INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, dated September 17, 2004, is made by and
among xxxxxxxx.xxx, inc., (the "Company"), on the one hand, and Xxxx Xxxxxxx
(the "Individual"), on the other hand.
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Indemnification
(a) The Company shall indemnify and hold harmless the Individual to the
fullest extent permitted by law against any judgments, fines, amounts paid in
settlement, and expenses (including attorneys' fees and disbursements) incurred
in connection with, or in any way arising out of, any claim, action or
proceeding (whether civil or criminal) against, or affecting, the Individual
resulting from, relating to or in any way arising out of, (i) the Individual's
current position as an officer, director, trustee, partner or any other position
with any entity, employee benefit plan or other enterprise that Individual
serves at the request of the Company (including, without limitation, those
positions set forth on Annex A hereto) or (ii) any such future positions that
the Individual serves at the request of the Company. This indemnification shall
be in addition to, and not in lieu of, any other indemnification that the
Individual shall be entitled to pursuant to the Fourth Amended and Restated
Certificate of Incorporation, By-Laws or other applicable governance document of
the Company or otherwise under applicable law.
(b) The Individual shall provide notice to the Company of any action or
proceeding that would give rise to a claim for indemnification hereunder (an
"Action") and of his or her intention to make a claim for indemnification
hereunder; provided, however, that no delay or failure on the part of the
Individual in notifying the Company shall relieve the Company from any
obligation hereunder unless and solely to the extent the Company is materially
and adversely prejudiced thereby. Upon request by the Individual, the Company
shall pay all reasonable fees and expenses and other costs incurred by the
Individual by reason of his or her participation in the Action in advance of the
final disposition of the Action.
2. Separate Counsel
With respect to any Action, the Company will be entitled (a) to
participate therein at its own expense and (b) to assume the defense, jointly
with any other indemnifying party, with counsel satisfactory to the Individual;
provided, however, that the Company will not be entitled to assume the defense
if the Individual shall have concluded that there may be a conflict of interest
between the Company and such Individual with respect to such Action. After the
Company has so assumed such defense in accordance with this Paragraph 2, the
Company will not be liable to the Individual for any fees and expenses of
counsel subsequently incurred by the Individual. The Individual shall have the
right to employ his or her own counsel in an Action, but the fees and expenses
of such counsel shall be at the expense of such Individual.
3. Settlement
The Company shall not be liable hereunder for any settlement of any Action
effected without its prior written consent (which consent may not be
unreasonably withheld). The Company shall not settle any Action without the
Individual's prior written consent, unless the proposed settlement only involves
the payment of money damages, does not impose a injunction or other equitable
relief upon the Individual, does not admit to any wrongdoing by the Individual
and results in the unconditional release of the Individual with respect to all
claims for which indemnification is sought.
4. Severability
If any clause, paragraph or provision of this Agreement or the application
thereof to any person or situation to any extent shall be held illegal, invalid
or unenforceable under present or future law, then in that event, it is the
intention of the parties hereto that the remainder of this Agreement shall not
be affected thereby and that such clause, paragraph or provision be reformed by
them so as to be legal, valid and enforceable.
5. Governing Law
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
6. Counterparts
This Agreement may be executed in one or more counterparts each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto duly execute this Indemnification
Agreement as of the date first above written.
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: President
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XXXX XXXXXXX
/s/ Xxxx Xxxxxxx
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