INDEMNITY AGREEMENT
Exhibit 99.1
This Indemnity Agreement (this “Agreement”) dated the
_____
day of
_____,
_____, by
and between Xxxxx Instruments Corp., a Delaware corporation (the “Company”), and , an individual
(“Indemnitee”).
RECITALS
A. Competent and experienced persons are reluctant to serve or to continue to serve as directors
and officers of corporations or in other capacities unless they are provided with adequate
protection through insurance or indemnification (or both) against claims against them arising out
of their service and activities on behalf of the corporation.
B. The current uncertainties relating to the availability of adequate insurance have increased the
difficulty for corporations of attracting and retaining competent and experienced persons to serve
in such capacity.
C. The Board of Directors of the Company (the “Board of Directors”) has determined that the
continuation of present trends in litigation will make it more difficult to attract and retain
competent and experienced persons to serve as directors and officers of the Company, that this
situation is detrimental to the best interests of the Company’s stockholders and that the Company
should act to assure such persons that there will be increased certainty of adequate protection in
the future.
D. As a supplement to and in the furtherance of the Company’s Certificate of Incorporation, as may
be amended (the “Certificate”), and Bylaws, as may be amended (the “Bylaws”), it is reasonable,
prudent, desirable and necessary for the Company contractually to obligate itself to indemnify, and
to pay in advance expenses on behalf of, officers and directors to the fullest extent permitted by
law so that they will serve or continue to serve the Company free from concern that they will not
be so indemnified and that their expenses will not be so paid in advance.
E. This Agreement is not a substitute for, nor does it diminish or abrogate any rights of
Indemnitee under, the Certificate and the Bylaws or any resolutions adopted pursuant thereto
(including any contractual rights of Indemnitee that may exist).
F. Indemnitee is a director, officer and/or key employee of the Company, and his or her willingness
to continue to serve in such capacity is predicated, in substantial part, upon the Company’s
willingness to indemnify him or her to the fullest extent permitted by the laws of the State of
Delaware and upon the other undertakings set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Company
and Indemnitee hereby agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1. Capitalized terms used but not otherwise defined in this Agreement have the meanings set
forth below:
(a) “Change in Control” shall be deemed to occur upon the earliest to occur after the date of
this Agreement of any of the following events:
(i) Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined voting power of the Company’s then
outstanding securities;
(ii) Change in Board Composition. During any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals who at the beginning of
such period constitute the Company’s board of directors, and any new directors (other than a
director designated by a person who has entered into an agreement with the Company to effect a
transaction described in paragraphs (i), (iii) or (iv)) whose election by the board of directors or
nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved (collectively, the “Incumbent
Directors”), cease for any reason to constitute at least a majority of the members of the Company’s
board of directors;
(iii) Corporate Transactions. The effective date of a merger or consolidation of the Company
with any other entity, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior to such merger or consolidation continuing
to represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of the voting
securities of the surviving entity outstanding immediately after such merger or consolidation and
with the power to elect at least a majority of the board of directors or other governing body of
such surviving entity;
(iv) Liquidation. The approval by the stockholders of the Company of a complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all or substantially
all of the Company’s assets; and
(v) Other Events. Any other event of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities Exchange Act of 1934, as amended,
whether or not the Company is then subject to such reporting requirement.
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For purposes of this definition of “Change in Control,” the following terms shall have the
following meanings:
“Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended; provided, however, that “Person” shall exclude (i) the Company,
(ii) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company.
“Beneficial Owner” shall have the meaning given to such term in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended; provided, however, that “Beneficial Owner” shall
exclude any Person otherwise becoming a Beneficial Owner by reason of (i) the stockholders of the
Company approving a merger of the Company with another entity or (ii) the Company’s board of
directors approving a sale of securities by the Company to such Person.
“Corporate Status” means the status of a person who is or was a director, officer, employee,
partner, member, manager, trustee, fiduciary or agent of the Company or of any other Enterprise
which such person is or was serving at the request of the Company. In addition to any service at
the actual request of the Company, Indemnitee will be deemed, for purposes of this Agreement, to be
serving or to have served at the request of the Company as a director, officer, employee, partner,
member, manager, trustee, fiduciary or agent of another Enterprise if Indemnitee is or was serving
as a director, officer, employee, partner, member, manager, fiduciary, trustee or agent of such
Enterprise and (i) such Enterprise is or at the time of such service was a Controlled Affiliate,
(ii) such Enterprise is or at the time of such service was an employee benefit plan (or related
trust) sponsored on maintained by the Company or a Controlled Affiliate or (iii) the Company or a
Controlled Affiliate directly or indirectly caused Indemnitee to be nominated, elected, appointed,
designated, employed, engaged or selected to serve in such capacity.
“Controlled Affiliate” means any corporation, limited liability company, partnership, joint
venture, trust or other Enterprise, whether or not for profit, that is directly or indirectly
controlled by the Company. For purposes of this definition, the term “control” means the
possession, directly or indirectly, of the power to direct, or cause the direction of, the
management or policies of an Enterprise, whether through the ownership of voting securities,
through other voting rights, by contract or otherwise; provided, however, that direct or indirect
beneficial ownership of capital stock or other interests in an Enterprise entitling the holder to
cast thirty percent (30%) or more of the total number of votes generally entitled to be cast in the
election of directors (or persons performing comparable functions) of such Enterprise will be
deemed to constitute “control” for purposes of this definition.
“Disinterested Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by Indemnitee.
“Enterprise” means the Company and any other corporation, partnership, limited liability
company, joint venture, employee benefit plan, trust or other entity or other enterprise of which
Indemnitee is or was serving at the request of the Company in a Corporate Status.
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“Expenses” means all attorney’s fees, disbursements and retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, fax transmission charges, secretarial services, delivery service
fees and all other disbursements or expenses paid or incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in,
or otherwise participating in, a Proceeding, or in connection with seeking indemnification under
this Agreement. Expenses will also include Expenses paid or incurred in connection with any appeal
resulting from any Proceeding, including the premium, security for and other costs relating to any
appeal bond or its equivalent. Expenses, however, will not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee.
“Independent Counsel” means an attorney or firm of attorneys that is experienced in matters of
corporation law and neither currently is, nor in the past five (5) years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to either such party (other than
with respect to matters concerning the Indemnitee under this Agreement and/or the indemnification
provisions of the Certificate or Bylaws, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent Counsel” does not include any
person who, under the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
“Losses” means any loss, liability, judgments, damages, amounts paid in settlement, fines
(including excise taxes and penalties assessed with respect to employee benefit plans), penalties
(whether civil, criminal or otherwise) and all interest, assessments and other charges paid or
payable in connection with or in respect of any of the foregoing.
“Proceeding” means any threatened, pending or completed action, suit, claim, demand,
arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or any other actual, threatened or completed proceeding, whether formal or informal, including any
and all appeals, whether brought by or in the right of the Company or otherwise, whether civil,
criminal, administrative or investigative, whether formal or informal, and in each case whether or
not commenced prior to the date of this Agreement, in which Indemnitee was, is or will be involved
as a party or otherwise, by reason of or relating to Indemnitee’s Corporate Status and by reason of
or relating to either (i) any action or alleged action taken by Indemnitee (or failure or alleged
failure to act) or of any action or alleged action (or failure or alleged failure to act) on
Indemnitee’s part, while acting in his or her Corporate Status or (ii) the fact that Indemnitee is
or was serving at the request of the Company as director, officer, employee, partner, member,
manager, trustee, fiduciary or agent of another Enterprise, in each case whether or not serving in
such capacity at the time any Loss or Expense is paid or incurred for which indemnification or
advancement of Expenses can be provided under this Agreement, except one initiated by Indemnitee to
enforce his or her rights under this Agreement. For purposes of this definition, the term
“threatened” will be deemed to include Indemnitee’s good faith belief that a claim or other
assertion may lead to institution of a Proceeding.
References to “serving at the request of the Company” include any service as a director,
officer, employee or agent of the Company which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed
to be in the best interests of the participants and beneficiaries of an
employee benefit plan will be deemed to have acted in a manner “not opposed to the best
interests of the Company” as referred to under applicable law or in this Agreement.
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ARTICLE 2
SERVICES TO THE COMPANY
2.1. Services to the Company. Indemnitee agrees to serve as [a director][an officer] of the
Company. Indemnitee may at any time and for any reason resign from such position (subject to any
other contractual obligation or any obligation imposed by operation of law), in which event the
Company will have no obligation to continue to allow Indemnitee to serve in such position either
pursuant to this Agreement or otherwise. This Agreement will not be construed as giving Indemnitee
any right to be retained in the employ of the Company (or any other Enterprise).
ARTICLE 3
INDEMNIFICATION
3.1. Company Indemnification. Except as otherwise provided in this Article 3, if
Indemnitee was, is or becomes a party to, or was or is threatened to be made a party to, or was or
is otherwise involved in, any Proceeding, the Company will indemnify and hold harmless Indemnitee
to the fullest extent permitted by the Certificate, Bylaws and applicable law, as the same exists
or may hereafter be amended, interpreted or replaced (but in the case of any such amendment,
interpretation or replacement, only to the extent that such amendment, interpretation or
replacement permits the Company to provide broader indemnification rights than were permitted prior
thereto), against any and all Expenses and Losses, and any federal, state, local or foreign taxes
imposed as a result of the actual or deemed receipt of any payments under this Agreement, that are
paid or incurred by Indemnitee in connection with such Proceeding. For purposes of this Agreement,
the meaning of the phrase “to the fullest extent permitted by law” will include to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law (“DGCL”) or any section
that replaces or succeeds Section 145 of the DGCL with respect to such matters.
3.2. Mandatory Indemnification if Indemnitee is Wholly or Partly Successful. Notwithstanding
any other provision of this Agreement (other than Section 6.9), to the extent that Indemnitee has
been successful, on the merits or otherwise, in defense of any Proceeding or any part thereof, the
Company will indemnify Indemnitee against all Expenses that are paid or incurred by Indemnitee 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 fewer than all claims, issues or matters in such
Proceeding, the Company will indemnify and hold harmless Indemnitee against all Expenses paid or
incurred by Indemnitee in connection with each successfully resolved claim, issue or matter on
which Indemnitee was successful. For purposes of this Section 3.2, the termination of any
Proceeding, or any claim, issue or matter in such Proceeding, by dismissal, settlement or a plea of
nolo contendere with or without prejudice will be deemed to be a successful result as to such
Proceeding, claim, issue or matter.
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3.3. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness in
any Proceeding to which Indemnitee is not a party, the Company will indemnify Indemnitee against
all Expenses paid or incurred by Indemnitee on his or her behalf in connection therewith.
3.4. Exclusions. Notwithstanding any other provision of this Agreement, the Company will not
be obligated under this Agreement to provide indemnification in connection with the following:
(a) Any Proceeding (or part of any Proceeding) initiated or brought voluntarily by Indemnitee
against the Company or its directors, officers, employees or other indemnities, unless the Board of
Directors has authorized or consented to the initiation of the Proceeding (or such part of any
Proceeding); provided, however, that nothing in this Section 3.4(a) shall limit the right
of Indemnitee to be indemnified under Section 8.4.
(b) For 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
any similar successor statute, provided that the foregoing shall not relieve the Company of its
obligations to provide for an Expense Advance in accordance with Section 4.1 unless the
party making the determination of entitlement to indemnification pursuant to Article 6 of
this Agreement reasonably determines that Indemnitee clearly violated Section 16(b) and must
disgorge the profits to the corporation. Notwithstanding anything to the contrary stated or implied
in this Section 3.4(b), indemnification pursuant to this Agreement relating to any
Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange
Act or similar provisions of any federal, state or local laws shall not be prohibited if Indemnitee
ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is
permitted under Section 16(b) of the Exchange Act or similar provisions of any federal, state or
local laws.
ARTICLE 4
ADVANCEMENT OF EXPENSES
4.1. Expense Advances. Except as set forth in Section 4.2, the Company will, if
requested by Indemnitee, advance, to the fullest extent permitted by law, to Indemnitee
(hereinafter an “Expense Advance”) any and all Expenses paid or incurred by Indemnitee in
connection with any Proceeding (whether prior to or after its final disposition). Indemnitee’s
right to each Expense Advance will not be subject to the satisfaction of any standard of conduct
and will be made without regard to Indemnitee’s ultimate entitlement to indemnification under the
other provisions of this Agreement, or under provisions of the Certificate or Bylaws or otherwise.
Each Expense Advance will be unsecured and interest free and will be made by the Company without
regard to Indemnitee’s ability to repay the Expense Advance. The Indemnitee shall qualify for
Expense Advances upon the execution and delivery to the Company of this Agreement, which shall
constitute an undertaking providing that the Indemnitee undertakes to the fullest extent permitted
by law, by or on behalf of Indemnitee, to repay such Expense
Advance if it is ultimately determined, by final decision by a court or arbitrator, as
applicable, from which there is no further right to appeal, that Indemnitee is not entitled to be
indemnified for such Expenses under the Certificate, Bylaws, the DGCL, this Agreement or otherwise.
No other form of undertaking shall be required other than the execution of this Agreement. An
Expense eligible for an Expense Advance will include any and all reasonable Expenses incurred
pursuing an action to enforce the right of advancement provided for in this Article 4, including
Expenses incurred preparing and forwarding statements to the Company to support the Expense
Advances claimed.
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4.2. Exclusions. Indemnitee will not be entitled to any Expense Advance in connection with
any of the matters for which indemnity is excluded pursuant to Section 3.4.
4.3. Timing. An Expense Advance pursuant to Section 4.1 will be made within five
business days after the receipt by the Company of a written statement or statements from Indemnitee
requesting such Expense Advance (which statement or statements will include, if requested by the
Company, reasonable detail underlying the Expenses for which the Expense Advance is requested),
whether such request is made prior to or after final disposition of such Proceeding.
ARTICLE 5
CONTRIBUTION IN THE EVENT OF JOINT LIABILITY
5.1. Contribution by Company. To the fullest extent permitted by law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company,
in lieu of indemnifying Indemnitee, will contribute to the amount of Expenses and Losses incurred
or paid by Indemnitee in connection with any Proceeding in proportion to the relative benefits
received by the Company and all officers, directors and employees of the Company 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, from the transaction from which such Proceeding
arose; provided, however, that the proportion determined on the basis of relative benefit may, to
the extent necessary to conform to law, be further adjusted by reference to the relative fault of
the Company and all officers, directors and employees of the Company 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, in connection with the events that resulted in such Expenses and
Losses, as well as any other equitable considerations which applicable law may require to be
considered. The relative fault of the Company and all officers, directors and employees of the
Company 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, will 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 was active or passive.
5.2. Indemnification for Contribution Claims by Others. To the fullest extent permitted by
law, the Company will fully indemnify and hold Indemnitee harmless from any claims of contribution
which may be brought by other officers, directors or employees of the
Company who may be jointly liable with Indemnitee for any Loss or Expense arising from a
Proceeding.
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ARTICLE 6
PROCEDURES AND PRESUMPTIONS FOR THE DETERMINATION OF
ENTITLEMENT TO INDEMNIFICATION
6.1. Notification of Claims; Request for Indemnification. Indemnitee agrees to notify
promptly the Company in writing of any claim made against Indemnitee for which indemnification will
or could be sought under this Agreement; provided, however, that a delay in giving such notice will
not deprive Indemnitee of any right to be indemnified under this Agreement unless, and then only to
the extent that, the Company did not otherwise learn of the Proceeding and such delay is materially
prejudicial to the Company’s ability to defend such Proceeding; and, provided, further, that notice
will be deemed to have been given without any action on the part of Indemnitee in the event the
Company is a party to the same Proceeding. The omission to notify the Company will not relieve the
Company from any liability for indemnification which it may have to Indemnitee otherwise than under
this Agreement. Indemnitee may deliver to the Company a written request to have the Company
indemnify and hold harmless Indemnitee in accordance with this Agreement. Subject to Section
6.9, such request may be delivered from time to time and at such time(s) as Indemnitee deems
appropriate in his or her sole discretion. Following such a written request for indemnification,
Indemnitee’s entitlement to indemnification shall be determined according to Section 6.2.
The Secretary of the Company will, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnitee has requested indemnification. The Company
will be entitled to participate in any Proceeding at its own expense.
6.2. Determination of Right to Indemnification. Upon written request by Indemnitee for
indemnification pursuant to Section 6.1 hereof with respect to any Proceeding, a
determination, if, but only if, required by applicable law, with respect to Indemnitee’s
entitlement thereto will be made by one of the following, at the election of Indemnitee: (1) so
long as there are Disinterested Directors with respect to such Proceeding, a majority vote of the
Disinterested Directors, even though less than a quorum of the Board of Directors, (2) so long as
there are Disinterested Directors with respect to such Proceeding, a committee of such
Disinterested Directors designated by a majority vote of such Disinterested Directors, even though
less than a quorum of the Board of Directors or (3) Independent Counsel in a written opinion
delivered to the Board of Directors, a copy of which will also be delivered to Indemnitee. The
election by Indemnitee to use a particular person, persons or entity to make such determination is
to be included in the written request for indemnification submitted by Indemnitee (and if no
election is made in the request it will be assumed that Indemnitee has elected the Independent
Counsel to make such determination). The person, persons or entity chosen to make a determination
under this Agreement of the Indemnitee’s entitlement to indemnification will act reasonably and in
good faith in making such determination. Nothing in this Agreement shall require any determination
of entitlement to indemnification to be made prior to the final disposition of any Proceeding.
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6.3. Selection of Independent Counsel. If the determination of entitlement to indemnification
pursuant to Section 6.2 will be made by an Independent Counsel, the Independent Counsel
will be selected as provided in this Section 6.3. The Independent Counsel will be selected
by Indemnitee (unless Indemnitee requests that such selection be made by the Board of Directors, in
which event the immediately following sentence will apply) and Indemnitee will give written notice
to the Company advising it of the identity of the Independent Counsel so selected. If the
Independent Counsel is selected by the Board of Directors, the Company will give written notice to
Indemnitee advising him or her of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within ten days after such written
notice of selection is given, deliver to the Company or to Indemnitee, as the case may be, a
written objection to such selection; provided, however, that such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in this Agreement, and the objection will set forth with particularity the
factual basis of such assertion. Absent a proper and timely objection, the person so selected will
act as Independent Counsel. If a written objection is made and substantiated, the Independent
Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn
or a court has determined that such objection is without merit. If, within 30 days after
submission by Indemnitee of a written request for indemnification pursuant to Section 6.1,
no Independent Counsel is selected, or an Independent Counsel for which an objection thereto has
been properly made remains unresolved, either the Company or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent jurisdiction for resolution of any
objection which has been made by the Company or Indemnitee to the other’s selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by
such other person as the court may designate, and the person with respect to whom all objections
are so resolved or the person so appointed will act as Independent Counsel under Section
6.2. The Company will pay any and all fees and expenses incurred by such Independent Counsel in
connection with acting pursuant to Section 6.2 hereof, and the Company will pay all fees
and expenses incident to the procedures of this Section 6.3, regardless of the manner in
which such Independent Counsel was selected or appointed.
6.4. Burden of Proof. In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such determination will presume
that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome
this presumption will have the burden of proof and the burden of persuasion, by clear and
convincing evidence. In making a determination with respect to entitlement to indemnification
hereunder which under this Agreement, the Certificate, Bylaws or applicable law requires a
determination of Indemnitee’s good faith and/or whether Indemnitee acted in a manner which he or
she reasonably believed to be in or not opposed to the best interests of the Company, the person,
persons or entity making such determination will presume that Indemnitee has at all times acted in
good faith and in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Company. Anyone seeking to overcome this presumption will have the burden of proof
and the burden of persuasion, by clear and convincing evidence. Indemnitee will be deemed to have
acted in good faith if Indemnitee’s action with respect to a particular Enterprise is based on the
records or books of account of such Enterprise, including financial statements, or on information
supplied to Indemnitee by the officers of such Enterprise in the course of their duties, or on the
advice of legal counsel for such Enterprise or on
information or records given or reports made to such Enterprise by an independent certified
public accountant or by an appraiser or other expert selected by such Enterprise; provided, however
this sentence will not be deemed to limit in any way the other circumstances in which Indemnitee
may be deemed to have met such standard of conduct. In addition, the knowledge and/or actions, or
failure to act, of any other director, officer, agent or employee of such Enterprise will not be
imputed to Indemnitee for purposes of determining the right to indemnification under this
Agreement.
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6.5. No Presumption in Absence of a Determination or As Result of an Adverse Determination;
Presumption Regarding Success. Neither the failure of any person, persons or entity chosen to make
a determination as to whether Indemnitee has met any particular standard of conduct or had any
particular belief to make such determination, nor an actual determination by such person, persons
or entity that Indemnitee has not met such standard of conduct or did not have such belief, prior
to or after the commencement of legal proceedings by Indemnitee to secure a judicial determination
that Indemnitee should be indemnified under this Agreement under applicable law, will be a defense
to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard
of conduct or did not have any particular belief. In addition, the termination of any Proceeding by
judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea
of nolo contendere, or its equivalent, will not create a presumption that Indemnitee did not meet
any particular standard of conduct or have any particular belief or that a court has determined
that indemnification is not permitted by this Agreement or applicable law. In the event that any
Proceeding to which Indemnitee is a party is resolved in any manner other than by final adverse
judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) against
Indemnitee (including, without limitation, settlement of such Proceeding with or without payment of
money or other consideration) it will be presumed that Indemnitee has been successful on the merits
or otherwise in such Proceeding. Anyone seeking to overcome this presumption will have the burden
of proof and the burden of persuasion, by clear and convincing evidence.
6.6. Timing of Determination. The Company will use its reasonable best efforts to cause any
determination required to be made pursuant to Section 6.2 to be made as promptly as
practicable after Indemnitee has submitted a written request for indemnification pursuant to
Section 6.1. If the person, persons or entity chosen to make a determination does not make
such determination within 30 days after the later of the date (a) the Company receives Indemnitee’s
request for indemnification pursuant to Section 6.1 and (b) on which an Independent Counsel
is selected pursuant to Section 6.3, if applicable (and all objections to such person, if
any, have been resolved), the requisite determination of entitlement to indemnification will be
deemed to have been made and Indemnitee will be entitled to such indemnification, so long as (i)
Indemnitee has fulfilled his or her obligations pursuant to Section 6.8 and (ii) such
indemnification is not prohibited under applicable law; provided, however, that such 30 day period
may be extended for a reasonable time, not to exceed an additional 15 days, if the person, persons
or entity making the determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining of or evaluating of documentation and/or
information relating thereto.
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6.7. Timing of Payments. All payments of Expenses, including any Expense Advance, and other
amounts by the Company to the Indemnitee pursuant to this Agreement will
be made as soon as practicable after a written request or demand therefor by Indemnitee is
presented to the Company, but in no event later than 10 days after (i) such demand is presented or
(ii) such later date as a determination of entitlement to indemnification is made in accordance
with Section 6.6, if applicable; provided, however, that an Expense Advance will be made
within the time provided in Section 4.3 hereof. Interest shall be paid by the Company to
Indemnitee at the legal rate under Delaware law for amounts which the Company indemnifies or is
obliged to indemnify for the period commencing with the date on which Indemnitee requests
indemnification, contribution, reimbursement or advancement of any Expenses and ending with the
date on which such payment is made to Indemnitee by the Company.
6.8. Cooperation. Indemnitee will cooperate with the person, persons or entity making a
determination with respect to Indemnitee’s entitlement to indemnification, including providing to
such person, persons or entity, upon reasonable advance request, any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. Any Expenses incurred by Indemnitee in
so cooperating with the person, persons or entity making such determination will be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and
the Company will indemnify Indemnitee therefor and will hold Indemnitee harmless therefrom.
6.9. Time for Submission of Request. Indemnitee will be required to submit any request for
Indemnification pursuant to this Article 6 within a reasonable time, not to exceed two
years, after any judgment, order, settlement, dismissal, arbitration award, conviction, acceptance
of a plea of nolo contendere (or its equivalent) or other full or partial final determination or
disposition of the Proceeding (with the latest date of the occurrence of any such event to be
considered the commencement of the two year period).
6.10. Trust Deposit on a Change in Control. In the event of a Change in Control, the Company
shall, upon written request by Indemnitee, create a trust for the benefit of the Indemnitee and
from time to time upon written request of Indemnitee shall fund the trust in an amount sufficient
to satisfy any and all Expenses reasonably anticipated at the time of each such request to be
incurred in connection with investigating, preparing for, participating in, and/or defending any
Proceeding relating to an event giving rise to indemnification hereunder. The amount or amounts to
be deposited in the trust pursuant to the foregoing funding obligation shall be determined by the
Independent Counsel. The terms of the trust shall provide that (i) the trust shall not be revoked
or the principal thereof invaded without the written consent of the Indemnitee, (ii) the trustee
shall advance, within thirty (30) days of a request by the Indemnitee, any and all Expenses to the
Indemnitee (and the Indemnitee hereby agrees to reimburse the trust under the same circumstances
for which the Indemnitee would be required to reimburse the Company under Section 4.1) of this
Agreement), (iii) the trust shall continue to be funded by the Company in accordance with the
funding obligation set forth above, (iv) the trustee shall promptly pay to the Indemnitee all
amounts for which the Indemnitee shall be entitled to indemnification pursuant to this Agreement
and (v) all unexpended funds in the trust shall revert to the Company upon a final determination by
the Independent Counsel or a court of competent jurisdiction, as the case may be, that the
Indemnitee has been fully indemnified under the terms of this Agreement. The trustee shall be
chosen by the Indemnitee. Nothing in this Section 6.10 shall relieve the Company of any of
its obligations under this Agreement. All income earned on
the assets held in the trust shall be reported as income by the Company for federal, state,
local and foreign tax purposes. The Company shall pay all costs of establishing and maintaining
the trust and shall indemnify the trustee against any and all expenses (including attorneys’ fees),
claims, liabilities, loss and damages arising out of or relating to this Agreement or the
establishment and maintenance of the trust.
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ARTICLE 7
LIABILITY INSURANCE
7.1. Company Insurance. Subject to Section 7.3, for the duration of Indemnitee’s
service as a director and/or officer of the Company, and thereafter for so long as Indemnitee shall
be subject to any pending or possible Proceeding, the Company shall use commercially reasonable
efforts (taking into account the scope and amount of coverage available relative to the cost
thereof) to cause to be maintained in effect policies of directors’ and officers’ liability
insurance providing coverage for directors and/or officers of the Company that is at least
substantially comparable in scope and amount to that provided by the Company’s current policies of
directors’ and officers’ liability insurance. The minimum AM Best rating for the insurance carriers
of such insurance carrier shall be not less than A- VI. At the Indemnitee’s request (provided that
Indemnitee is a director of the Company), the Company shall arrange an annual review of the
directors’ and officers’ liability insurance coverage by an independent insurance adviser, with all
fees and charges arising from such review to be met by the Company. If the Indemnitee is a
director of the Company, the Company shall provide Indemnitee with a copy of all directors’ and
officers’ liability insurance applications, binders, policies, declarations, endorsements and other
related materials, and shall provide Indemnitee with a reasonable opportunity to review and comment
on the same. Without limiting the generality or effect of the requirement to use commercially
reasonable efforts to obtain insurance and give directors and chance to review the proposal, the
Company shall not discontinue or significantly reduce the scope or amount of coverage from one
policy period to the next (i) without the prior approval thereof by a majority vote of the
Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such
discontinuation or significant reduction in the scope or amount of coverage is proposed there are
no Incumbent Directors, without the prior written consent of Indemnitee (which consent shall not be
unreasonably withheld or delayed).
7.2. Notices to Insurers. If, at the time of receipt by the Company of a notice from any
source of a Proceeding as to which Indemnitee is a party or participant, the Company will give
prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the
respective policies, and the Company will provide Indemnitee with a copy of such notice and copies
of all subsequent correspondence between the Company and such insurers related thereto. The Company
will thereafter take all necessary or desirable actions to cause such insurers to pay, on behalf of
Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such
policies.
7.3. Insurance Not Required. Notwithstanding Section 7.1, the Company will have no
obligation to obtain or maintain the insurance contemplated by Section 7.1 if the Board of
Directors determines in good faith that such insurance is not reasonably available, if the premium
costs for such insurance are disproportionately high compared 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 will promptly notify Indemnitee of any such
determination not to provide insurance coverage. Notwithstanding the foregoing, in the event of a
Change in Control, the Company shall maintain in force any and all insurance policies then
maintained by the Company in providing insurance—directors’ and officers’ liability, fiduciary,
employment practices or otherwise—in respect of Indemnitee, for a period of six years thereafter,
which policies shall be placed by the applicable broker who initially placed each respective policy
then in place at the time of such Change in Control.
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ARTICLE 8
REMEDIES OF INDEMNITEE
8.1. Action by Indemnitee. In the event that (i) a determination is made pursuant to
Article 6 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) an Expense Advance is not timely made pursuant to Section 4.3 of this
Agreement, (iii) no determination of entitlement to indemnification is made within the applicable
time periods specified in Section 6.6 or (iv) payment of indemnified amounts is not made
within the applicable time periods specified in Section 6.7, Indemnitee will be entitled to
an adjudication in an appropriate court of the State of Delaware, or in any other court of
competent jurisdiction, of his or her entitlement to such indemnification or payment of an Expense
Advance. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. The provisions of Delaware law (without regard to its conflict of laws
rules) will apply to any such arbitration. The Company will not oppose Indemnitee’s right to seek
any such adjudication or award in arbitration.
8.2. De Novo Review if Prior Adverse Determination. In the event that a determination is made
pursuant to Article 6 that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Article 8 will be conducted in all
respects as a de novo trial or arbitration, as applicable, on the merits and Indemnitee will not be
prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration
commenced pursuant to this Article 8, Indemnitee will be presumed to be entitled to
indemnification under this Agreement, the Company will have the burden of proving Indemnitee is not
entitled to indemnification and the Company may not refer to or introduce evidence of any
determination pursuant to Article 6 adverse to Indemnitee for any purpose. If Indemnitee
commences a judicial proceeding or arbitration pursuant to this Article 8, Indemnitee will
not be required to reimburse the Company for any Expense Advance made pursuant to Article 4
until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as
to which all rights of appeal have been exhausted or lapsed).
8.3. Company Bound by Favorable Determination by Reviewing Party. If a determination is made
that Indemnitee is entitled to indemnification pursuant to Article 6, the Company will be
bound by such determination in any judicial proceeding or arbitration commenced pursuant to this
Article 8, absent (i) a misstatement by Indemnitee of a material fact or an omission of a
material fact necessary to make Indemnitee’s statements in connection with
the request for indemnification not materially misleading or (ii) a prohibition of such
indemnification under law.
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8.4. Company Bears Expenses if Indemnitee Seeks Adjudication. In the event that Indemnitee,
pursuant to this Article 8, seeks a judicial adjudication or arbitration of his or her
rights under, or to recover damages for breach of, this Agreement, any other agreement for
indemnification, the indemnification or advancement of expenses provisions in the Certificate or
Bylaws, payment of Expenses in advance or contribution hereunder or to recover under any director
and officer liability insurance policies maintained by the Company, the Company will, to the
fullest extent permitted by law, indemnify and hold harmless Indemnitee against any and all
Expenses which are paid or incurred by Indemnitee in connection with such judicial adjudication or
arbitration, regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, payment of Expenses in advance or contribution or insurance recovery. In addition,
if requested by Indemnitee, the Company will (within five days after receipt by the Company of the
written request therefor), pay as an Expense Advance such Expenses, to the fullest extent permitted
by law.
8.5. Company Bound by Provisions of this Agreement. The Company will be precluded from
asserting in any judicial or arbitration proceeding commenced pursuant to this Article 8
that the procedures and presumptions of this Agreement are not valid, binding and enforceable and
will stipulate in any such judicial or arbitration proceeding that the Company is bound by all the
provisions of this Agreement.
ARTICLE 9
NON-EXCLUSIVITY, SUBROGATION; NO DUPLICATIVE PAYMENTS;
MORE FAVORABLE TERMS; INFORMATION SHARING
9.1. Non-Exclusivity. The rights of indemnification and to receive Expense Advances as
provided by this Agreement will not be deemed exclusive of any other rights to which Indemnitee may
at any time be entitled under applicable law, the Certificate, the Bylaws, any agreement, a vote of
stockholders, a resolution of the directors or otherwise. To the extent Indemnitee otherwise would
have any greater right to indemnification or payment of any advancement of Expenses under any other
provisions under applicable law, the Certificate, Bylaws, any agreement, vote of stockholders, a
resolution of directors or otherwise, Indemnitee will be entitled under this Agreement to such
greater right. No amendment, alteration or repeal of this Agreement or of any provision hereof
limits or restricts any right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee prior to such amendment, alteration or repeal. To the extent that a
change in the DGCL, whether by statute or judicial decision, permits greater indemnification than
would be afforded currently under the Certificate, Bylaws and this Agreement, it is the intent of
the parties hereto that Indemnitee enjoy by this Agreement the greater benefits so afforded by such
change. No right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy will 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 or employment of any
right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or
employment of any other right or remedy.
- 14 -
9.2. Subrogation. In the event of any payment by the Company under this Agreement, the
Company will be subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee with respect thereto and Indemnitee will execute all papers required and take all action
necessary to secure such rights, including execution of such documents as are necessary to enable
the Company to bring suit to enforce such rights (it being understood that all of Indemnitee’s
reasonable Expenses related thereto will be borne by the Company).
9.3. No Duplicative Payments. The Company will not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable (or any Expense for which advancement is provided)
hereunder if and to the extent that Indemnitee has otherwise actually received such payment under
any insurance policy, contract, agreement or otherwise. The Company’s obligation to indemnify or
advance Expenses hereunder to Indemnitee in respect of Proceedings relating to Indemnitee’s service
at the request of the Company as a director, officer, employee, partner, member, manager, trustee,
fiduciary or agent of any other Enterprise will be reduced by any amount Indemnitee has actually
received as indemnification or advancement of Expenses from such other Enterprise.
9.4. Information. If the Indemnitee is the subject of or is implicated in any way during an
investigation, whether formal or informal, the Company shall share with Indemnitee any information
it has furnished to any third parties concerning the investigation provided that Indemnitee
continues to serve as a director or officer of the Company at the time such information is so
furnished.
9.5. Period of Limitations. No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against Indemnitee, Indemnitee’s estate, spouse, heirs,
executors or personal or legal representatives after the expiration of two years from the date of
accrual of such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, such shorter period shall govern.
ARTICLE 10
DEFENSE OF PROCEEDINGS
10.1. Company Assuming the Defense. Subject to Section 10.3 below, in the event the
Company is obligated to pay in advance the Expenses of any Proceeding pursuant to Article
4, the Company will be entitled, by written notice to Indemnitee, to assume the defense of such
Proceeding, with counsel approved by Indemnitee, which approval will not be unreasonably withheld.
The Company will identify the counsel it proposes to employ in connection with such defense as part
of the written notice sent to Indemnitee notifying Indemnitee of the Company’s election to assume
such defense, and Indemnitee will be required, within ten days following Indemnitee’s receipt of
such notice, to inform the Company of its approval of such counsel or, if
it has objections, the reasons therefor. If such objections cannot be resolved by the
parties, the Company will identify alternative counsel, which counsel will also be subject to
approval by Indemnitee in accordance with the procedure described in the prior sentence.
- 15 -
10.2. Right of Indemnitee to Employ Counsel. Following approval of counsel by Indemnitee
pursuant to Section 10.1 and retention of such counsel by the Company, the Company will not
be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently
incurred by Indemnitee with respect to the same Proceeding; provided, however, that if, under
applicable laws and rules of attorney professional conduct, there exists a potential, but not
actual, conflict of interest between the Company (or any other person or persons included in a
joint defense) and Indemnitee in the conduct of the defense or representation by such counsel
retained by the Company and Indemnitee, the Company’s indemnification and expense advancement
obligations to Indemnitee under this Agreement shall include reasonable legal fees and reasonable
costs incurred by Indemnitee for separate counsel retained by Indemnitee to monitor the litigation;
provided, further, that if such counsel retained by Indemnitee reasonably concludes that there is
an actual conflict between the Company (or any other person or persons included in a joint defense)
and Indemnitee in the conduct of such defense or representation by such counsel retained by the
Company, such counsel may assume Indemnitee’s defense in such proceeding. The existence of an
actual or potential conflict, and whether any such conflict may be waived, shall be determined
pursuant to the rules of attorney professional conduct and applicable law.
10.3. Company Not Entitled to Assume Defense. Notwithstanding Section 10.1, the
Company will not be entitled to assume the defense of any Proceeding brought by or on behalf of the
Company or any Proceeding as to which Indemnitee has reasonably made the conclusion provided for in
Section 10.2.
ARTICLE 11
SETTLEMENT
11.1. Company Bound by Provisions of this Agreement. Notwithstanding anything in this
Agreement to the contrary, the Company will have no obligation to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any Proceeding effected without the Company’s prior
written consent.
11.2. When Indemnitee’s Prior Consent Required. The Company will not, without the prior
written consent of Indemnitee, consent to the entry of any judgment against Indemnitee or enter
into any settlement or compromise which (i) includes an admission of fault of Indemnitee, any
non-monetary remedy imposed on Indemnitee or a Loss for which Indemnitee is not wholly indemnified
hereunder or (ii) with respect to any Proceeding with respect to which Indemnitee may be or is made
a party or a participant or may be or is otherwise entitled to seek indemnification hereunder, does
not include, as an unconditional term thereof, the full release of Indemnitee from all liability in
respect of such Proceeding, which release will be in form and substance reasonably satisfactory to
Indemnitee. Neither the Company nor Indemnitee will unreasonably withhold its consent to any
proposed settlement; provided, however, Indemnitee
may withhold consent to any settlement that does not provide a full and unconditional release
of Indemnitee from all liability in respect of such Proceeding.
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ARTICLE 12
DURATION OF AGREEMENT
12.1. Duration of Agreement. This Agreement will continue until and terminate upon the latest
of (a) the statute of limitations applicable to any claim that could be asserted against an
Indemnitee with respect to which Indemnitee may be entitled to indemnification and/or an Expense
Advance under this Agreement, (b) ten years after the date that Indemnitee has ceased to serve as a
director or officer of the Company or as a director, officer, employee, partner, member, manager,
fiduciary or agent of any other Enterprise which Indemnitee served at the request of the Company,
or (c) if, at the later of the dates referred to in (a) and (b) above, there is pending a
Proceeding in respect of which Indemnitee is granted rights of indemnification or the right to an
Expense Advance under this Agreement or a Proceeding commenced by Indemnitee pursuant to
Article 8 of this Agreement, one year after the final termination of such Proceeding,
including any and all appeals.
ARTICLE 13
MISCELLANEOUS
13.1. Entire Agreement. This Agreement constitutes the entire agreement and understanding of
the parties in respect of the subject matter hereof and supersedes all prior understandings,
agreements or representations by or among the parties, written or oral, to the extent they relate
in any way to the subject matter hereof; provided, however, it is agreed that the provisions
contained in this Agreement are a supplement to, and not a substitute for, any provisions regarding
the same subject matter contained in the Certificate, the Bylaws and any employment or similar
agreement between the parties.
13.2. Assignment; Binding Effect; No Third Party Beneficiaries. No party may assign either
this Agreement or any of its rights, interests or obligations hereunder without the prior written
approval of the other party and any such assignment by a party without prior written approval of
the other parties will be deemed invalid and not binding on such other parties; provided, however,
that the Company may assign all (but not less than all) of its rights, obligations and interests
hereunder to any direct or indirect successor to all or substantially all of the business or assets
of the Company by purchase, merger, consolidation or otherwise and will cause such successor to be
bound by and expressly assume the terms and provisions hereof. All of the terms, agreements,
covenants, representations, warranties, and conditions of this Agreement are binding upon, and
inure to the benefit of and are enforceable by, the parties and their respective successors,
permitted assigns, heirs, executors and personal and legal representatives. There are no third
party beneficiaries having rights under or with respect to this Agreement. The Company shall
require and cause any successor (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, by written agreement in form and substance reasonably satisfactory to the Indemnitee,
expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. The indemnification provided under this Agreement shall continue as to
Indemnitee for any action taken or not taken while serving in an indemnified capacity pertaining to
any indemnifiable event hereunder even though Indemnitee may have ceased to serve in such capacity
at the time of any Proceeding.
- 17 -
13.3. Notices. All notices, requests and other communications provided for or permitted to be
given under this Agreement must be in writing and be given by personal delivery, by certified or
registered United States mail (postage prepaid, return receipt requested), by a nationally
recognized overnight delivery service for next day delivery, or by facsimile transmission, as
follows (or to such other address as any party may give in a notice given in accordance with the
provisions hereof):
| If to Company: | Xxxxx Instruments Corp. | |||||
| 00 Xxxxxx | ||||||
| Xxxxxx, XX 00000 | ||||||
| Attention: CFO | ||||||
| Facsimile: (000) 000-0000 | ||||||
| With a copy to: |
|
|||||
| If to Indemnitee: |
|
|||||
All notices, requests or other communications will be effective and deemed given only as follows:
(i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified or
registered mail, on the fifth business day after being deposited in the United States mail, (iii)
if sent for next day delivery by overnight delivery service, on the date of delivery as confirmed
by written confirmation of delivery, (iv) if sent by facsimile, upon the transmitter’s confirmation
of receipt of such facsimile transmission, except that if such confirmation is received after 5:00
p.m. (in the recipient’s time zone) on a business day, or is received on a day that is not a
business day, then such notice, request or communication will not be deemed effective or given
until the next succeeding business day. Notices, requests and other communications sent in any
other manner, including by electronic mail, will not be effective.
13.4. Specific Performance; Remedies. Each party acknowledges and agrees that the other party
would be damaged irreparably if any provision of this Agreement were not performed in accordance
with its specific terms or were otherwise breached. Accordingly, the parties will be entitled to
an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and its provisions in any action or proceeding instituted in any state
or federal court sitting in Orange County, California having jurisdiction over the parties and the
matter, in addition to any other remedy to which they may be entitled, at
law or in equity. Except as expressly provided herein, the rights, obligations and remedies
created by this Agreement are cumulative and in addition to any other rights, obligations or
remedies otherwise available at law or in equity. Except as expressly provided herein, nothing
herein will be considered an election of remedies.
- 18 -
13.5. Headings. The article and section headings contained in this Agreement are inserted for
convenience only and will not affect in any way the meaning or interpretation of this Agreement.
13.6. Governing Law. This Agreement will be governed by and construed in accordance with the
laws of the State of Delaware, without giving effect to any choice of law principles.
13.7. Amendment. This Agreement may not be amended or modified except by a writing signed by
all of the parties.
13.8. Extensions; Waivers. Any party may, for itself only, (i) extend the time for the
performance of any of the obligations of any other party under this Agreement, (ii) waive any
inaccuracies in the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or waiver will be
valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any
party of any default, misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way any rights arising because of any
prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to
exercise any right or remedy under this Agreement will operate as a waiver thereof, nor will any
single or partial exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
13.9. Severability. The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions hereof; provided that if any provision of this Agreement, as applied to any
party or to any circumstance, is judicially determined not to be enforceable in accordance with its
terms, the parties agree that the court judicially making such determination may modify the
provision in a manner consistent with its objectives such that it is enforceable, and/or to delete
specific words or phrases, and in its modified form, such provision will then be enforceable and
will be enforced.
13.10. Counterparts; Effectiveness. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together will constitute
one and the same instrument. This Agreement will become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties, which delivery may be
made by exchange of copies of the signature page by facsimile transmission.
- 19 -
13.11. Construction. Any reference to any law will be deemed also to refer to such law as
amended and all rules and regulations promulgated thereunder, unless the context requires
otherwise. The words “include,” “includes,” and “including” will be deemed to be followed by
“without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to
include any other gender, and words in the singular form will be construed to include the plural
and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,”
“hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. The parties intend that each
representation, warranty, and covenant contained herein will have independent significance. If any
party has breached any representation, warranty, or covenant contained herein in any respect, the
fact that there exists another representation, warranty or covenant relating to the same subject
matter (regardless of the relative levels of specificity) which the party has not breached will not
detract from or mitigate the fact that the party is in breach of the first representation,
warranty, or covenant. Time is of the essence in the performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| XXXXX INSTRUMENTS CORP. | ||||||
| By: |
|
|||||
| Name: |
|
|||||
| Title: |
|
|||||
| INDEMNITEE: | ||||||
| By: |
|
|||||
| Name: |
|
|||||
| Title: |
|
|||||
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