EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "AGREEMENT") is entered into as of the
___ day of __________, 2003, by and between Natural Golf Corporation, an
Illinois corporation (the "COMPANY") and _______________ ("INDEMNITEE").
RECITALS
A. The Company is aware that competent and experienced persons are
increasingly reluctant to serve or continue serving as directors or officers of
companies unless they are protected by comprehensive liability insurance and
adequate indemnification due to the increased exposure to litigation costs and
risks resulting from service to such companies that often bear no relationship
to the compensation of such directors or officers.
B. The statutes and judicial decisions regarding the duties of directors
and officers often fail to provide directors and officers with adequate,
reliable knowledge of the legal risks to which they are exposed or the manner in
which they are expected to execute their fiduciary duties and responsibilities.
C. The Company and the Indemnitee recognize that plaintiffs often seek
damages in such large amounts, and the costs of litigation may be so great
(whether or not the case is meritorious), that the defense and/or settlement of
such litigation can create an extraordinary burden on the personal resources of
directors and officers.
D. The board of directors of the Company has concluded that, to attract
and retain competent and experienced persons to serve as directors and officers
of the Company, it is not only reasonable and prudent but necessary to promote
the best interests of the Company and its stockholders for the Company to
contractually indemnify its directors and certain of its officers in the manner
set forth herein, and to assume for itself liability for expenses and damages in
connection with claims against such directors and officers in connection with
their service to the Company as provided herein.
E. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director and/or officer of the Company, and the
Indemnitee only is willing to serve, or to continue to serve, as a director
and/or officer of the Company if the Indemnitee is furnished the indemnity
provided for herein by the Company.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth below, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the corresponding meanings set forth below.
"CLAIM" means a claim or action asserted by a Person in a Proceeding.
"COMPANY ACTION" means a Proceeding in which a Claim has been brought
by or in the name of the Company to procure a judgment in its favor.
"COVERED ENTITY" means the Company, any subsidiary of the Company or
any other Person for which Indemnitee is or was or may be deemed to be
serving at the request of the Company, or any subsidiary of the Company, as
a director, officer, employee, controlling person, agent or fiduciary.
"DISINTERESTED DIRECTOR" means, with respect to any determination
contemplated by this Agreement, any Person who, as of the time of such
determination, is a member of the Company's board of directors but is not a
party to any Proceeding then pending with respect to any Indemnification
Event.
"ERISA" means Employee Retirement Income Security Act of 1974, as
amended, or any similar Federal statute then in effect.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute then in effect.
"EXPENSES" means any and all direct and indirect fees and costs,
retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating, printing and binding costs, telephone
charges, postage and delivery service fees and all other disbursements or
expenses of any type or nature whatsoever reasonably incurred by Indemnitee
(including, subject to the limitations set forth in SECTION 3(c) below,
reasonable attorneys' fees) in connection with or arising from an
Indemnification Event, including, without limitation: (i) the investigation
or defense of a Claim; (ii) being, or preparing to be, a witness or
otherwise participating, or preparing to participate, in any Proceeding;
(iii) furnishing, or preparing to furnish, documents in response to a
subpoena or otherwise in connection with any Proceeding; (iv) any appeal of
any judgment, outcome or determination in any Proceeding (including,
without limitation, any premium, security for and other costs relating to
any cost bond, supersedeas bond or any other appeal bond or its
equivalent); (v) establishing or enforcing any right to indemnification
under this Agreement (including, without limitation, pursuant to SECTION
2(c) below), Illinois law or otherwise, regardless of whether Indemnitee is
ultimately successful in such action, unless as a part of such action, a
court of competent jurisdiction over such action determines that each of
the material assertions made by Indemnitee as a basis for such action was
not made in good faith or was frivolous; (vi) Indemnitee's defense of any
Proceeding instituted by or in the name of the Company under this Agreement
to enforce or interpret any of the terms of this Agreement (including,
without limitation, costs and expenses incurred with respect to
Indemnitee's counterclaims and cross-claims made in such action); and (vii)
any Federal, state, local or foreign taxes imposed on Indemnitee as a
result of the actual or deemed receipt of any payments under this
Agreement, including all interest, assessments and other charges paid or
payable with respect to such payments.
An "INDEMNIFICATION EVENT" shall be deemed to have occurred if
Indemnitee was or is or becomes, or is threatened to be made, a party to or
witness or other participant in, or was or is or becomes obligated to
furnish or furnishes documents in response to a subpoena or otherwise in
connection with, any Proceeding by reason of the
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fact that Indemnitee is or was or may be deemed a director, officer,
employee, controlling person, agent or fiduciary of any Covered Entity, or
by reason of any action or inaction on the part of Indemnitee while serving
in any such capacity (including, without limitation, rendering any written
statement that is a Required Statement or is made to another officer or
employee of the Covered Entity to support a Required Statement).
"INDEPENDENT LEGAL COUNSEL" means an attorney or firm of attorneys
designated by the Disinterested Directors (or, if there are no
Disinterested Directors, the Company's board of directors) that is
experienced in matters of corporate law and neither presently is, nor in
the thirty-six (36) months prior to such designation has been, retained to
represent: (i) the Company or Indemnitee in any matter material to either
such party, or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder.
"LOSSES" means any and all losses, claims, damages, liabilities,
judgments, fines, penalties, settlement payments, awards and amounts of any
type whatsoever incurred by Indemnitee in connection with or arising from
an Indemnification Event.
"ORGANIZATIONAL DOCUMENTS" means any and all organizational documents,
charters or similar agreements or governing documents, including, without
limitation (i) with respect to a corporation, its articles of incorporation
and bylaws, (ii) with respect to a limited liability company, its operating
agreement, and (iii) with respect to a limited partnership, its partnership
agreement.
"PROCEEDING" means any threatened, pending or completed action, suit,
proceeding, arbitration or alternative dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of a
Covered Entity or otherwise and whether of a civil (including intentional
or unintentional tort claims), criminal, administrative or investigative
nature.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other enterprise or government
or agency or political subdivision thereof.
"REQUIRED STATEMENT" means a written statement of a Person that is
required to be, and is, filed with the SEC regarding the design, adequacy
or evaluation of a Covered Entity's internal controls or the accuracy,
sufficiency or completeness of reports or statements filed by a Covered
Entity with the SEC pursuant to federal law and/or administrative
regulations, including without limitation, the certifications contemplated
by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, or
any rule or regulation promulgated pursuant thereto.
"REVIEWING PARTY" means, with respect to any determination
contemplated by this Agreement, any one of the following: (i) a majority of
the Disinterested Directors, even if such Persons would not constitute a
quorum of the Company's board of directors; (ii) a committee consisting
solely of Disinterested Directors, even if such Persons would not
constitute a quorum of the Company's board of directors, so long as such
committee was designated by a majority of the Disinterested Directors;
(iii) in the absence of any
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Disinterested Directors and upon the written consent of Indemnitee, the
Company's stockholders; (iv) Independent Legal Counsel (in which case, any
determination shall be evidenced by the rendering of a written opinion); or
(v) if Indemnitee is not a director or officer of the Company at the time
of such determination, the Company's board of directors.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar Federal statute then in effect.
2. INDEMNIFICATION.
(a) INDEMNIFICATION OF LOSSES AND EXPENSES. If an Indemnification
Event has occurred, then, subject to SECTION 9 below, the Company shall
indemnify and hold harmless Indemnitee, to the fullest extent permitted by law,
against any and all Losses and Expenses, but only if the Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Company, and, with respect to any criminal
Proceeding, had no reasonable cause to believe Indemnitee's conduct was
unlawful. The termination of any Proceeding by judgment, court order, settlement
or conviction or on plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee (i) did not act in good faith in a
manner which he reasonably believed to be in, or not opposed to, the best
interests of the Company, or (ii) with respect to any criminal Proceeding, had
reasonable cause to believe that Indemnitee's conduct was unlawful.
(b) LIMITATION WITH RESPECT TO COMPANY ACTIONS. Notwithstanding the
foregoing, the Company shall not indemnify and hold harmless Indemnitee with
respect to any Losses (as opposed to Expenses) in connection with or arising
from any Company Action. Furthermore, the Company shall not indemnify and hold
harmless Indemnitee with respect to any Expenses in connection with or arising
from any Company Action as to which the Indemnitee shall have been finally
adjudged to be liable to the Company by a court of competent jurisdiction due to
Indemnitee's willful misconduct of a culpable nature in the performance of the
Indemnitee's duties to the Company, unless, and then only to extent that, any
court in which such Company Action was brought shall determine upon application
that, despite the adjudication of liability, but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to
Expenses for such indemnification as such court shall deem proper.
(c) ADVANCEMENT OF EXPENSES. The Company shall advance Expenses to or
on behalf of Indemnitee as soon as practicable, but in any event not later than
thirty (30) days after written request therefor by Indemnitee which request
shall be accompanied by vouchers, invoices or similar evidence documenting in
reasonable detail the Expenses incurred or to be incurred by Indemnitee. The
Indemnitee hereby undertakes to repay such amounts advanced only if, and to the
extent that, it shall ultimately be determined that Indemnitee is not entitled
to be indemnified by the Company as authorized by this Agreement.
(d) CONTRIBUTION. If, and to the extent, the indemnification of
Indemnitee provided for in SECTION 2(a) above for any reason is held by a court
of competent jurisdiction not to be permissible for liabilities arising under
Federal securities laws or ERISA, then the
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Company, in lieu of indemnifying Indemnitee under this Agreement, shall
contribute to the amount paid or payable by Indemnitee as a result of such
Losses or Expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Covered Entities and all officers, directors
or employees of the Covered Entities other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such Proceeding), on the one
hand, and Indemnitee, on the other hand, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Covered Entities and all officers,
directors or employees of the Covered Entities other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such Proceeding), on
the one hand, and the Indemnitee, on the other hand, in connection with the
action or inaction that resulted in such Losses or Expenses, as well as any
other relevant equitable considerations. The relative fault of the Covered
Entities and all officers, directors or employees of the Covered Entities other
than Indemnitee who are jointly liable with Indemnitee (or would be if joined in
such Proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary, and the degree to which
their conduct is active or passive. No Person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.
3. INDEMNIFICATION PROCEDURES.
(a) NOTICE OF INDEMNIFICATION EVENT. Indemnitee shall give the
Company notice as soon as practicable of any Indemnification Event of which
Indemnitee becomes aware, provided that any failure to so notify the Company
shall not relieve the Company of any of its obligations under this Agreement,
except if, and then only to the extent that, such failure increases the
liability of the Company under this Agreement.
(b) NOTICE TO INSURERS. If, at the time the Company receives notice
of an Indemnification Event pursuant to SECTION 3(a) above, the Company has
liability insurance in effect which may cover such Indemnification Event, the
Company shall give prompt written notice of such Indemnification Event to the
insurers in accordance with the procedures set forth in each of the applicable
policies of insurance. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Indemnification Event in accordance with the
terms of such policies.
(c) SELECTION OF COUNSEL. If the Company shall be obligated hereunder
to pay or advance Expenses or indemnify Indemnitee with respect to any Losses,
the Company shall be entitled to assume the defense of any related Claims, with
counsel selected by the Company. After the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this Agreement for
any fees of counsel subsequently incurred by Indemnitee with respect to the
defense of such Claims; provided that: (i) Indemnitee shall have the right to
employ counsel in connection with any such Claim at Indemnitee's expense; and
(ii) if (A) the employment of counsel by Indemnitee has been previously
authorized by the Company, (B) counsel for Indemnitee shall have provided the
Company with written advice that there is a conflict of interest between the
Company and Indemnitee in the conduct of any such defense, or
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(C) the Company shall not continue to retain such counsel to defend such Claim,
then the fees and expenses of Indemnitee's counsel shall be at the expense of
the Company.
4. DETERMINATION OF RIGHT TO INDEMNIFICATION.
(a) SUCCESSFUL PROCEEDING. To the extent Indemnitee has been
successful, on the merits or otherwise, in defense of any Proceeding referred to
in SECTIONS 2(a) or 2(b), the Company shall indemnify Indemnitee against Losses
and Expenses incurred by him 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 in such Proceeding, the
Company shall indemnify Indemnitee against all Losses and Expenses actually or
reasonably incurred by Indemnitee in connection with each successfully resolved
Claim.
(b) OTHER PROCEEDINGS. In the event that SECTION 4(a) is
inapplicable, the Company shall nevertheless indemnify Indemnitee, unless, but
then only to the extent that, a Reviewing Party chosen pursuant to SECTION 4(c)
determines that Indemnitee has not met the applicable standard of conduct set
forth in SECTIONS 2(a) or 2(b), as applicable, as a condition to such
indemnification.
(c) REVIEWING PARTY DETERMINATION. If, and to the extent, any
applicable law requires the determination that Indemnitee has met the applicable
standard of conduct set forth in SECTIONS 2(a) or 2(b), as applicable, as a
condition to any such indemnification, a Reviewing Party chosen by the Company's
board of directors shall make such determination, subject to the following:
(i) A Reviewing Party so chosen shall act in the utmost good
faith to assure Indemnitee a complete opportunity to present to such
Reviewing Party Indemnitee's case that Indemnitee has met the applicable
standard of conduct.
(ii) Indemnitee shall be deemed to have acted in good faith if
Indemnitee's action is based on the records or books of account of a
Covered Entity, including, without limitation, its financial statements, or
on information supplied to Indemnitee by the officers or employees of a
Covered Entity in the course of their duties, or on the advice of legal
counsel for a Covered Entity or on information or records given, or reports
made, to a Covered Entity by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by a Covered
Entity. In addition, the knowledge and/or actions, or failure to act, of
any director, officer, agent or employee of a Covered Entity shall not be
imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. Whether or not the foregoing
provisions of this SECTION 4(c)(ii) are satisfied, it shall in any event be
presumed that Indemnitee has at all times acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company. Any Person seeking to overcome this presumption
shall have the burden of proof and the burden of persuasion, by clear and
convincing evidence.
(iii) If a Reviewing Party chosen pursuant to this SECTION 4(c)
shall not have made a determination whether Indemnitee is entitled to
indemnification within thirty (30) days after receipt by the Company of the
request therefor, the requisite
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determination of entitlement to indemnification shall be deemed to have
been made and Indemnitee shall be entitled to such indemnification, absent
(A) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not materially
misleading, in connection with the request for indemnification, or (B) a
prohibition of such indemnification under applicable law; provided,
however, that such thirty (30) day period may be extended for a reasonable
time, not to exceed an additional fifteen (15) days, if the Reviewing Party
in good faith requires such additional time for obtaining or evaluating
documentation and/or information relating thereto; and provided, further,
that the foregoing provisions of this SECTION 4(c)(iii) shall not apply if
(I) the determination of entitlement to indemnification is to be made by
the stockholders of the Company, (II), a special meeting of stockholders is
called by the board of directors of the Company for such purpose within
thirty (30) days after the stockholders are chosen as the Reviewing Party,
(III) such meeting is held for such purpose within sixty (60) days after
having been so called, and (IV)such determination is made thereat.
(d) APPEAL TO COURT. Notwithstanding a determination by a Reviewing
Party chosen pursuant to SECTION 2(c) that Indemnitee is not entitled to
indemnification with respect to a specific Claim or Proceeding (an "ADVERSE
DETERMINATION"), Indemnitee shall have the right to apply to the court in which
that Claim or Proceeding is or was pending or any other court of competent
jurisdiction for the purpose of enforcing Indemnitee's right to indemnification
pursuant to this Agreement, provided that Indemnitee shall commence any such
Proceeding seeking to enforce Indemnitee's right to indemnification within one
(1) year following the date upon which Indemnitee is notified in writing by the
Company of the Adverse Determination. In the event of any dispute between the
parties concerning their respective rights and obligations hereunder, the
Company shall have the burden of proving that the Company is not obligated to
make the payment or advance claimed by Indemnitee.
(e) PRESUMPTION OF SUCCESS. The Company acknowledges that a
settlement or other disposition short of final judgment may be deemed successful
for purposes of SECTION 4(a) if it permits a party to avoid expense, delay,
distraction, disruption and uncertainty. In the event that any Proceeding to
which Indemnitee is a party is resolved in any manner other than by adverse
judgment against Indemnitee (including, without limitation, settlement of such
Proceeding with or without payment of money or other consideration) it shall be
presumed that Indemnitee has been successful on the merits or otherwise in such
Proceeding. Anyone seeking to overcome this presumption shall have the burden of
proof and the burden of persuasion, by clear and convincing evidence.
5. ADDITIONAL INDEMNIFICATION RIGHTS; NON-EXCLUSIVITY.
(a) SCOPE. The Company hereby agrees to indemnify Indemnitee to the
fullest extent permitted by law, even if such indemnification is not
specifically authorized by the other provisions of this Agreement or any other
agreement, the Organizational Documents of any Covered Entity or by applicable
law. In the event of any change after the date of this Agreement in any
applicable law, statute or rule which expands the right of an Illinois
corporation to indemnify a member of its board of directors or an officer,
employee, controlling person, agent or fiduciary, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable
law,
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statute or rule which narrows the right of an Illinois corporation to indemnify
a member of its board of directors or an officer, employee, controlling person,
agent or fiduciary, such change, to the extent not otherwise required by such
law, statute or rule to be applied to this Agreement, shall have no effect on
this Agreement or the parties rights and obligations hereunder except as set
forth in SECTION 9(a) hereof.
(b) NON-EXCLUSIVITY. The rights to indemnification, contribution and
advancement of Expenses provided in this Agreement shall not be deemed exclusive
of, but shall be in addition to, any other rights to which Indemnitee may at any
time be entitled under the Organizational Documents of any Covered Entity, any
other agreement, any vote of stockholders or Disinterested Directors, the laws
of the State of Illinois or otherwise. Furthermore, no right or remedy herein
conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion of any right or remedy hereunder or otherwise shall not
prevent the concurrent assertion of any other right or remedy. The rights to
indemnification, contribution and advancement of Expenses provided in this
Agreement shall continue as to Indemnitee for any action Indemnitee took or did
not take while serving in an indemnified capacity even though Indemnitee may
have ceased to serve in such capacity.
6. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
Agreement to make any payment of any amount otherwise indemnifiable hereunder,
or for which advancement is provided hereunder, if and to the extent Indemnitee
has otherwise actually received such payment, whether pursuant to any insurance
policy, the Organizational Documents of any Covered Entity or otherwise.
7. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge
that, in certain instances, Federal law or public policy may override applicable
state law and prohibit the Company from indemnifying its directors and officers
under this Agreement or otherwise. For example, the Company and Indemnitee
acknowledge that the SEC has taken the position that indemnification is not
permissible for liabilities arising under certain Federal securities laws, and
Federal legislation prohibits indemnification for certain ERISA violations.
Indemnitee understands and acknowledges that the Company has undertaken, or may
be required in the future to undertake, with the SEC to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company's right under public policy to indemnify Indemnitee, and any right to
indemnification hereunder shall be subject to, and conditioned upon, any such
required court determination.
8. LIABILITY INSURANCE. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, controlling persons,
agents or fiduciaries of any Covered Entity, Indemnitee shall be covered by such
policy or policies in such a manner as to provide Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Covered Entity's
directors, if Indemnitee is a director of such Covered Entity, or of the Covered
Entity's officers, if Indemnitee is not a director of such Covered Entity but is
an officer of such Covered Entity, or of the Covered Entity's key employees,
controlling persons, agents or fiduciaries, if Indemnitee is not an officer or
director but is a key employee, controlling person, agent or fiduciary of such
Covered Entity, as the case may be. The Company shall advise Indemnitee as to
the general terms of, and the amounts of coverage provide by, any liability
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insurance policy described in this SECTION 8 and shall promptly notify
Indemnitee if, at any time, any such insurance policy will no longer be
maintained or the amount of coverage under any such insurance policy will be
decreased.
9. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee:
(a) against any Losses or Expenses, or advance Expenses to
Indemnitee, with respect to Claims initiated or brought voluntarily by
Indemnitee, and not by way of defense, except (i) Claims to establish or
enforce a right to indemnification, contribution or advancement with
respect to an Indemnification Event, whether under this Agreement, any
other agreement or insurance policy, the Company's Organizational Documents
of any Covered Entity, the laws of the State of Illinois or otherwise, or
(ii) if the Company's board of directors has approved specifically the
initiation or bringing of such Claim;
(b) against any Losses or Expenses, or advance Expenses to
Indemnitee, with respect to Claims arising (i) with respect to an
accounting of profits made from the purchase and sale (or sale and
purchase) by Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act or (ii) pursuant to Sections 304 or 306
of the Xxxxxxxx-Xxxxx Act of 2002, as amended, or any rule or regulation
promulgated pursuant thereto; or
(c) if, and to the extent, that a court of competent jurisdiction
renders a final, unappealable decision that such indemnification is not
lawful.
10. MISCELLANEOUS.
(a) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
(b) BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns (including with respect to
the Company, any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the
Company) and with respect to Indemnitee, his or her spouse, heirs, and personal
and legal representatives. The Company shall require and cause any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the business
and/or assets of the Company, 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 or assignment had taken place. This Agreement
shall continue in effect with respect to Claims relating to Indemnification
Events regardless of whether Indemnitee continues to serve as a director,
officer, employee, controlling person, agent or fiduciary of any Covered Entity.
(c) NOTICE. All notices and other communications required or
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given (a) five (5) days after deposit with
the U.S. Postal Service or other applicable postal service, if delivered by
first class mail, postage prepaid, (b) upon delivery, if delivered by hand,
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(c) one (1) business day after the business day of deposit with Federal Express
or similar, nationally recognized overnight courier, freight prepaid, or (d) one
(1) business day after the business day of delivery by confirmed facsimile
transmission, if deliverable by facsimile transmission, with copy by other means
permitted hereunder, and addressed, if to Indemnitee, to the Indemnitee's
address or facsimile number (as applicable) as set forth beneath the
Indemnitee's signature to this Agreement, or, if to the Company, at the address
or facsimile number (as applicable) of its principal corporate offices
(attention: Secretary), or at such other address or facsimile number (as
applicable) as such party may designate to the other parties hereto.
(d) CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction and venue of the courts of the State of
Illinois for all purposes in connection with any Proceeding which arises out of
or relates to this Agreement and agree that any Proceeding instituted under this
Agreement shall be commenced, prosecuted and continued only in the courts of the
State of Illinois.
(e) SEVERABILITY. The provisions of this Agreement shall be severable
in the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable that is not itself
invalid, void or unenforceable) shall be construed so as to give effect to the
extent manifested by the provision held invalid, illegal or unenforceable.
(f) CHOICE OF LAW. This Agreement shall be governed by and its
provisions shall be construed and enforced in accordance with, the laws of the
State of Illinois, without regard to the conflict of laws principles thereof.
(g) SUBROGATION. In the event of payment under this Agreement, the
Company 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.
(h) AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless it is in
a writing signed by the parties to be bound thereby. Notice of same shall be
provided to all 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.
(i) NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in
this Agreement shall be construed as giving Indemnitee any right to be retained
or continue in the employ or service of any Covered Entity.
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10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
NATURAL GOLF CORPORATION,
an Illinois corporation
By:
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Name:
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Title:
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Address:
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Fax No.:
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INDEMNITEE:
Name:
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Address:
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Fax No.:
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