WELLCARE HEALTH PLANS, INC. INDEMNIFICATION AGREEMENT
Exhibit
10.4
This
INDEMNIFICATION AGREEMENT (this “Agreement”) is entered into as of April 1,
2008, by and between WellCare Health Plans, Inc., a Delaware corporation (the
“Company”), and Xxxxxx X. X’Xxxx III, (“Indemnitee”). Capitalized
terms used and not otherwise defined in this Agreement have the meanings set
forth in Section 10 hereof.
RECITALS
A. The
Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the directors, officers, employees, agents and fiduciaries of the
Company and its Subsidiaries, the significant increases in the cost of such
insurance and the general reductions in the coverage of such
insurance.
B. The
Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, agents and
fiduciaries to expensive litigation risks at the same time as the availability
and coverage of liability insurance has been severely limited.
C. Indemnitee
does not regard the current protection available as adequate under the present
circumstances, and Indemnitee and other directors, officers, employees, agents
and fiduciaries of the Company may not be willing to continue to serve in such
capacities without additional protection.
D. The
Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and/or one or more of its
Subsidiaries and, in order to induce Indemnitee to provide or to continue to
provide services to the Company and/or one or more of its Subsidiaries, wishes
to provide for the indemnification and advancing of expenses to Indemnitee to
the maximum extent permitted by law.
E. In
view of the considerations set forth above, the Company desires that Indemnitee
be indemnified by the Company as set forth herein.
NOW,
THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Indemnification
(a) Indemnification
of Expenses. The
Company shall indemnify Indemnitee to the fullest extent permitted by law if
Indemnitee was or is or becomes a party to or witness or other participant in,
or is threatened to be made a party to or witness or other participant in, any
Proceeding, against any and all Expenses, including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses. Subject to Section 1(b) hereof, such payment of
Expenses shall be made by the Company as soon as practicable but in any event no
later than thirty (30) days after written demand by Indemnitee therefor is
presented to the Company.
(b) Reviewing
Party. Notwithstanding anything to the contrary in Sections 1(a) or
2(a) hereof:
(i) the
indemnification obligations of the Company under Section 1(a) hereof shall
be subject to the condition that the Reviewing Party shall not have determined
that Indemnitee would not be permitted to be indemnified under applicable law;
and
(ii) the
obligation of the Company to make an advance payment of Expenses to Indemnitee
pursuant to Section 2(a) hereof (an “Expense Advance”) shall be subject to
the condition that, if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified under
applicable law, the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore
paid by Company to Indemnitee; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed).
Indemnitee’s
obligation to reimburse the Company for any Expense Advance shall be unsecured
and no interest shall be charged thereon. If there has not been a
Change in Control, or it there has been a Change in Control which has been
approved by a majority of the directors of the Company who were directors
immediately prior to the Change in Control (the “Incumbent Directors”), the
Reviewing Party shall be selected by the Board of Directors of the Company, and
if there has been a Change in Control which has not been approved by a majority
of the Incumbent Directors, the Reviewing Party shall be the Independent Legal
Counsel. If there has been no determination by the Reviewing Party or
if the Reviewing Party determines that Indemnitee would not be permitted to be
indemnified in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any aspect thereof,
including the legal or factual bases therefor, and the Company hereby consents
to service of process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on the Company and
Indemnitee.
(c) Contribution . If the
indemnification obligations of the Company under Section 1(a) hereof shall be
held by a court of competent jurisdiction for any reason other than that set
forth in Section 8(a) hereof to be unavailable to Indemnitee in respect of any
Expense, then the Company, in lieu of indemnifying Indemnitee thereunder, shall
contribute to the amount paid or payable by Indemnitee as a result of such
Expense (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Indemnitee, 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 Company and Indemnitee
in connection with the action or inaction which resulted in such Expense, as
well as any other relevant equitable considerations. The Company and
Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 1(c) were determined by pro rata or per capita
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
sentence.
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(d) Mandatory Payment of
Expenses. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any Proceeding or in the defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection therewith.
2. Expenses; Indemnification
Procedure Advancement of Expenses. Subject
to the terms and conditions of Section 1(b) hereof and to the extent not
prohibited by applicable law, the Company shall advance all Expenses incurred by
Indemnitee. The advances to be made hereunder shall be paid by the
Company to Indemnitee as soon as practicable but in any event no later than
thirty (30) days after written demand by Indemnitee therefor to the
Company.
(b) Notice; Cooperation by Indemnitee.
Indemnitee shall, as a condition precedent to Indemnitee’s right to be
indemnified under this Agreement, give the Company notice in writing as soon as
practicable of any Proceeding for which indemnification will or could be sought
under this Agreement. In addition, Indemnitee shall give the Company
such information and cooperation as it may reasonably require and as shall be
within Indemnitee’s power.
(c) No Presumptions; Burden of
Proof
(i) For
purposes of this Agreement, the termination of any Proceeding by judgment,
order, settlement (whether with or without court approval) or conviction, or
upon a plea of nolo contendre or its equivalent, shall 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 applicable law. In addition, neither the failure of the
Reviewing Party to have made a determination as to whether Indemnitee has met
any particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that Indemnitee has not met such standard
of conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified under applicable law, shall 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.
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(ii) 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 Indemnitee is not so
entitled.
(d) Notice to Insurers. If, at
the time of the receipt by the Company of a notice of a Proceeding pursuant to
Section 2(b) hereof, the Company has liability insurance in effect which
may cover such Proceeding, the Company shall give prompt notice of the
commencement of such Proceeding to the insurers in accordance with the
procedures set forth in the respective policies. 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 action, suit, proceeding,
inquiry or investigation in accordance with the terms of such
policies.
(e) Selection of
Counsel. In the event the Company shall be obligated
hereunder to pay the Expenses of a Proceeding, the Company shall be entitled to
assume the defense of such Proceeding with counsel approved by Indemnitee, which
approval shall not be unreasonably withheld or delayed, upon the delivery to
Indemnitee of written notice of its election so to do. After delivery of such
notice, approval of such counsel by Indemnitee and 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 same Proceeding; provided that (i) Indemnitee
shall have the right to employ Indemnitee’s counsel in any such Proceeding at
Indemnitee’s expense and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee
shall have reasonably concluded that there is a conflict of interest between the
Company and Indemnitee in the conduct of any such defense, or (C) the
Company shall not continue to retain such counsel to defend such Proceeding,
then the fees and expenses of Indemnitee’s counsel shall be at the expense of
the Company. The Company shall have the right to conduct such defense
as it sees fit in its sole discretion, provided that the Company has the right
to settle any claim against Indemnitee only with the consent of Indemnitee,
which shall not be unreasonably withheld or delayed.
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3. Scope; Nonexclusivity
Scope. It is understood
that the parties to this Agreement intend for this Agreement to be interpreted
and enforced so as to provide indemnification and advancement of Expenses to
Indemnitee to the fullest extent now or hereafter permitted by law, subject only
to the express exceptions and limitations otherwise set forth in this
Agreement. In the event of any change after the date of this
Agreement in any applicable law, statute or rule which expands the right of the
Company to indemnify a member of the Board of Directors or an officer, employee,
agent or fiduciary of the Company or any Subsidiary, as applicable, 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, statute or rule which narrows the right of the Company to
indemnify a member of the Board of Directors or an officer, employee, agent or
fiduciary of the Company or any Subsidiary, as applicable, 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.
(b) Nonexclusivity. The
indemnification and advancement of Expenses provided by this Agreement shall be
in addition to any rights to which Indemnitee may be entitled under the charter
documents of the Company or any Subsidiary, any agreement, any vote of
stockholders or disinterested directors, the General Corporation Law of the
State of Delaware, or otherwise.
4. No Duplication of Payments. The
Company shall not be liable under this Agreement to make any payment in
connection with any Proceeding against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy, charter
documents of the Company or any Subsidiary or otherwise) of the amounts
otherwise indemnifiable hereunder.
5. Partial Indemnification. If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of Expenses incurred in connection with any
Proceeding, but not for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such Expenses to which
Indemnitee is entitled.
6. Mutual
Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, Federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands
and acknowledges that the Company may be required in the future to undertake
with the Securities and Exchange Commission 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.
7. Maintenance of Liability Insurance.
The Company shall, from time to time, make the good faith determination whether
or not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing the officers
and directors of the Company with coverage for losses from wrongful acts, or to
ensure the Company’s performance of its indemnification obligations under this
Agreement. Among other considerations, the Company will weigh the
costs of obtaining such insurance coverage against the protection afforded by
such coverage. In all policies of director and officer liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company’s directors, if Indemnitee is a director, or of
the Company’s officers, if Indemnitee is not a director of the Company but is an
officer. Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain such insurance if the Company determines in
good faith that such insurance is not reasonably available, if the premium costs
for such insurance are disproportionate to the amount of coverage proved, if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or if Indemnitee is covered by similar insurance
maintained by a parent or Subsidiary of the Company
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8. Exceptions. Notwithstanding
anything to the contrary herein other than Section 1(d) hereof, the Company
shall not be obligated pursuant to the terms of this
Agreement:
Notwithstanding
anything to the contrary herein other than Section 1(d) hereof, the Company
shall not be obligated pursuant to the terms of this Agreement:
(a) Unlawful Claims. To
indemnify Indemnitee with respect to any Proceeding if a final decision by a
court having jurisdiction shall have determined that such indemnification is not
lawful;
To
indemnify Indemnitee with respect to any Proceeding if a final decision by a
court having jurisdiction shall have determined that such indemnification is not
lawful;
(b) Proceedings Initiated by
Indemnitee. To indemnify or advance Expenses to Indemnitee with
respect to Proceedings initiated or brought voluntarily by Indemnitee and not by
way of defense, except (i) with respect to any Proceeding (x) brought
to establish or enforce a right to indemnification or advancement of Expenses
under this Agreement, or any other agreement, or insurance policy, or the
charter documents of the Company or any Subsidiary, now or hereafter in effect
relating to any Proceeding, or (y) specifically authorized by the Board of
Directors, or (ii) as otherwise required under Section 145 of the
Delaware General Corporation Law, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be; provided, however, that such
indemnification or advancement of Expenses may be provided by the Company in
specific cases if the Board of Directors determines it to be
appropriate;
(c) Claims Under Section 16(b).
To
indemnify Indemnitee for Expenses, judgments, fines or penalties sustained in
any Proceeding for an accounting of profits arising from the purchase and sale
by Indemnitee of securities of the Company in violation of Section 16(b) of
the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), rules and regulations promulgated thereunder, or
any similar provisions of any federal, state or local statute;
or
(d) Lack of Good Faith. To
indemnify Indemnitee for any Expenses incurred by Indemnitee with respect to any
Proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by Indemnitee in such Proceeding was not made in good faith or was
frivolous.
9. 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 three (3) 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 three-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.
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10. Construction of Certain Terms and
Phrases. As used
in this Agreement, the following terms and phrases shall have the meanings set
forth below:
(a) A
“Change in Control” shall be deemed to have occurred if (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, (A) who is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing 10% or
more of the combined voting power of the Company’s then outstanding Voting
Securities, increases his beneficial ownership of such securities by 5% or more
over the percentage so owned by such person, or (B) becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing more than 20% of the total voting
power represented by the Company’s then outstanding Voting Securities,
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and
any new director 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, cease for any reason to constitute a majority thereof,
or (iii) the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented
by the Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of
transactions) all or substantially all of the Company’s assets.
(b) References
to the “Company” shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees,
agents or fiduciaries, so that if Indemnitee is or was a director, officer,
employee, agent or fiduciary of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, Indemnitee shall stand in the
same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
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(c) “Expense”
shall include any and all expenses (including attorneys’ fees and all other
costs, expenses and obligations incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in, a Proceeding),
judgments, fines, penalties and amounts paid in settlement (if such settlement
is approved in advance by the Company, which approval shall not be unreasonably
withheld or delayed) of a Proceeding, and 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.
(d) “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 three
years (other than with respect to matters concerning the rights of Indemnitee
under this Agreement, or of other indemnitees under similar indemnity
agreements). Independent Legal Counsel shall be selected as
follows: (i) by a majority of the Disinterested Directors if there
has not been a Change in Control or if there has been a Change in Control which
has been approved by a majority of the Incumbent Directors; or (ii) by
Indemnitee, subject to the approval by a majority of the Disinterested Directors
(which shall not be unreasonably withheld), if there has been a Change in
Control which has not been approved by a majority of the Incumbent
Directors. The Company agrees to pay the reasonable fees of the
Independent Legal Counsel, regardless of which party selects the Independent
Legal Counsel.
(e) References
to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on Indemnitee with respect to an
employee benefit plan; and references to “serving at the request of the Company”
shall include any service as a director, officer, employee, agent or fiduciary
of the Company which imposes duties on, or involves services by, such director,
officer, employee, agent or fiduciary with respect to an employee benefit plan,
its participants or its beneficiaries.
(f) “Proceeding”
shall mean any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the
institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether brought by or in the right of the Company or any
Subsidiary or otherwise, and whether civil, criminal, administrative,
investigative or other, in which Indemnitee was or is or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant by reason of (or arising in part out of) any event
or occurrence related to the fact that Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company or any Subsidiary, or is or was
serving at the request of the Company or any Subsidiary as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action or inaction on the part of
Indemnitee while
serving in such capacity.
(g) “Reviewing
Party” shall mean (i) the Board of Directors acting by a majority vote of
the directors who are not and were not parties to the Proceeding in respect of
which indemnification is being sought (the “Disinterested Directors”),
(ii) a committee of some or all of the Disinterested Directors designated
by a majority vote of the Disinterested Directors, or (iii) Independent
Legal Counsel.
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(h) “Subsidiary”
shall mean any corporation or other entity of which more than 50% of the
outstanding Voting Securities is owned directly or indirectly by the Company, by
the Company and one or more other Subsidiaries, or by one or more other
Subsidiaries.
(i) “Voting
Securities” shall mean any securities of the Company that vote generally in the
election of directors.
11. Counterparts: This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
12. 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 (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), assigns,
spouses, heirs, and personal and legal representatives. 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 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. This
Agreement shall continue in effect with respect to any Proceeding regardless of
whether Indemnitee continues to serve as a director, officer, employee, agent or
fiduciary of the Company, any Subsidiary or any other enterprise at the
Company’s request.
13. Attorneys’ Fees. In the event
that any action is instituted by Indemnitee under this Agreement or under any
liability insurance policies maintained by the Company to enforce or interpret
any of the terms hereof or thereof, Indemnitee shall be entitled to be paid all
expenses incurred by Indemnitee with respect to such action, regardless of
whether Indemnitee is ultimately successful in such action, and shall be
entitled to the advancement of such expenses with respect to 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. In the event
of an action instituted by or in the name of the Company under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all expenses incurred by Indemnitee in defense of such
action (including costs and expenses incurred with respect to Indemnitee
counterclaims and cross-claims made in such action), and shall be entitled to
the advancement of such expenses with respect to such action, unless, as a part
of such action, a court having jurisdiction over such action determines that
each of Indemnitee’s material defenses to such action was not made in good faith
or was frivolous.
14. Notice. All notices and other
communications required or permitted hereunder shall be in writing, shall be
effective when received, and shall in any event be deemed to be received
(a) five (5) days after deposit with the U.S. Postal Service or other
applicable postal service, if delivered by certified or registered mail, postage
prepaid, (b) upon delivery, if delivered by hand, (c) one business day
after the business day of deposit with Federal Express or similar overnight
courier, freight prepaid, or (d) one day after the business day of delivery by
facsimile transmission, if delivered by facsimile transmission, with copy by
first class mail, postage prepaid, and shall be addressed if to Indemnitee, at
Indemnitee’s address as set forth beneath Indemnitee’s signature to this
Agreement and if to the Company at the address of its principal corporate
offices (attention: Secretary) or at such other address as a party may designate
by ten days’ advance written notice to the other party hereto.
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15. Headings. The
headings used in this Agreement have been inserted for convenience of reference
only and do not define or limit the provisions hereof.
16. 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 limitations, 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 intent manifested by the provision held
invalid, illegal or unenforceable.
17. Choice of
Law. This
Agreement shall be governed by and its provisions construed and enforced in
accordance with the laws of the State of Delaware, as applied to contracts
between Delaware residents, entered into and to be performed entirely within the
State of Delaware, without regard to the conflict of laws principles
thereof.
18. 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.
19. Amendment and
Termination. No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless it is in writing signed by both the parties hereto. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
20. Integration and Entire
Agreement. This
Agreement sets forth the entire understanding between the parties hereto and
supersedes and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof between the
parties hereto.
21. No Construction as
Employment Agreement. Nothing
contained in this Agreement shall be construed as giving Indemnitee any right to
be retained in the employ of the Company or any of its
Subsidiaries.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: President
& CEO
AGREED TO
AND ACCEPTED BY:
Signature: /s/ Xxxxxx X. X'Xxxx
III
Name: Xxxxxx X. X’Xxxx
III
Address: 000 Xx. Xxxxxxx'x Xxxx
Xxxxxxxxx, Xxxxxxxx
00000
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