Exhibit 10.32
[COMPANY LETTERHEAD]
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
February 20, 2003, by and among Xxxxxx Xxxxxxx Corporation, a Delaware
corporation (the "Company"), and Xx. Xxxxxxx X. Xxxxxxx (the "Indemnitee").
WHEREAS, the Indemnitee has been asked to serve on the Board of Directors
of the Company (the "Board");
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify persons serving as directors of
the Company to the fullest extent permitted by applicable law so that they will
serve or continue to serve as directors of the Company free from undue concern
that they will not be so indemnified;
WHEREAS, the Indemnitee is willing to serve and continue to serve on the
Board on the condition that he be so indemnified; and
WHEREAS, to the extent permitted by law, this Agreement is a supplement to
and in furtherance of the provisions of the Amended and Restated Certificate of
Incorporation of the Company (the "Certificate") and the provisions of the
Bylaws of the Company (the "Bylaws") or resolutions adopted pursuant thereto,
and shall not be deemed a substitute therefor, nor to diminish or abrogate any
rights of the Indemnitee thereunder;
NOW THEREFORE, in consideration of the premises and the covenants contained
herein, the Company and the Indemnitee do hereby covenant and agree as follows:
Section 1. Services by the Indemnitee. The Indemnitee agrees to continue to
serve at the request of the Company as a director of the Company (including,
without limitation, service on one or more committees of the Board).
Notwithstanding the foregoing, the Indemnitee may at any time and for any reason
resign from any such position.
Section 2. Indemnification - General. The Company shall indemnify, and
advance Expenses (as hereinafter defined) to, the Indemnitee as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may thereafter from
time to time permit. The rights of the Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set forth in the
other Sections of this Agreement.
Section 3. Proceedings Other Than Proceedings by or in the Right of the
Company. The Indemnitee shall be entitled to the rights of indemnification
provided in this Section 3 if, by
reason of his Corporate Status (as hereinafter defined), he is, or is threatened
to be made, a party to or participant in any threatened, pending or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right
of the Company. Pursuant to this Section 3, the Company shall indemnify the
Indemnitee against Expenses, judgments, penalties, fines and amounts paid in
settlement (as and to the extent permitted hereunder) actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal Proceeding, if he also had no
reasonable cause to believe his conduct was unlawful.
Section 4. Proceedings by or in the Right of the Company. The Indemnitee
shall be entitled to the rights of indemnification provided in this Section 4
if, by reason of his Corporate Status, he is, or is threatened to be made, a
party to or participant in any threatened, pending or completed Proceeding
brought by or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 4, the Company shall indemnify the Indemnitee against
Expenses actually and reasonably incurred by him or on his behalf in connection
with such Proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company.
Notwithstanding the foregoing, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which the
Indemnitee shall have been adjudged to be liable to the Company or if applicable
law prohibits such indemnification; provided, however, that if applicable law so
permits, indemnification against Expenses shall nevertheless be made by the
Company in such event if and to the extent that the court in which such
Proceeding shall have been brought or is pending, shall so determine.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful.
(a) To the extent that the Indemnitee is, by reason of his Corporate
Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, the Company shall indemnify the Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith. If the Indemnitee is not wholly successful in defense of any
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall
indemnify the Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each such claim, issue or matter as
to which the Indemnitee is successful, on the merits or otherwise. For purposes
of this Section 5(a), the term "successful, on the merits or otherwise," shall
include, but shall not be limited to, (i) the termination of any claim, issue or
matter in a Proceeding by withdrawal or dismissal, with or without prejudice,
(ii) termination of any claim, issue or matter in a Proceeding by any other
means without any express finding of liability or guilt against the Indemnitee,
with or without prejudice, (iii) the expiration of 120 days after the making of
a claim or threat of a Proceeding without the institution of the same and
without any promise or payment made to induce a settlement or (iv) the
settlement of any claim, issue or matter in a Proceeding pursuant to which the
Indemnitee pays less than $200,000. The provisions of this Section 5(a) are
subject to Section 5(b) below.
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(b) In no event shall the Indemnitee be entitled to indemnification
under Section 5(a) above with respect to a claim, issue or matter to the extent
(i) applicable law prohibits such indemnification, or (ii) an admission is made
by the Indemnitee in writing to the Company or in such Proceeding or a final,
nonappealable determination is made in such Proceeding that the standard of
conduct required for indemnification under this Agreement has not been met with
respect to such claim, issue or matter.
Section 6. Indemnification for Expenses as a Witness. Notwithstanding any
provisions herein to the contrary, to the extent that the Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, the Company shall
indemnify the Indemnitee against all Expenses actually and reasonably incurred
by or on behalf of the Indemnitee in connection therewith.
Section 7. Advancement of Expenses. The Company shall advance all
reasonable Expenses incurred by or on behalf of the Indemnitee in connection
with any Proceeding within 10 days after the receipt by the Company of a
statement or statements from the Indemnitee requesting such advance or advances
from time to time, whether prior to or after the final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by or on behalf of the Indemnitee. The Indemnitee hereby expressly
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined by a final, non-appealable adjudication or
arbitration decision that the Indemnitee is not entitled to be indemnified
against such Expenses. All amounts advanced to the Indemnitee by the Company
pursuant to this Section 7 shall be without interest. The Company shall make all
advances pursuant to this Section 7 without regard to the financial ability of
the Indemnitee to make repayment, without bond or other security and without
regard to the prospect of whether the Indemnitee may ultimately be found to be
entitled to indemnification under the provisions of this Agreement. Any required
reimbursement of Expenses by the Indemnitee shall be made by the Indemnitee to
the Company within 10 days following the entry of the final, non-appealable
adjudication or arbitration decision pursuant to which it is determined that the
Indemnitee is not entitled to be indemnified against such Expenses.
Section 8. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, the Indemnitee
shall submit to the Company a written request therefor, along with such
documentation and information as is reasonably available to the Indemnitee and
reasonably necessary to determine whether and to what extent the Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that
the Indemnitee has requested indemnification.
(b) Upon written request by the Indemnitee for indemnification
pursuant to the first sentence of Section 8(a) hereof, a determination, if
required by applicable law, with respect to the Indemnitee's entitlement thereto
shall be made in the specific case: (i) by the Board by a majority vote of a
quorum consisting of Disinterested Directors (as hereinafter defined); or (ii)
if a quorum of the Board consisting of Disinterested Directors is not obtainable
or, even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel (as hereinafter defined), as selected pursuant to Section
8(d), in a written opinion to the
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Board (which opinion may be a "more likely than not" opinion), a copy of which
shall be delivered to the Indemnitee. If it is so determined that the Indemnitee
is entitled to indemnification, the Company shall make payment to the Indemnitee
within 10 days after such determination. The Indemnitee shall cooperate with the
Person or Persons making such determination with respect to the Indemnitee's
entitlement to indemnification, including providing to such Person or Persons
upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to the Indemnitee and reasonably necessary to such determination.
Subject to the provisions of Section 10 hereof, any costs or expenses (including
reasonable attorneys' fees and disbursements) incurred by the Indemnitee in so
cooperating with the Person or Persons making such determination shall be borne
by the Company, and the Company hereby agrees to indemnify and hold the
Indemnitee harmless therefrom.
(c) Notwithstanding the foregoing, if a Change of Control has
occurred, the Indemnitee may require a determination with respect to the
Indemnitee's entitlement to indemnification to be made by Independent Counsel,
as selected pursuant to Section 8(d), in a written opinion to the Board (which
opinion may be a "more likely than not" opinion), a copy of which shall be
delivered to the Indemnitee.
(d) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 8(b) or (c) hereof, the
Independent Counsel shall be selected as provided in this Section 8(d). If a
Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board (including a vote of a majority of the Disinterested
Directors if obtainable), and the Company shall give written notice to the
Indemnitee advising him of the identity of the Independent Counsel so selected.
If a Change of Control shall have occurred, the Independent Counsel shall be
selected by the Indemnitee (unless the Indemnitee shall request that such
selection be made by the Board, in which event the preceding sentence shall
apply), and approved by the Company (which approval shall not be unreasonably
withheld). If (i) an Independent Counsel is to make the determination of
entitlement pursuant to Section 8(b) or (c) hereof, and (ii) within 20 days
after submission by the Indemnitee of a written request for indemnification
pursuant to Section 8(a) hereof, no Independent Counsel shall have been
selected, either the Company or the Indemnitee may petition the appropriate
court of the State (as hereafter defined) or other court of competent
jurisdiction for the appointment as Independent Counsel of a Person selected by
such court or by such other Person as such court shall designate. The Company
shall pay any and all reasonable fees and expenses of Independent Counsel
incurred by such Independent Counsel in connection with acting pursuant to
Section 8(b) or (c) hereof, and the Company shall pay all reasonable fees and
expenses incident to the procedures of this Section 8(d), regardless of the
manner in which such Independent Counsel was selected or appointed. Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section
10(a)(iv) of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
Section 9. Presumptions and Effect of Certain Proceedings; Construction of
Certain Phrases.
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(a) In making a determination with respect to whether the Indemnitee
is entitled to indemnification hereunder, the Reviewing Party making such
determination shall presume that the Indemnitee is entitled to indemnification
under this Agreement if the Indemnitee has submitted a request for
indemnification in accordance with Section 8(a) of this Agreement, and anyone
seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion, by clear and convincing evidence.
(b) Subject to the terms of Section 16 below, the termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of the Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(c) For purposes of any determination of the Indemnitee's entitlement
to indemnification under this Agreement or otherwise, the Indemnitee shall be
deemed to have acted in good faith and in a manner he reasonably believe to be
in or not opposed to the best interests of the Company, and, with respect to a
criminal Proceeding, to have also had no reasonable cause to believe his conduct
was unlawful, if the Indemnitee's action is based on the records or books of
account of the Company or another enterprise, including financial statements, or
on information supplied to the Indemnitee by the officers of the Company or
another enterprise in the course of their duties, or on the advice of legal or
financial counsel for the Company or the Board (or any committee thereof) or for
another enterprise or its board of directors (or any committee thereof), or on
information or records given or reports made by an independent certified public
accountant or by an appraiser or other expert selected by the Company or the
Board (or any committee thereof) or by another enterprise or its board of
directors (or any committee thereof). For purposes of this Section 9(c), the
term "another enterprise" means any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise of which the Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent. The provisions of this
Section 9(c) shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed or found to have met
the applicable standard of conduct set forth in this Agreement. In addition, the
knowledge and/or actions, or failure to act, of any other director, trustee,
partner, managing member, fiduciary, officer, agent or employee of the Company
shall not be imputed to the Indemnitee for purposes of determining the right to
indemnification under this Agreement. Whether or not the foregoing provisions of
this Section 9(c) are satisfied, it shall in any event be presumed that the
Indemnitee has acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company, and, with respect to a
criminal Proceeding, that he also had no reasonable cause to believe his conduct
was unlawful. Anyone seeking to overcome this presumption shall have the burden
of proof and the burden of persuasion, by clear and convincing evidence.
(d) For purposes of this Agreement, references to "fines" shall
include any excise taxes assessed on the Indemnitee with respect to an employee
benefit plan; references to "serving at the request of the Company" shall
include, but shall not be limited to, any service as a
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director, officer, employee or agent of the Company which imposes duties on, or
involves services by, the Indemnitee with respect to an employee benefit plan,
its participants or its beneficiaries; and if the Indemnitee has acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, he shall be deemed
to have acted in a manner "not opposed to the best interests of the Company" as
used in this Agreement. The provisions of this Section 9(d) shall not be deemed
to be exclusive or to limit in any way the other circumstances in which the
Indemnitee may be deemed or found to have met the applicable standard of conduct
set forth in this Agreement.
Section 10. Remedies of the Indemnitee.
(a) In the event that (i) a determination is made pursuant to
Section 8 of this Agreement that the Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 7 of this Agreement, (iii) the determination of
entitlement to indemnification is to be made by the Board pursuant to Section
8(b) of this Agreement and such determination shall not have been made and
delivered to the Indemnitee in writing within twenty (20) days after receipt by
the Company of the request for indemnification, (iv) the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to
Section 8(b) or (c) of this Agreement and such determination shall not have been
made in a written opinion to the Board and a copy delivered to the Indemnitee
within forty-five (45) days after receipt by the Company of the request for
indemnification, (v) payment of indemnification is not made pursuant to Section
6 of this Agreement within 10 days after receipt by the Company of a written
request therefor or (vi) payment of indemnification is not made within 10 days
after a determination has been made that the Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 8 or 9 of this Agreement, the Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of his entitlement to such
indemnification or advancement of Expenses. Alternatively, the Indemnitee, at
his sole option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association. The
Indemnitee shall commence such Proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which the Indemnitee first has
the right to commence such Proceeding pursuant to this Section 10(a); provided,
however, that the foregoing clause shall not apply in respect of a Proceeding
brought by the Indemnitee to enforce his rights under Section 5 of this
Agreement.
(b) In the event that a determination is made pursuant to Section 8
of this Agreement that the Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section 10 shall
be conducted in all respects as a de novo trial or a de novo arbitration (as
applicable) on the merits, and the Indemnitee shall not be prejudiced by reason
of that adverse determination. In any judicial proceeding or arbitration
commenced pursuant to this Section 10, the Company shall have the burden of
proving that the Indemnitee is not entitled to indemnification, and the Company
shall be precluded from referring to or offering into evidence a determination
made pursuant to Section 8 of this Agreement that is adverse to the Indemnitee's
right to indemnification. If the Indemnitee commences a judicial proceeding or
arbitration pursuant to this Section 10, the Indemnitee shall not be required to
reimburse the Company for any advances pursuant to Section 7 until a final
determination is
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made with respect to the Indemnitee's entitlement to indemnification (as to
which rights of appeal have been exhausted or lapsed).
(c) If a determination is made or deemed to have been made pursuant
to Section 8 or 9 of this Agreement that the Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 10, absent
(i) a misstatement by the Indemnitee of a material fact, or an omission by the
Indemnitee of a material fact necessary to make the Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 10 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all of the provisions of this Agreement.
(e) In the event that the Indemnitee, pursuant to this Section 10,
seeks a judicial adjudication or an award in arbitration to enforce his rights
under, or to recover damages for breach of, this Agreement, the Indemnitee shall
be entitled to recover from the Company, and shall be indemnified by the Company
against, any and all Expenses actually and reasonably incurred by him in such
judicial adjudication or arbitration, unless the court or arbitrator determines
that each of the Indemnitee's claims in such Proceeding were made in bad faith
or were frivolous. In the event that a Proceeding is commenced by or in the
right of the Company against the Indemnitee to enforce or interpret any of the
terms of this Agreement, the Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses
actually and reasonably incurred by him in such Proceeding (including with
respect to any counter-claims or cross-claims made by the Indemnitee against the
Company in such Proceeding), unless the court or arbitrator determines that each
of the Indemnitee's material defenses in such Proceeding were made in bad faith
or were frivolous.
(f) Any judicial adjudication or arbitration determined under this
Section 10 shall be final and binding on the parties.
Section 11. Defense of Certain Proceedings. In the event the Company shall
be obligated under this Agreement to pay the Expenses of any Proceeding against
the Indemnitee in which the Company is a co-defendant with the Indemnitee, the
Company shall be entitled to assume the defense of such Proceeding, with counsel
approved by the Indemnitee, which approval shall not be unreasonably withheld,
upon the delivery to the Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by the Indemnitee and
the retention of such counsel by the Company, the Indemnitee shall nevertheless
be entitled to employ or continue to employ his own counsel in such Proceeding.
Employment of such counsel by the Indemnitee shall be at the cost and expense of
the Company unless and until the Company shall have demonstrated to the
reasonable satisfaction of the Indemnitee and the Indemnitee's counsel that
there is complete identity of issues and defenses and no conflict of interest
between the Company and the Indemnitee in such Proceeding, after which time
further employment of such counsel by the Indemnitee shall be at the cost and
expense of the Indemnitee. In all events, if the Company shall not, in fact,
have timely employed counsel to
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assume the defense of such Proceeding, then the fees and Expenses of the
Indemnitee's counsel shall be at the cost and expense of the Company.
Section 12. Exception to Right of Indemnification or Advancement of
Expenses. Notwithstanding any other provision of this Agreement, the Indemnitee
shall not be entitled to indemnification or advancement of Expenses under this
Agreement with respect to any Proceeding, or any claim therein, brought or made
by the Indemnitee against:
(a) the Company, except for (i) any claim or Proceeding in respect
of this Agreement and/or the Indemnitee's rights hereunder, (ii) any claim or
Proceeding to establish or enforce a right to indemnification under any statute
or law and (iii) any counter-claim or cross-claim brought or made by him against
the Company in any Proceeding brought by or in the right of the Company against
him; or
(b) any other Person, except for Proceedings or claims approved by
the Board.
Section 13. Contribution.
(a) If, with respect to any Proceeding, the indemnification
provided for in this Agreement is held by a court of competent jurisdiction to
be unavailable to the Indemnitee for any reason other than that the Indemnitee
did not act in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to a criminal
Proceeding, that the Indemnitee had reasonable cause to believe his conduct was
unlawful, the Company shall contribute to the amount of Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by the Indemnitee or on his behalf in connection with such Proceeding or any
claim, issue or matter therein in such proportion as is appropriate to reflect
the relative benefits received by the Indemnitee and the relative fault of the
Indemnitee versus the other defendants or participants in connection with the
action or inaction which resulted in such Expenses, judgments, penalties, fines
and amounts paid in settlement, as well as any other relevant equitable
considerations.
(b) The Company and the Indemnitee agree that it would not be just
and equitable if contribution pursuant to this Section 13 were determined by pro
rata or per capita allocation or by any other method of allocation which does
not take into account the equitable considerations referred to in Section 13(a)
above.
(c) No Person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any Person who was not found guilty of such fraudulent
misrepresentation.
Section 14. Officer and Director Liability Insurance.
(a) The Company shall use all commercially reasonable efforts to
obtain and maintain in effect during the entire period for which the Company is
obligated to indemnify the Indemnitee under this Agreement, one or more policies
of insurance with reputable insurance companies to provide the directors and
officers of the Company with coverage for losses from wrongful acts and
omissions and to ensure the Company's performance of its indemnification
obligations under this Agreement. In all such insurance policies, the Indemnitee
shall be named
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as an insured in such a manner as to provide the Indemnitee with the same rights
and benefits as are accorded to the most favorably insured of the Company's
directors and officers. Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain such insurance if the Company determines in
good faith that the Indemnitee is covered by such insurance maintained by a
subsidiary or parent of the Company.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors or officers of any other
corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise which the Indemnitee serves at the
request of the Company, the Indemnitee shall be named as an insured under and
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available for the most favorably
insured director or officer under such policy or policies.
(c) In the event that the Company is a named insured under any
policy or policies of insurance referenced in either Section 14(a) or (b) above,
the Company hereby covenants and agrees that it will not settle any claims or
Proceedings that may be covered by such policy or policies of insurance and in
which the Indemnitee has or may incur Expenses, judgments, penalties, fines or
amounts paid in settlement without the prior written consent of the Indemnitee.
Section 15. Security. Upon reasonable request by the Indemnitee, the
Company shall provide security to the Indemnitee for the Company's obligations
hereunder through an irrevocable bank letter of credit, funded trust or other
similar collateral. Any such security, once provided to the Indemnitee, may not
be revoked or released without the prior written consent of the Indemnitee,
which consent may be granted or withheld at the Indemnitee's sole and absolute
discretion.
Section 16. Settlement of Claims. The Company shall not be liable to
indemnify the Indemnitee under this Agreement for any amounts paid in settlement
of any Proceeding effected without the Company's written consent, which consent
shall not be unreasonably withheld.
Section 17. Duration of Agreement. This Agreement shall be unaffected by
the termination of the Corporate Status of the Indemnitee and shall continue for
so long as the Indemnitee may have any liability or potential liability by
virtue of his Corporate Status, including, without limitation, the final
termination of all pending Proceedings in respect of which the Indemnitee is
granted rights of indemnification or advancement of Expenses hereunder and of
any Proceeding commenced by the Indemnitee pursuant to Section 10 of this
Agreement relating thereto, whether or not he is acting or serving in such
capacity at the time any liability or Expense is incurred for which
indemnification can be provided under this Agreement. 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 or assets of the Company), assigns, spouses,
heirs, executors and personal and legal representatives.
Section 18. Remedies of the Company. The Company hereby covenants and
agrees to submit any and all disputes relating to this Agreement that the
parties are unable to resolve
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between themselves to binding arbitration pursuant to the rules of the American
Arbitration Association and waives all rights to judicial adjudication of any
matter or dispute relating to this Agreement except where judicial adjudication
is requested or required by the Indemnitee.
Section 19. Covenant Not to Xxx, Limitation of Actions and Release of
Claims. No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Company (or any of its subsidiaries) against the
Indemnitee, his spouse, heirs, executors, personal representatives or
administrators after the expiration of two (2) years from the date on which the
Corporate Status of the Indemnitee is terminated (for any reason), and any claim
or cause of action of the Company (or any of its subsidiaries) shall be
extinguished and deemed released unless asserted by filing of a legal action
within such two-year period; provided, however, that the foregoing shall not
apply to any action or cause of action brought or asserted by the Company
pursuant to or in respect of this Agreement and shall not constitute a waiver or
release of any of the Company's rights under this Agreement.
Section 20. Limitation of Liability. Notwithstanding any other provision of
this Agreement, neither party shall have any liability to the other for, and
neither party shall be entitled to recover from the other, any consequential,
special, punitive, multiple or exemplary damages as a result of a breach of this
Agreement.
Section 21. Subrogation. In the event of any 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
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.
Section 22. No Multiple Recovery. The Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if and to the extent that the Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
Section 23. Definitions. For purposes of this Agreement:
(a) "Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. For purposes hereof, "control" (including, with correlative
meaning, the terms "controlling", "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of management and policies of such Person, by contract or
otherwise.
(b) "Change of Control" shall mean a change in control of the
Company occurring after the date of this Agreement 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 Exchange Act, whether or not the Company is then subject
to such reporting requirement. Without limiting the foregoing, such a Change in
Control shall be deemed to have occurred if, after the date of this Agreement,
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the
10
"beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing 20% or
more of the combined voting power of the Company's then outstanding securities
entitled to vote generally in the election of directors without the prior
approval of at least two-thirds of the members of the Board in office
immediately prior to such person attaining such percentage interest; (ii) the
Company is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board in office immediately prior to such transaction or event constitute less
than a majority of the Board thereafter; (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board (including for this purpose any new director whose election or
nomination for election by the Company's shareholders was approved by a vote of
at least two-thirds of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board; or (iv) approval by the shareholders of the Company of a
liquidation or dissolution of the Company.
(c) "Company" means Xxxxxx Xxxxxxx Corporation, a Delaware
corporation.
(d) "Corporate Status" describes the status of an individual who is or
was an officer or director of the Company, or is or was serving at the request
of the Company as an officer, director, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise.
(e) "Disinterested Director" means a director of the Company who is
not and was not a party to, or otherwise involved in, the Proceeding for which
indemnification is sought by the Indemnitee.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(g) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating or being or preparing to be a witness in a
Proceeding.
(h) "Independent Counsel" means a law firm or a member of a law firm
that is experienced in matters of corporation law and neither presently is, nor
in the past five (5) years has been, retained to represent: (i) the Company or
the Indemnitee in any matter material to either such party or (ii) any other
party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall 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 the Indemnitee in an action to determine the Indemnitee's rights under this
Agreement.
(i) "Person" means a natural person, firm, partnership, joint venture,
association, corporation, company, limited liability company, trust, business
trust, estate or other entity.
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(j) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative.
(k) "State" means the State of Texas.
Section 24. Non-Exclusivity. The Indemnitee's rights of indemnification and
to receive advancement of Expenses as provided by this Agreement shall not be
deemed exclusive of any other rights to which the Indemnitee may at any time be
entitled under applicable law, the Certificate, the Bylaws, any agreement, a
vote of stockholders, a resolution of directors or otherwise.
Section 25. Remedies Not Exclusive. No right or remedy herein conferred
upon the Indemnitee is intended to be exclusive of any other right or remedy,
and every other right or remedy shall be cumulative of and in addition to the
rights and remedies given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy of the
Indemnitee hereunder or otherwise shall not be deemed an election of remedies on
the part of the Indemnitee and shall not prevent the concurrent assertion or
employment of any other right or remedy by the Indemnitee.
Section 26. Changes in Law. In the event that a change in applicable law
after the date of this Agreement, whether by statute, rule or judicial decision,
expands or otherwise increases the right or ability of a Delaware corporation to
indemnify a member of its board of directors or an officer, the Indemnitee
shall, by this Agreement, enjoy the greater benefits so afforded by such change.
In the event that a change in applicable law after the date of this Agreement,
whether by statute, rule or judicial decision, narrows or otherwise reduces the
right or ability of a Delaware corporation to indemnify a member of its board of
directors or an officer, such change shall have no effect on this Agreement or
any of the Indemnitee's rights hereunder, except and only to the extent required
by law.
Section 27. Interpretation of Agreement. The Company and the Indemnitee
acknowledge and agree that it is their intention that this Agreement be
interpreted and enforced so as to provide indemnification to the Indemnitee to
the fullest extent now or hereafter permitted by law.
Section 28. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of
this agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; (b) such
provision or provisions will be deemed reformed to the extent necessary to
conform to applicable law and to give maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision or
provisions held invalid, illegal or unenforceable.
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Section 29. Governing Law; Jurisdiction and Venue; Specific Performance.
(a) The parties agree that this Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware without giving effect to any choice or conflict of law provision or
rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware.
(b) ANY "ACTION OR PROCEEDING" (AS SUCH TERM IS DEFINED BELOW)
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE FILED IN AND LITIGATED OR
ARBITRATED SOLELY BEFORE THE COURTS LOCATED IN OR ARBITRATORS SITTING IN XXXXXX
COUNTY IN THE STATE OF TEXAS, AND EACH PARTY TO THIS AGREEMENT: (i) GENERALLY
AND UNCONDITIONALLY ACCEPTS THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS
AND ARBITRATORS AND VENUE THEREIN, AND WAIVES TO THE FULLEST EXTENT PROVIDED BY
LAW ANY DEFENSE OR OBJECTION TO SUCH JURISDICTION AND VENUE BASED UPON THE
DOCTRINE OF "FORUM NON CONVENIENS;" AND (ii) GENERALLY AND UNCONDITIONALLY
CONSENTS TO SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY DELIVERY OF
CERTIFIED OR REGISTERED MAILING OF THE SUMMONS AND COMPLAINT IN ACCORDANCE WITH
THE NOTICE PROVISIONS OF THIS AGREEMENT. FOR PURPOSES OF THIS SECTION, THE TERM
"ACTION OR PROCEEDING" IS DEFINED AS ANY AND ALL CLAIMS, SUITS, ACTIONS,
HEARINGS, ARBITRATIONS OR OTHER SIMILAR PROCEEDINGS, INCLUDING APPEALS AND
PETITIONS THEREFROM, WHETHER FORMAL OR INFORMAL, GOVERNMENTAL OR
NON-GOVERNMENTAL, OR CIVIL OR CRIMINAL. THE FOREGOING CONSENT TO JURISDICTION
SHALL NOT CONSTITUTE GENERAL CONSENT TO SERVICE OF PROCESS IN THE STATE FOR ANY
PURPOSE EXCEPT AS PROVIDED ABOVE, AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON
ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT.
(c) The Company acknowledges that the Indemnitee may, as a result
of the Company's breach of its covenants and obligations under this Agreement,
sustain immediate and long-term substantial and irreparable injury and damage
which cannot be reasonably or adequately compensated by damages at law.
Consequently, the Company agrees that the Indemnitee shall be entitled, in the
event of the Company's breach or threatened breach of its covenants and
obligations hereunder, to obtain equitable relief from a court of competent
jurisdiction, including enforcement of each provision of this Agreement by
specific performance and/or temporary, preliminary and/or permanent injunctions
enforcing any of the Indemnitee's rights, requiring performance by the Company,
or enjoining any breach by the Company, all without proof of any actual damages
that have been or may be caused to the Indemnitee by such breach or threatened
breach and without the posting of bond or other security in connection
therewith. The Company waives the claim or defense therein that the Indemnitee
has an adequate remedy at law, and the Company shall not allege or otherwise
assert the legal position that any such remedy at law exists. The Company agrees
and acknowledges that: (i) the terms of this Section 29(c) are fair, reasonable
and necessary to protect the legitimate interests of the Indemnitee; (ii) this
waiver is a material inducement to the Indemnitee to enter into the
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transactions contemplated hereby; and (iii) the Indemnitee relied upon this
waiver in entering into this Agreement and will continue to rely on this waiver
in its future dealings with the Company. The Company represents and warrants
that it has reviewed this provision with its legal counsel, and that it has
knowingly and voluntarily waived its rights referenced in this Section 29
following consultation with such legal counsel.
Section 30. Nondisclosure of Payments. Except as expressly required by
Federal securities laws, the Company shall not disclose any payments under this
Agreement without the prior written consent of the Indemnitee. Any payments to
the Indemnitee that must be disclosed shall, unless otherwise required by law,
be described only in the Company proxy or information statements relating to
special and/or annual meetings of the Company's shareholders, and the Company
shall afford the Indemnitee a reasonable opportunity to review all such
disclosures and, if requested by the Indemnitee, to explain in such statement
any mitigating circumstances regarding the events reported.
Section 31. Notice by the Indemnitee. The Indemnitee agrees to promptly
notify the Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder.
Section 32. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (a) delivered by hand and received for by the party to whom said
notice or other communication shall have been directed, or (b) mailed by U.S.
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed: (i) If to the Company: Xxxxxx Xxxxxxx
Corporation, 0000 Xxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention:
President; and (ii) if to any other party hereto, including the Indemnitee, to
the address of such party set forth on the signature page hereof; or to such
other address as may have been furnished by any party to the other(s), in
accordance with this Section 32.
Section 33. Modification and Waiver. No supplement, modification or
amendment of this Agreement or any provision hereof shall limit or restrict in
any way any right of the Indemnitee under this Agreement with respect to any
action taken or omitted by the Indemnitee in his Corporate Status prior to such
supplement, modification or amendment. No supplement, modification or amendment
of this Agreement or any provision hereof shall be binding unless executed in
writing by both of the Company and the Indemnitee. No waiver of any provision of
this Agreement shall be deemed or shall constitute a wavier of any other
provision hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
Section 34. Headings. The headings of the Sections or paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
Section 35. Gender. Use of the masculine pronoun in this Agreement shall be
deemed to include usage of the feminine pronoun where appropriate.
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Section 36. Identical Counterparts. This Agreement may be executed in one
or more counterparts (whether by original, photocopy or facsimile signature),
each of which shall for all purposes be deemed to be an original, but all of
which together shall constitute one and the same Agreement. Only one such
counterpart executed by the party against whom enforcement is sought must be
produced to evidence the existence of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
ATTEST: XXXXXX XXXXXXX CORPORATION
By:___________________________ By:_____________________________
Name: ________________________ Name: Xxxxx Xxxx
Title: ________________________ Title: Director
INDEMNITEE
_________________________________
Name: Xxxxxxx X. Xxxxxxx
Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
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