EXHIBIT 10.85
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (the "Agreement"), made this 9th day of March,
2001, between WorldWide Web NetworX Corporation, a Delaware corporation (the
"Company"), and G. Xxxxx Xxxxxxxxx, an officer and director of the Company (the
"Indemnitee").
WHEREAS, it is essential that the Company retain capable persons as
directors and officers; and
WHEREAS, both the Company and the Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
companies in today's environment; and
WHEREAS, the Indemnitee has agreed to continue to serve as a director
and/or an officer of the Company; and
WHEREAS, the By-Laws of the Company (the "By-Laws") provide for certain
indemnification of the officers and directors of the Company; and
WHEREAS, in recognition of the Indemnitee's need for substantial
protection against personal liability and to provide the Indemnitee with
specific contractual assurance that the protection provided by the By-Laws will
be available to the Indemnitee (regardless of, among other things, any amendment
to or revocation of the Articles of Incorporation or By-Laws, or any Change in
Control (as herein defined), the Company wishes to provide in this Agreement for
the indemnification of and the advancement of expenses to the Indemnitee to the
fullest extent permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained, for the continued coverage of the Indemnitee
under the Company's directors' and officers' liability insurance policies.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
SECTION 1. INDEMNIFICATION.
In the event that the Indemnitee is made a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, or is otherwise involved, in any action, suit, proceeding,
arbitration, alternate dispute resolution mechanism, or any inquiry or
investigation, whether civil, criminal, administrative or investigative
(hereinafter a "Proceeding"), by reason of the fact that the Indemnitee was a
director, officer or employee of the Company or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
whether the basis of such actual or threatened proceeding is alleged action in
an official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, the Indemnitee
shall be indemnified and held harmless by the Company to the fullest extent
authorized by the Delaware General Corporation Law (the "GCL") and the By-Laws
as the same exist or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
said law permitted the Company to provide prior to such amendment), against all
expense, liability and loss (including, without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by the Indemnitee in connection
therewith, and such indemnification shall continue as to the Indemnitee if the
Indemnitee ceases to be a director, officer, employee or agent and shall inure
to the benefit of the Indemnitee's heirs, executors and administrators;
provided, however, that, except as provided in Section 2 with respect to
proceedings seeking to enforce rights to indemnification, the Company shall
indemnify the Indemnitee in connection with a proceeding (or part thereof)
initiated by the Indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Company.
SECTION 2. SUIT TO RECOVER.
If a claim under Section 1 is not paid in full by the Company within ten
(10) days after a written claim has been received by the Company, the Indemnitee
may at any time thereafter bring suit against the Company to recover the unpaid
amount of the claim and, if successful in whole or in part, the Indemnitee shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expense incurred in defending any actual or threatened proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Company) that the Indemnitee has not met the standards of
conduct which make it permissible under the GCL for the Company to indemnify the
Indemnitee for the amount claimed, but the burden of proving such defense shall
be on the Company. Neither the failure of the Company (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the GCL, nor an actual determination
by the Company (including its Board of Directors, independent legal counsel or
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
SECTION 3. CHANGE IN CONTROL.
Following any "change in control" of the Company of the type required to
be reported under Item 1 of Form 8-K promulgated under the Securities Exchange
Act of 1934, as amended, any determination as to entitlement to indemnification
shall be made by Independent Legal Counsel selected by the Indemnitee, such
Independent Legal Counsel to be retained by the Board of Directors on behalf of
the Company. "Independent Legal Counsel" shall mean an attorney or firm of
attorneys who shall not have otherwise performed services for the Company or
Indemnitee within the last five (5) years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
SECTION 4. INSURANCE.
In the event that the Company maintains insurance to protect itself and
any director or officer of the Company against any expense, liability or loss,
such insurance shall cover the Indemnitee to at least the same extent as any
other director or officer of the Company.
SECTION 5. ADVANCE OF EXPENSES.
The right to indemnification conferred by this Agreement shall include the
right to be paid by the Company the expenses incurred in defending any actual or
threatened proceeding in advance of its final disposition; provided, however,
that, if the GCL requires, the payment of such expenses incurred by the
Indemnitee in advance of the final disposition of any actual or threatened
proceeding shall be made only upon delivery to the Company of an undertaking, by
or on behalf of the Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
under this Agreement or otherwise.
SECTION 6. INDEMNIFICATION FOR ADDITIONAL EXPENSES.
The Company shall indemnify the Indemnitee against any and all expenses
(including reasonable attorneys' fees) and, if requested by the Indemnitee,
shall (within ten business days of such request) advance such expenses to the
Indemnitee, which are incurred by the Indemnitee in connection with any action
brought by the Indemnitee for (i) indemnification or advance payment of expenses
by the Company under this Agreement, the Charter or any other agreement,
certificate of incorporation or Company by-law now or hereafter in effect
relating to claims and/or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Company; provided, however, that
the payment of expenses incurred by the Indemnitee in advance of the final
disposition of such action will be made only upon receipt by the Company of an
undertaking by the Indemnitee to repay all amounts advanced if it should be
ultimately determined that the Indemnitee is not entitled to be indemnified
under this Agreement or otherwise.
SECTION 7. PARTIAL INDEMNITY.
If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for a portion of the expenses, judgments, fines,
penalties and amounts paid in settlement of a claim but not, however, for the
total amount thereof, the Company shall nevertheless indemnify the Indemnitee
for the portion thereof to which the Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any or
all claims or in defense of any issue or matter therein, including dismissal
without prejudice, Indemnitee shall be indemnified against all expenses incurred
in connection therewith.
SECTION 8. BURDEN OF PROOF.
In connection with any determination by the Reviewing Party or otherwise
as to whether Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish that the Indemnitee is not so
entitled. "Reviewing Party" shall mean any person or
group of persons consisting of a member or members of the Company's Board of
Directors or any other person or body appointed by the Board who is not a party
to the particular Proceeding for which the Indemnitee is seeking
indemnification, or Independent Legal Counsel, who shall determine whether the
Indemnitee is entitled to be indemnified hereunder.
SECTION 9. NO PRESUMPTIONS.
For purposes of this Agreement, the termination of any claim, action, suit
or proceeding, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its equivalent,
shall not create a presumption that the Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has determined
that indemnification is not permitted by applicable law. In addition, neither
the failure of a Reviewing Party to have made a determination as to whether the
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by a Reviewing Party that the Indemnitee has
not met such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by the Indemnitee to secure a judicial
determination that the Indemnitee should be indemnified under applicable law
shall be a defense to the Indemnitee's claim or create a presumption that the
Indemnitee has not met any particular standard of conduct or did not have any
particular belief.
SECTION 10. NON-EXCLUSIVITY.
The rights conferred in this Agreement shall not be exclusive of any other
right which the Indemnitee may have or hereafter acquire under any statute,
provision of the Articles of Incorporation, By-Laws, agreement, vote of
stockholders or of disinterested directors or otherwise.
SECTION 11. 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 the
Indemnitee, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
SECTION 12. NO DUPLICATION OF PAYMENTS.
The Company shall not be liable under this Agreement to make any payment
in connection with any claim made against the Indemnitee to the extent the
Indemnitee has otherwise actually received payment (under any insurance policy,
the Articles of Incorporation or otherwise) of the amounts otherwise
indemnifiable hereunder.
SECTION 13. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including 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, spouses, heirs,
executors and personal and legal representatives. This Agreement shall continue
in effect regardless of whether the Indemnitee continues to serve as an officer
or director of the Company or of any other enterprise at the Company's request.
SECTION 14. 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) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable in any respect, and the validity and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired and shall remain enforceable
to the fullest extent permitted by law.
SECTION 15. AMENDMENT.
This Agreement may not be changed, modified or amended except in writing
signed by the parties hereto.
SECTION 16. GOVERNING LAW.
This Agreement shall be governed and construed in accordance with the law
of the State of Delaware, without regard to its conflict of laws doctrine.
SECTION 17. COUNTERPARTS.
This Agreement may be signed in counterparts (and by facsimile), each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Company and the Indemnitee have executed this
Agreement as of the day and year first above written.
WORLDWIDE WEB NETWORX CORPORATION
By: /s/ Xxxxx X. Shar
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Name: Xxxxx X. Shar
Title: Assistant Secretary
/s/ G. Xxxxx Xxxxxxxxx
---------------------------------
Name: G. Xxxxx Xxxxxxxxx
