and its stockholders) that Indemnitee
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has or has not met the applicable
standard of conduct. The Indemnitee’s expenses (including attorneys’ fees)
incurred in connection with successfully establishing Indemnitee’s right to
indemnification, in whole or in part, in any such proceeding or otherwise shall
also be indemnified by the Corporation.
(c) The
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement upon submission of a request for indemnification pursuant to this
Section 5, and the Corporation shall have the burden of proof in overcoming
that
presumption in reaching a determination contrary to that presumption. Such
presumption shall be used as a basis for a determination of entitlement to
indemnification unless the Corporation overcomes such presumption by clear
and
convincing evidence.
5
Section
6. Insurance
and Subrogation.
(a) The
Corporation may purchase and maintain insurance on behalf of Indemnitee who
is
or was or has agreed to serve at the request of the Corporation as a director
or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against, and incurred by, Indemnitee or on
Indemnitee’s behalf in any such capacity, or arising out of Indemnitee’s status
as such, whether or not the Corporation would have the power to indemnify
Indemnitee against such liability under the provisions of this Agreement. If
the
Corporation has such insurance in effect at the time the Corporation receives
from Indemnitee any notice of the commencement of a proceeding, the Corporation
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the policy. The Corporation
shall
thereafter take all necessary or desirable action to cause such insurers to
pay,
on behalf of the Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policy.
(b) In
the
event of any payment by the Corporation under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee with respect to any insurance policy, who shall execute
all papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Corporation
to bring suit to enforce such rights in accordance with the terms of such
insurance policy. The Corporation shall pay or reimburse all expenses actually
and reasonably incurred by Indemnitee in connection with such
subrogation.
(c) The
Corporation shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) if and to the extent that Indemnitee has otherwise actually received
such payment under this Agreement or any insurance policy, contract, agreement
or otherwise.
Section
7. Certain
Definitions.
For
purposes of this Agreement, the following definitions shall apply:
(a) The
term
“action, suit or proceeding” shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense,
settlement, arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative.
(b) The
term
“by reason of the fact that Indemnitee is or was a director, officer, employee
or agent of the Corporation, or while serving as a director or officer of the
Corporation, is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise”
shall be broadly construed and shall include, without limitation, any actual
or
alleged act or omission to act.
6
(c) The
term
“expenses” shall be broadly and reasonably construed and shall include, without
limitation, all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and related disbursements,
appeal bonds, other out-of-pocket costs and reasonable compensation for time
spent by Indemnitee for which Indemnitee is not otherwise compensated by the
Corporation or any third party, provided that the rate of compensation and
estimated time involved is approved by the Board, which approval shall not
be
unreasonably withheld), actually and reasonably incurred by Indemnitee in
connection with either the investigation, defense or appeal of a proceeding
or
establishing or enforcing a right to indemnification under this Agreement,
Section 145 of the General Corporation Law of the State of Delaware or
otherwise.
(d) The
term
“judgments, fines and amounts paid in settlement” shall be broadly construed and
shall include, without limitation, all direct and indirect payments of any
type
or nature whatsoever including, without limitation, all penalties and amounts
required to be forfeited or reimbursed to the Corporation, as well as any
penalties or excise taxes assessed on a person with respect to an employee
benefit plan).
(e) The
term
“Corporation” shall include, without limitation and in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or
was a
director, officer, employee or agent of such constituent corporation, or is
or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall stand in the same
position under the provisions of this Agreement with respect to the resulting
or
surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
(f) The
term
“other enterprises” shall include, without limitation, employee benefit
plans.
(g) The
term
“serving at the request of the Corporation” shall include, without limitation,
any service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee
or
agent with respect to an employee benefit plan, its participants or
beneficiaries.
(h) A
person
who acted in good faith and in a manner such person reasonably believed to
be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interests of
the Corporation” as referred to in this Agreement.
Section
8. Limitation
on Indemnification.
Notwithstanding any other provision herein to the contrary, the Corporation
shall not be obligated pursuant to this Agreement:
7
(a) Claims
Initiated by Indemnitee.
To
indemnify or advance expenses to Indemnitee with respect to an action, suit
or
proceeding (or part thereof) initiated by Indemnitee, except with respect to
an
action, suit or proceeding brought to establish or enforce a right to
indemnification (which shall be governed by the provisions of Section 8(b)
of
this Agreement), unless such action, suit or proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the
Corporation.
(b) Action
for Indemnification.
To
indemnify Indemnitee for any expenses incurred by Indemnitee with respect to
any
action, suit or proceeding instituted by Indemnitee to enforce or interpret
this
Agreement, unless Indemnitee is successful in establishing Indemnitee’s right to
indemnification in such action, suit or proceeding, in whole or in part, or
unless and to the extent that the court in such action, suit or proceeding
shall
determine that, despite Indemnitee’s failure to establish their right to
indemnification, Indemnitee is entitled to indemnity for such expenses;
provided, however, that nothing in this Section 8(b) is intended to limit the
Corporation’s obligation with respect to the advancement of expenses to
Indemnitee in connection with any such action, suit or proceeding instituted
by
Indemnitee to enforce or interpret this Agreement, as provided in Section 4
hereof.
(c) Section
16 Violations.
To
indemnify Indemnitee on account of any proceeding with respect to which final
judgment is rendered against Indemnitee for payment or an accounting of profits
arising from the purchase or sale by Indemnitee of securities in violation
of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar
successor statute.
(d) Noncompete
and Nondisclosure.
To
indemnify Indemnitee in connection with proceedings or claims involving the
enforcement of noncompete and/or nondisclosure agreements or the noncompete
and/or nondisclosure provisions of employment, consulting or similar agreements
the Indemnitee may be a party to with the Corporation, or any subsidiary of
the
Corporation or any other applicable foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, if any.
Section
9. Certain
Settlement Provisions.
The
Corporation shall have no obligation to indemnify Indemnitee under this
Agreement for amounts paid in settlement of any action, suit or proceeding
without the Corporation’s prior written consent, which shall not be unreasonably
withheld. The Corporation shall not settle any action, suit or proceeding in
any
manner that would impose any fine or other obligation on Indemnitee without
Indemnitee’s prior written consent, which shall not be unreasonably
withheld.
Section
10. Savings
Clause.
If any
provision or provisions of this Agreement shall be invalidated on any ground
by
any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify Indemnitee as to costs, charges and expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to
the
full extent permitted by any applicable portion of this Agreement that shall
not
have been invalidated and to the full extent permitted by applicable law.
8
Section
11. Contribution.
In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for herein is held by a court of competent
jurisdiction to be unavailable to Indemnitee in whole or in part, it is agreed
that, in such event, the Corporation shall, to the fullest extent permitted
by
law, contribute to the payment of Indemnitee’s costs, charges and expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, in an amount that is just and equitable in
the
circumstances, taking into account, among other things, contributions by other
directors and officers of the Corporation or others pursuant to indemnification
agreements or otherwise; provided, that, without limiting the generality of
the
foregoing, such contribution shall not be required where such holding by the
court is due to (i) the failure of Indemnitee to meet the standard of conduct
set forth in Section 1 hereof, or (ii) any limitation on indemnification set
forth in Section 6(c), 8 or 9 hereof.
Section
12. Form
and Delivery of Communications.
Any
notice, request or other communication required or permitted to be given to
the
parties under this Agreement shall be in writing and either delivered in person
or sent by telecopy, telex, telegram, overnight mail or courier service, or
certified or registered mail, return receipt requested, postage prepaid, to
the
parties at the following addresses (or at such other addresses for a party
as
shall be specified by like notice):
If
to the
Corporation:
Alternative
Energy Sources, Inc.
0000
Xxxxxxx
Xxxxxx
Xxxx, Xxxxxxxx 00000
Attn: Xxxx
X.
Xxxxxxx
Facsimile:
(000) 000-0000
If
to
Indemnitee:
Xxx
X.
Xxxxx
00000
Xxxx Xx.
Xxxxxxxxxx,
XX 00000
Section
13. Subsequent
Legislation.
If the
General Corporation Law of Delaware is amended after adoption of this Agreement
to expand further the indemnification permitted to directors or officers, then
the Corporation shall indemnify Indemnitee to the fullest extent permitted
by
the General Corporation Law of Delaware, as so amended.
Section
14. Nonexclusivity.
The
provisions for indemnification and advancement of expenses set forth in this
Agreement shall not be deemed exclusive of any other rights which Indemnitee
may
have under any provision of law, the Corporation’s Certificate of Incorporation
or Bylaws, in any court in which a proceeding is brought, the vote of the
Corporation’s stockholders or disinterested directors, other agreements or
otherwise, and Indemnitee’s rights hereunder shall continue after Indemnitee has
ceased acting as an agent of the Corporation and shall inure to the benefit
of
the heirs, executors and administrators of Indemnitee. However, no amendment
or
alteration of the Corporation’s Certificate of Incorporation or Bylaws or any
other agreement shall adversely affect the rights provided to Indemnitee under
this Agreement.
9
Section
15. Enforcement.
The
Corporation shall be precluded from asserting in any judicial proceeding that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Corporation agrees that its execution of this Agreement shall
constitute a stipulation by which it shall be irrevocably bound in any court
of
competent jurisdiction in which a proceeding by Indemnitee for enforcement
of
his rights hereunder shall have been commenced, continued or appealed, that
its
obligations set forth in this Agreement are unique and special, and that failure
of the Corporation to comply with the provisions of this Agreement will cause
irreparable and irremediable injury to Indemnitee, for which a remedy at law
will be inadequate. As a result, in addition to any other right or remedy
Indemnitee may have at law or in equity with respect to breach of this
Agreement, Indemnitee shall be entitled to injunctive or mandatory relief
directing specific performance by the Corporation of its obligations under
this
Agreement.
Section
16. Interpretation
of Agreement.
It is
understood that the parties hereto intend this Agreement to be interpreted
and
enforced so as to provide indemnification to Indemnitee to the fullest extent
now or hereafter permitted by law.
Section
17. Entire
Agreement.
This
Agreement and the documents expressly referred to herein constitute the entire
agreement between the parties hereto with respect to the matters covered hereby,
and any other prior or contemporaneous oral or written understandings or
agreements with respect to the matters covered hereby are expressly superceded
by this Agreement.
Section
18. Modification
and Waiver.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any
other provision hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver.
Section
19. Successor
and Assigns.
All of
the terms and provisions of this Agreement shall be binding upon, shall inure
to
the benefit of and shall be enforceable by the parties hereto and their
respective successors, assigns, heirs, executors, administrators and legal
representatives. The Corporation shall require and cause any direct or indirect
successor (whether by purchase, merger, consolidation or otherwise) to all
or
substantially all of the business or assets of the Corporation, by written
agreement in form and substance reasonably satisfactory to Indemnitee, expressly
to assume and agree to perform this Agreement in the same manner and to the
same
extent that the Corporation would be required to perform if no such succession
had taken place.
Section
20. Service
of Process and Venue.
For
purposes of any claims or proceedings to enforce this agreement, the Corporation
consents to the jurisdiction and venue of any federal or state court of
competent jurisdiction in the states of Delaware and Georgia, and waives and
agrees not to raise any defense that any such court is an inconvenient forum
or
any similar claim.
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Section
21. Supercedes
Prior Agreement.
This
Agreement supercedes any prior indemnification agreement between Indemnitee
and
the Corporation or its predecessors.
Section
22. Governing
Law.
This
Agreement shall be governed exclusively by and construed according to the laws
of the State of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware. If a court of
competent jurisdiction shall make a final determination that the provisions
of
the law of any state other than Delaware govern indemnification by the
Corporation of its officers and directors, then the indemnification provided
under this Agreement shall in all instances be enforceable to the fullest extent
permitted under such law, notwithstanding any provision of this Agreement to
the
contrary.
Section
23. Employment
Rights.
Nothing
in this Agreement is intended to create in Indemnitee any right to employment
or
continued employment.
Section
24. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original and all of which together shall be deemed to be one
and
the same instrument, notwithstanding that both parties are not signatories
to
the original or same counterpart.
Section
25. Headings.
The
section and subsection headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
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IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered to be
effective as of the date first above written.
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By
|
|
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Name:
|
Xxxx
Xxxxxx
|
|
Title:
|
Chief
Executive Officer
|
|
INDEMNITEE:
|
|
|
Name:
|
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