EXHIBIT 10.1
IMX Exchange, Inc.
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made as of
________________, 199__, by and between IMX Exchange, Inc., a Delaware
corporation (the "Company"), and ________________________ ("Indemnitee").
Recitals
A. The Company desires to attract and retain qualified directors, officers,
employees and other agents, and to provide them with protection against
liability and expenses incurred while acting in that capacity;
B. The Certificate of Incorporation and Bylaws of the Company contain
provisions for indemnifying directors and officers of the Company, and the
Bylaws and Delaware law contemplate that separate contracts may be entered into
between the Company and its directors and officers, employees and other agents
with respect to their indemnification by the Company, which contracts may
provide greater protection than is afforded by the Certificate of Incorporation
and Bylaws;
C. The Company understands that Indemnitee has reservations about serving or
continuing to serve the Company without adequate protection against personal
liability arising from such service, and that it is also of critical importance
to Indemnitee that adequate provision be made for advancing costs and expenses
of legal defense; and
D. The Board of Directors and the stockholders of the Company have approved as
being in the best interests of the Company indemnity contracts substantially in
the form of this Agreement for directors and officers of the Company and its
subsidiaries and for certain other employees and agents of the Company
designated by the Board of Directors.
NOW, THEREFORE, in order to induce Indemnitee to serve or to continue to serve
as a director and/or officer of the Company, and in consideration of
Indemnitee's service to the Company, the parties agree as follows:
1. Contractual Indemnity. In addition to the indemnification provisions of the
By-laws of the Company, the Company hereby agrees, subject to the limitations of
Sections 2 and 5 hereof:
(a) To indemnify, defend and hold Indemnitee harmless to the
greatest extent possible under applicable law from and against
any and all judgments, fines, penalties, amounts paid in
settlement and any other amounts reasonably incurred or suffered
by Indemnitee (including attorneys' fees) in connection with any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative,
including an action by or in the right of the Company, to which
Indemnitee is, was or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that
Indemnitee is, was or at any time becomes a director, officer,
employee or agent of the Company or is or
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was serving or at any time serves at the request of the Company
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise
(collectively referred to hereafter as a "Claim"), whether or not
arising prior to the date of this Agreement.
(b) To pay any and all expenses reasonably incurred by
Indemnitee in defending any Claim or Claims (including reasonable
attorneys' fees and other reasonable costs of investigation and
defense), as the same are incurred and in advance of the final
disposition of any such Claim or Claims, upon receipt of an
undertaking by or on behalf of Indemnitee to reimburse such
amounts if it shall be ultimately determined that Indemnitee (i)
is not entitled to be indemnified by the Company under this
Agreement, and (ii) is not entitled to be indemnified by the
Company under the Certificate of Incorporation or the Bylaws of
the Company.
The termination of any action or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself create a presumption that (i)
Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in the best interests of the
Company, or (ii) with respect to any criminal action or
proceeding, Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
2. Limitations on Contractual indemnity. Indemnitee shall not be entitled to
indemnification or advancement of expenses under Section 1:
(a) if a court of competent jurisdiction, by final judgment or
decree, shall determine that (i) the Claim or Claims in respect
of which indemnity is sought arise from Indemnitee's fraudulent,
dishonest or willful misconduct, or (ii) such indemnity is not
permitted under applicable law; or
(b) on account of any suit in which judgment is rendered for an
accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company in violation of the
provisions of Section 16(b) of the Securities Exchange Act of
1934 and amendments thereto or similar provisions of any federal,
state or local statutory law; or
(c) for any acts or omissions or transactions from which a
director may not be relieved of liability under the Delaware
General Corporation Law; or
(d) with respect to proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except (i)
with respect to proceedings brought in good faith to establish or
enforce a right to indemnification under this Agreement or any
other statute or law, or (ii) at the Company's discretion, in
specific cases if the Board of Directors of the Company has
approved the initiation or bringing of such suit; or
(e) for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise
taxes or penalties, and amounts paid in settlement) which have
been paid directly to Indemnitee by an insurance carrier
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under a policy of directors' and officers' liability insurance
maintained by the Company; or
(f) on account of any suit brought against Indemnitee for misuse
or misappropriation of non-public information, or otherwise
involving Indemnitee's status as an "insider" of the Company, in
connection with any purchase or sale by Indemnitee of securities
of the Company.
3. Continuation of Contractual Indemnity. Subject to the termination
provisions of Section 11, all agreements and obligations of the Company
contained herein shall continue for so long as Indemnitee shall be subject to
any possible action, suit, proceeding or other assertion of Claim or Claims.
4. Expenses Indemnification Procedure. The Company shall advance all expenses
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of any civil or criminal action or proceeding referenced in Section 1
hereof (but not amounts actually paid in settlement of any such action or
proceeding). Indemnitee hereby undertakes to repay such amounts advanced if, and
to the extent that, it shall ultimately be determined that Indemnitee is not
entitled to be indemnified by the Company as authorized hereby. The advances to
be made hereunder shall be paid by the Company to Indemnitee within twenty (20)
days following delivery of a written request therefor by Indemnitee to the
Company.
5. Notification and Defense of Claim. If any action, suit, proceeding or other
Claim is brought against Indemnitee in respect of which indemnity may be sought
under this Agreement:
(a) Indemnitee will promptly notify the Company in writing of
the commencement thereof; and the Company and any other
indemnifying party similarly notified will be entitled to
participate therein at its own expense or to assume the defense
thereof and to employ counsel reasonably satisfactory to
Indemnitee. Notice to the Company shall be directed to the Chief
Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). Notice shall
be deemed received three (3) business days after the date
postmarked if sent by domestic certified or registered mail,
properly addressed; otherwise notice shall be deemed received
when such notice shall actually be received by the Company.
Indemnitee shall have the right to employ its own counsel in
connection with any such Claim and to participate in the defense
thereof; but the fees and expenses of such counsel shall be at
the expense of Indemnitee unless (i) the Company shall not have
assumed the defense of the Claim and employed counsel for such
defense, or (ii) the named parties to any such action (including
any impleaded parties) include both Indemnitee and the Company,
and Indemnitee shall have reasonably concluded that joint
representation is inappropriate under applicable standards of
professional conduct due to a material conflict of interest
between Indemnitee and the Company, in either of which events the
reasonable fees and expenses of such counsel to the Indemnitee
shall be borne by the Company upon delivery to the Company of the
undertaking referred to in subparagraph (b) of Section 1.
However, in no event
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will the Company be obligated to pay the fees or expenses of more
than one firm of attorneys representing Indemnitee and any other
agents of the Company in connection with any one Claim or
separate but substantially similar or related Claims in the same
jurisdiction arising out of the same general allegations or
circumstances.
(b) The Company shall not be liable to indemnify Indemnitee for
any amounts paid in settlement of any Claim effected without the
Company's written consent, and the Company shall not settle any
Claim in a manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent; provided,
however, that neither the Company nor Indemnitee will
unreasonably withhold its consent to any proposed settlement and,
provided further, that if a claim is settled by the Indemnitee
with the Company's written consent, or if there be a final
judgment or decree for the plaintiff in connection with the Claim
by a court of competent jurisdiction, the Company shall indemnify
and hold harmless Indemnitee from and against any and all losses,
costs, expenses and liabilities incurred by reason of such
settlement or judgment.
(c) Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within
Indemnitee's power.
(d) Any indemnification provided for in Section 1 shall be made
no later than forty-five (45) days after receipt of the written
request of Indemnitee. If a Claim under this Agreement, under any
statute, or under any provision of the Company's Certificate of
Incorporation or Bylaws providing for indemnification, is not
paid in full by the Company within forty-five (45) days after a
written request for payment thereof has first been received by
the Company, Indemnitee may, but need not, at any time thereafter
bring an action against the Company to recover the unpaid amount
of the claim and, subject to Section 13 of this Agreement,
Indemnitee shall also be entitled to be reimbursed for the
expenses (including attorneys' fees) of bringing such action. It
shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection
with any action or proceeding in advance of its final
disposition) that Indemnitee has not met the standards of conduct
which make it permissible under applicable law for the Company to
indemnify Indemnitee for the amount claimed but the burden of
proving such defense shall be on the Company, and Indemnitee
shall be entitled to receive interim payments of expenses
pursuant to Subsection 4 unless and until such defense may be
finally adjudicated by court order or judgment from which no
further right of appeal exists. It is the parties' intention that
if the Company contests Indemnitee's right to indemnification,
the question of Indemnitee's right to indemnification shall be
for the court to decide, and neither the failure of the Company
(including its Board of Directors, any committee or subgroup of
the Board of Directors, independent legal counsel, or its
stockholders) to have made a determination that indemnification
of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by applicable
law, nor an actual determination by the Company (including its
Board of Directors, any committee or sub-group of the
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Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee
has or has not met the applicable standard of conduct.
(e) If, at the time of the receipt of a notice of a Claim, the
Company has director and officer liability insurance in effect,
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 the Indemnitee, all amounts payable as a result
of such proceeding in accordance with the terms of such policies.
6. Scope. Notwithstanding any other provision of this Agreement, the Company
hereby agrees to indemnify the Indemnitee against any Claim to the fullest
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the Company's
Certificate of Incorporation, the Company's Bylaws or by statute. In the event
of any change, after the date of this Agreement, in any applicable law, statute
or rule which expands the right of a Delaware corporation to indemnify a member
of its Board of Directors, an officer or other corporate agent, such changes
shall be, ipso facto, within the purview of Indemnitee's rights and Company's
obligations, under this Agreement. In the event of any change in any applicable
law, statute, or rule which narrows the right of a Delaware corporation to
indemnify a member of its Board of Directors, an officer, or other corporate
agent, such changes, to the extent not otherwise required by applicable law to
be applied to this Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder.
7. Partial Indemnification. If Indemnitee is entitled under a provision of
this Agreement to indemnification by the Company for some or a portion of the
expenses, judgments, fines or penalties actually or reasonably incurred by him
in the investigation, defense, appeal or settlement of any civil or criminal
action or proceeding, but not, however, for the total amount thereof; the
Company shall nevertheless indemnify Indemnitee for the portion of such
expenses, judgments, fines or penalties to which Indemnitee is entitled.
8. Public Policy. Both the Company and Indemnitee acknowledge that in certain
instances, Federal law or applicable public policy may prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise,
Indemnitee understands and acknowledges that the Company has undertaken or 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.
9. Insurance. Although the Company may from time to time maintain insurance
for the purpose of indemnifying Indemnitee and other agents of the Company
against personal liability, including costs of legal defense, nothing in this
Agreement shall obligate the Company to do so.
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10. No Restrictions. The rights and remedies of Indemnitee under this Agreement
shall not be deemed to exclude or impair any other rights or remedies to which
Indemnitee may be entitled under the Certificate of Incorporation or Bylaws of
the Company, or under any other agreement, provision of law or otherwise, nor
shall anything contained herein restrict the right of the Company to indemnify
Indemnitee in any proper case even though not specifically provided for in this
Agreement, nor shall anything contained herein restrict Indemnitee's right to
contribution as may be available under applicable law.
11. Termination. The Company may terminate this Agreement at any time upon 90
days written notice, but any such termination will not affect Claims relating to
events occurring prior to the effective date of termination.
12. Severability. Each of the provisions of this Agreement is a separate and
distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
13. Attorneys Fees. In the event of any litigation or other action or
proceeding to enforce or interpret this Agreement the prevailing party as
determined by the court shall be entitled to an award of its reasonable
attorneys fees and other costs, in addition to such relief as may be awarded by
a court or other tribunal.
14. Further Assurances. The parties will do, execute and deliver, or will cause
to be done, executed and delivered, all such further acts, documents and things
as may be reasonably required for the purpose of giving effect to this Agreement
and the transactions contemplated hereby.
15. Acknowledgment. The Company expressly acknowledges that it has entered into
this Agreement and assumed the obligations imposed on the Company hereunder in
order to induce Indemnitee to serve or to continue to serve as an agent of the
Company, and acknowledges that Indemnitee is relying on this Agreement in
serving or continuing to serve in such capacity.
16. Construction of Certain Phrases.
(a) "Company": For purposes of this Agreement, references to the
"Company" shall also include, in addition to the resulting
corporation in any consolidation or merger to which IMX Exchange,
Inc. is a party, any constituent corporation (including any
constituent of a constituent) absorbed in consolidation or merger
which, if its separate existence had continued, would have had
power and authority to indemnity its directors, officers,
employees or agents, so that if Indemnitee is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, 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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(b) Benefit Plans: References to "fines" contained in this
Agreement 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 or agent of the Company which
imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit
plan, its participants, or beneficiaries.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
18. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly
given (i) if delivered by hand and receipted for by the party
addressee, on the date of such receipt, or (ii) if mailed by domestic
certified or registered mail with postage prepaid, on the third
business day after the date postmarked. Addresses for notice to either
party are as shown on the signature page of this Agreement, or as
subsequently modified by written notice.
19. Governing Law Binding Effect Amendment.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware applicable to
contracts entered into in Delaware.
(b) This Agreement shall be binding upon Indemnitee and the
Company, their successors and assigns, and shall inure to the
benefit of Indemnitee, his heirs, personal representatives and
assigns and to the benefit of the Company, its successors and
assigns.
(c) No amendment, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"Company"
IMX Exchange, Inc.
a Delaware corporation
By:______________________________
Name:____________________________
Title:___________________________
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"Indemnitee"
_____________________________________
(Signature of Indemnitee)
Address:
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