Exhibit 10.13
XXXXXX & XXXXX CORPORATION
INDEMNIFICATION AGREEMENT
WHEREAS, an Indemnification Agreement (the "Agreement") was entered into
between Xxxxxx & Xxxxx Corporation, a Tennessee corporation (the "Company,"
which term shall include, where appropriate, any Entity (as hereinafter defined)
controlled directly or indirectly by the Company) and (the "Indemnitee") on , ;
and
WHEREAS, Company and Indemnitee desire to amend and restate the Agreement,
effective September 5, 2007, to clarify certain terms and to comply with section
409A of the Internal Revenue Code of 1986, as amended ("Code"), and the final
regulations issued thereunder with respect to reimbursement of certain legal
expenses;
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is serving or
has served (i) as an executive officer or director of the Company, (ii) in any
capacity with respect to any employee benefit plan of the Company, or (iii) as a
director, partner, trustee, officer, employee, or agent of any other Entity at
the request of the Company. For purposes of subsection (iii) of this Section
1(a), if Indemnitee is serving or has served as a director, partner, trustee,
officer, employee or agent of a Subsidiary, Indemnitee shall be deemed to be
serving at the request of the Company.
(b) "Entity" shall mean any corporation, partnership, limited liability
company, joint venture, trust, foundation, association, organization or other
legal entity.
(c) "Expenses" shall mean all reasonable fees, costs and expenses incurred
by Indemnitee in connection with any Proceeding (as defined below), including,
without limitation, attorneys' fees, disbursements and retainers (including,
without limitation, any such fees, disbursements and retainers incurred by
Indemnitee pursuant to Sections 9 and 10(c) of this Agreement), fees and
disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and investment bankers),
court costs, transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges, postage,
delivery services, secretarial services, and other disbursements and expenses.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those terms in
Section 2(a) below.
(e) "Liabilities" shall mean judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts paid in settlement.
(f) "Proceeding" shall mean any threatened, pending or completed claim,
action, suit, arbitration, alternate dispute resolution process, investigation,
informal inquiry by a government agency, administrative hearing, appeal, or any
other proceeding, whether civil, criminal, administrative, arbitrative or
investigative, whether formal or informal, including a proceeding initiated by
Indemnitee pursuant to Section 9 of this Agreement to enforce Indemnitee's
rights hereunder.
(g) "Subsidiary" shall mean any corporation, partnership, limited liability
company, joint venture, trust or other Entity of which the Company owns (either
directly or through or together with another Subsidiary of the Company) either
(i) a general partner, managing member or other similar interest or (ii) (A) 50%
or more of the voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture or other
Entity, or (B) 50% or more of the outstanding voting capital stock or other
voting equity interests of such corporation, partnership, limited liability
company, joint venture or other Entity.
2. Agreement to Indemnify. The Company agrees to indemnify Indemnitee as
follows:
(a) Proceedings Other Than By or In the Right of the Company. Subject to
the exceptions contained in Section 3(a) below, if Indemnitee was or is a party
or is threatened to be made a party to any Proceeding (other than a Proceeding
by or in the right of the Company) by reason of Indemnitee's Corporate Status
and arising out of Indemnitee's actions or failures to act in his or her
capacity as a service provider of the Company, Indemnitee shall be indemnified
by the Company against all Expenses and Liabilities incurred or paid by
Indemnitee in connection with such Proceeding (referred to herein as
"Indemnifiable Expenses" and "Indemnifiable Liabilities," respectively, and
collectively as "Indemnifiable Amounts").
(b) Proceedings By or In the Right of the Company. Subject to the
exceptions contained in Section 3(b) below, if Indemnitee was or is a party or
is threatened to be made a party to any Proceeding by or in the right of the
Company by reason of Indemnitee's Corporate Status and arising out of
Indemnitee's actions or failures to act in his or her capacity as a service
provider of the Company, Indemnitee shall be indemnified by the Company against
all Indemnifiable Expenses.
(c) Presumption Regarding Standard of Care. In making any determination
required to be made under Tennessee law with respect to entitlement to
indemnification hereunder, there shall be a rebuttable presumption that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee
submitted a request therefor in accordance with Section 4 of this Agreement, and
the Company shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any determination
contrary to that presumption.
3. Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Sections 2(a) and 2(b) above in all circumstances other
than with respect to any specific claim, issue or matter involved in the
Proceeding out of which Indemnitee's claim for indemnification has arisen, as
follows:
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(a) Proceedings Other Than By or In the Right of the Company. If
indemnification is requested under Section 2(a) in a Proceeding other than by or
in the right of the Company and it has been finally adjudicated by a court of
competent jurisdiction that, in connection with such specific claim, issue or
matter, Indemnitee (i) engaged in actions or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (ii) failed
to act in a manner Indemnitee reasonably believed to be in the best interests of
the Company in the case of conduct in the Indemnitee's official capacity to the
best interests of the Company in all other cases; (iii) with respect to any
criminal Proceeding, had reasonable cause to believe that Indemnitee's conduct
was unlawful; (iv) improperly received a personal benefit; (v) breached his or
her duty of loyalty to the Company or its shareholders; or (vi) is liable under
Tennessee Code Annotated Section 00-00-000, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts hereunder.
(b) Proceedings By or In the Right of the Company. If indemnification is
requested under Section 2(b) in a Proceeding by or in the right of the Company
and
(i) it has been finally adjudicated by a court of competent
jurisdiction that, in connection with such specific claim, issue or matter,
Indemnitee (A) engaged in actions or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (B) failed to act
in a manner Indemnitee reasonably believed to be in the best interests of the
Company in the case of conduct in the Indemnitee's official capacity with the
Company or at least reasonably believed to be not opposed to the best interests
of the Company in all other cases; (C) with respect to any criminal Proceeding,
had reasonable cause to believe that Indemnitee's conduct was unlawful; (D)
improperly received a personal benefit; (E) breached his or her duty of loyalty
to the Company or its shareholders; or (F) is liable under Tennessee Code
Annotated Section 00-00-000, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses (or any other Indemnifiable Amounts) hereunder; or
(ii) it has been finally adjudicated by a court of competent
jurisdiction that Indemnitee is liable to the Company with respect to such
specific claim, Indemnitee shall not be entitled to payment of Indemnifiable
Expenses (or any other Indemnifiable Amounts) hereunder with respect to such
claim, issue or matter; or;
(iii) it has been finally adjudicated by a court of competent
jurisdiction that Indemnitee is liable to the Company for an accounting of
profits made from the purchase or sale by the Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, the rules and regulations promulgated thereunder and amendments
thereto or similar provisions of any federal, state or local statutory law, or
if the Indemnitee agrees by way of settlement or otherwise to pay any or all of
such profits to the Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses (or any other Indemnifiable Amounts) hereunder.
(c) Insurance Proceeds. To the extent payment is actually made to the
Indemnitee under a valid and collectible insurance policy in respect of
Indemnifiable Amounts in connection with such specific claim, issue or matter,
Indemnitee shall not be entitled to payment of Indemnifiable Amounts hereunder
except in respect of any excess beyond the amount of payment under such
insurance.
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4. Procedure for Payment of Indemnifiable Amounts. Following the final
resolution, without any right of appeal, of a Proceeding, Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Amounts, if
any, for which Indemnitee seeks payment under Section 2 of this Agreement and
the basis for the claim, and affirming the Indemnitee's good faith belief that
he has met the standard of conduct required under Tennessee law to be eligible
to receive indemnification. The Company shall pay such Indemnifiable Amounts to
which Indemnitee is entitled to Indemnitee within sixty (60) calendar days of
receipt of the request. At the request of the Company, Indemnitee shall promptly
furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to
indemnification hereunder.
5. Indemnification for Expense of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such 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, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, the final termination without any
right of appeal of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, by reason of settlement (except a settlement as
provided in Section 3(b)(iii) hereof), judgment, order or otherwise, shall be
deemed to be a successful result as to such claim, issue or matter. Nothing in
this Section 5 shall be construed to limit any indemnification or indemnifiable
amounts to which Indemnitee is otherwise entitled pursuant to this Agreement or
otherwise.
6. Effect of Certain Resolutions. Neither the settlement or termination of
any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create a presumption that
Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any Proceeding by judgment, order, or conviction, except as
pursuant to Section 3 hereof, or by settlement or upon a plea of nolo contendere
or its equivalent shall not 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 Company or, with respect to any criminal
Proceeding, had reasonable cause to believe that Indemnitee's action was
unlawful.
7. Agreement to Advance Expenses; Undertaking. The Company shall advance
all Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding, including a Proceeding by or in the right of the Company, in which
Indemnitee is involved by reason of such Indemnitee's Corporate Status within
thirty (30) calendar days after the receipt by the Company of a written
statement from Indemnitee in accordance with Section 8 hereof requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. To the extent required by Tennessee law,
Indemnitee hereby undertakes to repay any and all of the amount of Expenses
advanced to Indemnitee if it is finally determined by a court of competent
jurisdiction that Indemnitee is not entitled under this Agreement or applicable
law to indemnification with respect to such Expenses. This undertaking is an
unlimited general obligation of Indemnitee.
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8. Procedure for Advance Payment of Expenses. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 7 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses, and affirming the Indemnitee's good faith belief that he has met the
standard of conduct required under Tennessee Law to be eligible to receive
indemnification.
9. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request
for payment of Indemnifiable Amounts under Sections 2 and 4 above or a request
for an advancement of Indemnifiable Expenses under Sections 7 and 8 above and
the Company fails to make such payment or advancement in a timely manner
pursuant to the terms of this Agreement, Indemnitee may petition the Tennessee
Courts (as defined in Section 21 herein) to enforce the Company's obligations
under this Agreement.
(b) Burden of Proof. In any judicial Proceeding brought under Section 9(a)
above, the Company shall have the burden of proving that Indemnitee is not
entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any
Expenses incurred by Indemnitee in connection with investigating, preparing for,
litigating, defending or settling any Proceeding brought by Indemnitee under
Section 9(a) above, or in connection with any claim or counterclaim brought by
the Company in connection therewith, whether or not Indemnitee is successful in
whole or in part in connection with any such Proceeding provided, however, that
(i) such reimbursements will only be made on account of Expenses incurred during
the lifetime of the Indemnitee, (ii) the amount of Expenses eligible for
reimbursement in a calendar year may not affect the amount of Expenses eligible
for reimbursement in another calendar year, and (iii) such reimbursements shall
not be subject to liquidation and cannot be exchanged for any other benefit. The
Company shall reimburse an Expense within sixty (60) calendar days of receipt of
proof of such Expense from the Indemnitee, but in no event later than December
31 of the calendar year following the calendar year in which the Expense was
incurred.
(d) Failure to Act Not a Defense. The failure of the Company (including its
Board of Directors or any committee thereof, independent legal counsel, or
stockholders) to make a determination concerning the permissibility of the
payment of Indemnifiable Amounts or the advancement of Indemnifiable Expenses
under this Agreement shall not be a defense in any Proceeding brought under
Section 9(a) above, and shall not create a presumption that such payment or
advancement is not permissible.
10. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the Company promptly
upon being served with any summons, citation, subpoena, complaint, indictment,
information, notice, request or other document relating to any Proceeding which
may result in the payment of Indemnifiable Amounts or the advancement of
Indemnifiable Expenses hereunder; provided, however, that the failure to give
any such notice shall not disqualify Indemnitee from the right, or otherwise
affect in any manner any right of Indemnitee, to receive payments of
Indemnifiable Amounts or advancements of Indemnifiable Expenses unless the
Company's ability to defend in such Proceeding or to obtain proceeds under any
insurance policy is materially and adversely prejudiced thereby, except to the
extent the Company is thereby actually prejudiced.
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(b) Defense by Company. Subject to the provisions of the last sentence of
this Section 10(b) and of Section 10(c) below, the Company shall have the right
to defend Indemnitee in any Proceeding which may give rise to the payment of
Indemnifiable Amounts hereunder; provided, however, that the Company shall
notify Indemnitee of any such decision to defend within fifteen (15) calendar
days of receipt of notice of any such Proceeding under Section 10(a) above. The
Company shall not, without the prior written consent of Indemnitee, which shall
not be unreasonably withheld or delayed, consent to the entry of any judgment
against Indemnitee or enter into any settlement or compromise which includes an
admission of fault of Indemnitee. In connection with any partial or whole
release of the Company from liability in respect of a Proceeding, the
indemnification or indemnifiable amounts to which the Indemnitee is otherwise
entitled pursuant to this Agreement or otherwise shall remain in full force and
effect, and any such partial release shall not prejudice any potential rights of
contribution of the Indemnitee against the Company or any third party. In
connection with any partial release of the Indemnitee from liability in respect
of a Proceeding, the indemnification or indemnifiable amounts to which the
Indemnitee is otherwise entitled pursuant to this Agreement or otherwise with
respect to such unreleased liability shall remain in full force and effect, and
any such partial release shall not prejudice any potential rights of
contribution of the Company against the Indemnitee or any third party. This
Section 10(b) shall not apply to a Proceeding brought by Indemnitee under
Section 9(a) above or pursuant to Section 18 below. The Indemnitee shall not
intentionally agree to any settlement or make any admission that would be
adverse to the Company or in any other way materially prejudice the Company in
any Proceeding as to which indemnification is available hereunder or which is
being defended by the Company without the prior written consent of the Company,
which shall not be unreasonably withheld or delayed. The Indemnitee shall not
intentionally incur any Expense or Liability, other than reasonable Expenses or
Liabilities incurred in connection with the exercise of the Indemnitee's rights
under Section 10(c) of this Agreement, without the prior written consent of the
Company, which shall not be unreasonably withheld or delayed.
(c) Indemnitee's Right to Counsel. Notwithstanding the provisions of
Section 10(b) above, if in a Proceeding to which Indemnitee is a party by reason
of Indemnitee's Corporate Status, (i) Indemnitee has significant separate
defenses or counterclaims to assert with respect to any issue which are not
consistent with the position of the Company in such Proceeding, (ii) an actual
or apparent conflict of interest or potential conflict of interest exists
between Indemnitee and the Company, or (iii) if the Company fails to assume the
defense of such Proceeding in a timely manner, all such Indemnitees shall be
entitled to be represented by one separate legal counsel of their choice at the
expense of the Company, provided that where representation of the Indemnitees by
one separate legal counsel may result in a conflict of interest, each of the
Indemnitees shall be entitled to be represented by separate legal counsel of
their choice at the expense of the Company, provided further that any such
separate legal counsel employed by an Indemnitee pursuant to this Section 10(c)
be reasonably acceptable to the Company. In addition, if the Company fails to
comply with any of its obligations under this Agreement or in the event that the
Company or any affiliate or successor of the Company takes any action to declare
this Agreement void or unenforceable, or institutes any Proceeding to deny or to
recover from Indemnitee the benefits intended to be provided to Indemnitee
hereunder, Indemnitee shall have the right to retain counsel of Indemnitee's
choice, at the expense of the Company, to represent Indemnitee in connection
with any such matter.
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11. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to enter
into, and be bound by the terms of, this Agreement to the fullest extent
permitted by law, and the execution, delivery and performance of the
undertakings contemplated by this Agreement have been duly authorized by the
Company.
(b) Enforceability. This Agreement, when executed and delivered by the
Company in accordance with the provisions hereof, shall be a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms to the fullest extent permitted by law, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the enforcement of creditors' rights
generally.
12. Insurance. The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of director and officer liability insurance or
similar insurance with a reputable insurance company providing the Indemnitee
with coverage for losses from wrongful acts in connection with such Indemnitee's
service as a director, and to ensure the Company's performance of its
indemnification obligations under this Agreement. For so long as Indemnitee
shall remain an executive officer or/ director of the Company, and if such
Indemnitee is no longer an executive officer or director of the Company with
respect to any such prior service as an executive officer or director of the
Company, in all policies of director and officer liability insurance, Indemnitee
shall be named as an insured in such a manner as to provide Indemnitee the same
rights and benefits as are accorded to the most favorably insured of the
Company's officers and directors. Notwithstanding the foregoing, the Company
shall have no obligation to obtain or maintain such insurance if the Company
determines in good faith that such insurance is not reasonably available, if the
premium costs for such insurance are disproportionate to the amount of coverage
provided, or if the coverage provided by such insurance is limited by exclusions
so as to provide an insufficient benefit. The Company shall promptly notify
Indemnitee of any good faith determination not to provide or eliminate or reduce
such coverage.
13. Contract Rights Not Exclusive. The rights to payment of Indemnifiable
Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which Indemnitee
may have at any time under applicable law, the Company's Amended and Restated
Charter or Amended and Restated Bylaws, or any other agreement, vote of
stockholders or directors (or a committee of directors), or otherwise, both as
to action in Indemnitee's official capacity and as to action in any other
capacity as a result of Indemnitee's serving as a director of the Company.
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14. Successors. This Agreement shall be (a) binding upon all successors and
assigns of the Company (including any transferee of all or a substantial portion
of the business, stock and/or assets of the Company and any direct or indirect
successor by merger or consolidation or otherwise by operation of law) and (b)
binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate status.
15. Subrogation. In the event of any payment of Indemnifiable Amounts under
this Agreement, the Company shall be subrogated to the extent of such payment to
all of the rights of contribution or recovery of Indemnitee against other
persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.
16. Change in Law. To the extent that a change in Tennessee law (whether by
statute or judicial decision) shall permit broader indemnification or
advancement of expenses than is provided under the terms of the Bylaws and this
Agreement, Indemnitee shall be entitled to such broader indemnification and
advancements, and this Agreement shall be deemed to be amended to such extent.
17. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement, or any clause thereof, shall be
determined by a court of competent jurisdiction to be illegal, invalid or
unenforceable, in whole or in part, such provision or clause shall be limited or
modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
18. Indemnitee as Plaintiff. Except as provided in Section 9(c) of this
Agreement and in the next sentence, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any then current or former director, officer or employee thereof, or
any third party, unless the Board of Directors of the Company has consented to
the initiation of such Proceeding. This Section shall not apply to counterclaims
or affirmative defenses asserted by Indemnitee in any Proceeding brought against
Indemnitee.
19. Modifications and Waiver. Except as provided in Section 16 above with
respect to changes in Tennessee law which broaden the right of Indemnitee to be
indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each 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 of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
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20. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(i) If to Indemnitee, to:
--------------------------
--------------------------
--------------------------
(ii) If to the Company, to:
Xxxxxx & Xxxxx Corporation
0000 X&X Xxxxxxxxx, 0X-00
Xxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
or to such other address as may have been furnished in the same manner by any
party to the others.
21. Governing Law; Consent to Jurisdiction; Service of Process. The
provisions of this Agreement shall be construed and interpreted so as to avoid
the additional tax under Code section 409(a)(1)(B) and otherwise shall be
governed by and construed in accordance with the laws of the State of Tennessee
without regard to its rules of conflict of laws. For the purposes of this
Agreement only, each of the Company and the Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the state
courts of the State of Tennessee and the courts of the United States of America
located in the State of Tennessee (collectively, the "Tennessee Courts") for any
litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any such
litigation in the Tennessee Courts and agrees not to plead or claim in any
Tennessee Court that such litigation brought therein has been brought in an
inconvenient forum. Each of the parties hereto agrees, for the purposes of this
Agreement only (a) to the extent such party is not otherwise subject to service
of process in the State of Tennessee, to appoint and maintain an agent in the
State of Tennessee as such party's agent for acceptance of legal process, and
(b) that service of process may also be made on such party by prepaid certified
mail with a proof of mailing receipt validated by the United States Postal
Service constituting evidence of valid service. Service made pursuant to (a) or
(b) above shall have the same legal force and effect as if served upon such
party personally within the State of Tennessee.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX & XXXXX CORPORATION
By:
------------------------
Name:
Title:
INDEMNITEE
---------------------------
Name:
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