EXHIBIT 4.18
FORM OF
JOINT AND SEVERAL INDEMNITY AGREEMENT
This Joint and Several Indemnity Agreement (this "Agreement") is made as
of ___________ by and between Xxxxx Xxxxxx Industries N.V., a company
incorporated under the laws of The Netherlands with its corporate seat at
Amsterdam, The Netherlands, ("Parent"), and Xxxxx Xxxxxx Building Products Inc,
a corporation formed under the laws of the State of Nevada and a wholly-owned
subsidiary of Parent ("Corporation" and together with Parent, the "Indemnitors")
on the one hand, and _____________ (the "Indemnitee"), on the other.
RECITALS
The Indemnitee is an employee or agent of the Corporation and/or an
Affiliate Indemnitee (as hereinafter defined). Each of the Indemnitors and the
Indemnitee recognize the increased risk of litigation and other claims being
asserted against employees or agents of public companies in today's environment.
The Articles of Association of Parent and the Certificate of Incorporation
and Bylaws of Corporation (collectively, the "Charter Documents") permit the
Indemnitors to indemnify their respective employees and agents as currently
provided therein. The Charter Documents permit the Indemnitors to furnish
similar protection or make other arrangements (any such protection or
arrangement, an "Indemnification Arrangement") on behalf of the Indemnitee
against personal liability (including, but not limited to, providing for
Advanced Amounts as hereinafter defined) asserted against him or incurred by or
on behalf of him in such capacity as an employee or agent of such Indemnitor or
as an Affiliate Indemnitee, or arising out of his status as such, whether or not
such Indemnitor would have the power to indemnify him against such liability
under the provisions of this Agreement or under applicable law, (including Title
7 of the Nevada Revised Statutes hereinafter the "General Corporation Law") as
it may then be in effect.
In part to provide the Indemnitee with specific contractual assurance of
substantial protection against personal liability (regardless of, among other
things, any amendment to or revocation of the aforementioned provisions of any
of the Indemnitor's Charter Documents or any change in the composition of such
Indemnitor's Board of Directors [in respect of Parent such term refers to its
Joint Board, Managing Board or Supervisory Board] or control of such
Indemnitor), each of the Indemnitors desires to enter into this Agreement. The
General Corporation Law expressly recognizes that the indemnification provisions
of the General Corporation Law are not exclusive of any other rights to which a
person seeking indemnification may be entitled under the Charter Documents, or
any other agreement providing for indemnification, or a resolution of
stockholders or directors, or otherwise, and the Charter Documents of the
Indemnitors expressly recognize that the indemnification provisions of the
Charter Documents shall not be deemed exclusive of, and shall not affect, any
other rights to which a person seeking indemnification may be entitled under any
agreement.
In order to induce the Indemnitee to serve as an employee and/or agent of
the Corporation and in consideration of the Indemnitee's so serving, each of the
Indemnitors desires jointly and severally to hold harmless and indemnify the
Indemnitee and to make arrangements
pursuant to which the Indemnitee may be advanced or reimbursed expenses incurred
by the Indemnitee in certain proceedings, in every case to the fullest extent
authorized or permitted by the General Corporation Law, or any other applicable
law, the Charter Documents, or by any amendment thereof or other statutory
provisions authorizing or permitting such indemnification which are adopted
after the date hereof (but, in the case of any such amendment, only to the
extent that such amendment permits the Indemnitor to provide broader
indemnification rights than the General Corporation Law, or other applicable
law, or the Charter Documents, permitted such Indemnitor to provide prior to
such amendment).
NOW, THEREFORE, in consideration of the foregoing recitals and of the
Indemnitee's willingness to serve the Corporation as an employee and/or agent,
the parties agree as follows:
1. Service by the Indemnitee. The Indemnitee shall serve and continue to
serve as an employee and/or agent of the Corporation so long as he is retained
in such capacity or until such time as he tenders his resignation in writing.
Subject to any other contractual obligation or other obligation imposed by
operation of law, the Indemnitee may at any time and for any reason resign from
such position. If the Indemnitee serves in any other capacity with respect to
either Indemnitor or any Affiliate Indemnitor (as hereinafter defined), nothing
in this Agreement will confer upon the Indemnitee the right to continue in the
employ of either Indemnitor or the Affiliate Indemnitor or affect the right of
either Indemnitor or the Affiliate Indemnitor to terminate the Indemnitee's
employment at any time in the sole discretion of such Indemnitor and/or the
Affiliate Indemnitor, with or without cause.
2. Indemnification. (a) To the fullest extent permitted by applicable law
in effect on the date hereof or as such laws may from time to time be amended
and by the Charter Documents, each of the Indemnitors, jointly and severally,
shall hold harmless and indemnify the Indemnitee, his executors, administrators
or assigns against any and all expenses, liabilities and losses (including,
without limitation, investigation expenses, expert witnesses' and attorneys'
fees and expenses, judgments, penalties, fines, amounts paid or to be paid in
settlement, any interest, assessments, or other charges imposed thereon and any
federal, state, local or foreign taxes imposed as a result of actual or deemed
receipt of any payment hereunder) actually and reasonably incurred by the
Indemnitee (net of any related insurance proceeds or other amounts received by
the Indemnitee or paid by or on behalf of an Indemnitor on the Indemnitee's
behalf in compensation of such expenses, liabilities or losses) in connection
with any actual or threatened action, suit or proceeding, whether civil,
criminal, administrative or investigative or in arbitration, to which the
Indemnitee is a party or participant or is threatened to be made a party or
participant (a "Proceeding"), as a plaintiff, defendant, respondent, witness or
otherwise, based upon, arising from, relating to or by reason of the fact that
the Indemnitee: (1) is, was, shall be or shall have been an employee and/or
agent of an Indemnitor or (2) is or was serving, shall serve, or shall have
served at the request of an Indemnitor as a director, officer, partner, trustee,
fiduciary, employee or agent ("Affiliate Indemnitee") of another foreign or
domestic corporation or non-profit corporation, cooperative, partnership, joint
venture, trust, employee benefit plan, or other incorporated or unincorporated
enterprise (each, an "Affiliate Indemnitor") or arising from or relating to any
action or omission to act taken by the Indemnitee in any of the foregoing
capacities; provided, however, that, except as provided in Section 10(c) or (d)
hereof, an Indemnitor shall indemnify the Indemnitee in connection with a
Proceeding initiated by the
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Indemnitee only if such proceeding (or part thereof) was authorized by a
two-thirds vote of the Board of Directors of such Indemnitor.
(b) The Indemnitee shall be presumed to be entitled to such
indemnification under this Agreement upon submission of a written claim pursuant
to Section 8 hereof. Thereafter, the Indemnitors shall have the burden of proof
to overcome the presumption that the Indemnitee is so entitled. Such presumption
shall only be overcome by a judgment or other final adjudication, after all
appeals and all time for appeals has expired ("Final Determination"), which is
adverse to the Indemnitee and which establishes that the Indemnitee is not
entitled to any indemnity pursuant to Section 2 (e) hereof.
(c) The termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement (with or without court approval),
conviction or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself create a
presumption that Indemnitee is not entitled to indemnification or otherwise
adversely affect the rights of the Indemnitee to indemnification except as may
be provided herein.
(d) If the Indemnitee is not wholly successful in 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 Indemnitors agree, jointly and
severally, to indemnify the Indemnitee to the maximum extent permitted by law
against all losses and expenses incurred by the Indemnitee in connection with
each successfully resolved claim, issue or matter. For purposes of this section
and without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal with or without prejudice shall be deemed to be a
successful result as to such claim, issue or matter. Neither the failure of any
of the Indemnitors (including their respective Boards of Directors, legal
counsel or stockholders) to have made a determination prior to the commencement
of such Proceeding that indemnification of the Indemnitee is proper in the
circumstances because such person has met the applicable standard of conduct,
nor an actual determination by such Indemnitor (including its Board of
Directors, its legal counsel or its stockholders) that the Indemnitee has not
met the applicable standard of conduct, shall be a defense to the action or
create a presumption that the Indemnitee has not met the applicable standard of
conduct. The purchase, establishment or maintenance of any Indemnification
Arrangement shall not in any way diminish, restrict, limit or adversely affect
the rights and obligations of any of the Indemnitors or of the Indemnitee under
this Agreement, except as expressly provided herein, and the execution and
delivery of this Agreement by the Indemnitors and the Indemnitee shall not in
any way diminish, restrict, limit or adversely affect the Indemnitee's right to
indemnification from the Indemnitors or any other party or parties under any
other Indemnification Arrangement, the Charter Documents of any of the
Indemnitors, or applicable law.
(e) No indemnity pursuant to this Agreement shall be paid by the
Indemnitors:
(i) in respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
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(ii) on account of any suit in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of Parent pursuant to the provisions of Section 16(b)
of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any applicable federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged
to have been knowingly fraudulent or deliberately dishonest, or to constitute
willful misconduct; or
(iv) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in this
respect, both the Indemnitors and the Indemnitee have been advised that the
Securities and Exchange Commission believes that (a) indemnification for
liabilities arising under the federal securities laws is against public policy
and is, therefore, unenforceable and (b) claims for indemnification should be
submitted to the appropriate court for adjudication).
3. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
status as a director, officer, employee or agent or fiduciary of an Indemnitor
or an Affiliate Indemnitor, a witness in any Proceeding to which Indemnitee is
not a party, he shall be indemnified by the Indemnitors against all expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.
4. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of an Indemnitor or any affiliate of an
Indemnitor against the Indemnitee, Indemnitee's spouse, heirs, executors, or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, or such longer period as may be
required by applicable law under the circumstances. Any claim or cause of action
of the Indemnitor or its affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action the shorter period shall govern.
5. Claims for Payments. (a) Notwithstanding any other provision of this
Agreement, to the extent allowed by applicable law, the Indemnitee shall have
the right to receive from the Indemnitors on demand or, at his option, to have
any of the Indemnitors pay promptly on his behalf, in advance of a Final
Determination of a Proceeding, all amounts payable by the Indemnitors pursuant
to the terms of this Agreement as corresponding amounts are expended or incurred
by the Indemnitee in connection with any Proceeding or otherwise (such amounts
so expended or incurred being referred to as "Advanced Amounts"). In making any
claim for payment by the Indemnitors of any amount, including any Advanced
Amounts, pursuant to this Agreement, the Indemnitee shall submit to the
Indemnitors a written request for payment (a "Claim") which includes a schedule
setting forth in reasonable detail the dollar amount expended (or incurred or
expected to be expended or incurred). Each item on such schedule shall be
supported by the xxxx, agreement, or other documentation relating thereto, a
copy of which shall be appended to the schedule as an exhibit. The Corporate
Secretaries of the Indemnitors shall, promptly upon receipt of such a request
for indemnification, advise the Boards of Directors in writing that Indemnitee
has requested indemnification.
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(b) Where the Indemnitee is requesting Advanced Amounts, the Indemnitee
must also provide an undertaking to repay such Advanced Amounts if a Final
Determination is made that the Indemnitee is not entitled to indemnification
hereunder. Any advances and undertakings to repay pursuant to this Section 5
shall be unsecured and interest free.
(c) Notwithstanding the foregoing, the obligation of the Indemnitors to
pay Advanced Amounts pursuant to this Section 5 shall be subject to the
condition that, if, when and to the extent that the Indemnitors determine that
Indemnitee would not be permitted to be indemnified under applicable law,
Indemnitors shall be entitled to be reimbursed, within thirty (30) days of such
determination, by Indemnitee (who hereby agrees to reimburse Indemnitors) for
all such amounts theretofore paid; 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 Indemnitors that Indemnitee
would not be permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse Indemnitors for any
Advanced Amounts until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed).
6. Continuation of Indemnity. All agreements and obligations of the
Indemnitors contained herein shall continue during the period the Indemnitee is
an employee or agent of the Corporation (or is serving at the request of an
Indemnitor as an Affiliate Indemnitee) and shall continue thereafter so long as
the Indemnitee shall be subject to any possible Proceeding by reason of the fact
that the Indemnitee was an employee or agent of the Corporation or served as
such or in some other capacity as an Affiliate Indemnitee, whether or not
Indemnitee is acting or serving in any such capacity at the time any liability
or expense is incurred for which indemnification can be provided under this
Agreement. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an employee or agent of the Corporation or any
other enterprise at an Indemnitor's request.
7. Successors: Binding Agreement. This Agreement shall be binding on, and
shall inure to the benefit of and be enforceable by, each of the Indemnitor's
successors and assigns and by the Indemnitee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
divisees and legatees. Each Indemnitor shall require any successor or assignee
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of such Indemnitor
expressly to assume and agree in writing to perform this Agreement in the same
manner and to the same extent that such Indemnitor would be required to perform
if no such succession or assignment had taken place.
8. Notification and Defense of Claim. (a) Promptly after receipt by the
Indemnitee of notice of the commencement of any Proceeding, the Indemnitee
shall, if a claim in respect thereof is to be made against an Indemnitor under
this Agreement, notify such Indemnitor of the commencement thereof, but the
failure to so notify such Indemnitor will not relieve the Indemnitors from any
liability which it may have to the Indemnitee (except to the extent that the
Indemnitors are prejudiced by such failure). With respect to any such
Proceeding:
(i) Each Indemnitor shall be entitled to participate therein at its
own expense;
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(ii) Except with prior written consent of the Indemnitee, the Indemnitors
shall not be entitled to assume the defense of any Proceeding;
(iii) No Indemnitor shall settle any Proceeding in any manner which would
impose any penalty or limitation on the Indemnitee without the Indemnitee's
prior written consent (not to be unreasonably withheld or delayed); and
(iv) The Indemnitee shall not settle any Proceeding without the
Indemnitors' prior written consent (not to be unreasonably withheld or delayed).
(b) Upon written request by Indemnitee for indemnification pursuant to
Section 5 hereof, a determination, if required by applicable law, with respect
to Indemnitee's entitlement thereto shall be made by the following person or
persons empowered to make such determination:
(i) the Board of Directors of such Indemnitor by a majority vote of
a quorum of directors of such Indemnitor who are not and were not parties to the
Proceeding in respect of which indemnification is sought by Indemnitee
("Disinterested Directors"), or
(ii) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, said
Disinterested Directors so direct, by 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 Indemnitors
or Indemnitee in any matter material to either such party (other than with
respect to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder
("Independent Counsel") (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 Indemnitors or Indemnitee in an action to determine
Indemnitee's rights under this Agreement) in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee, or
(iii) if so directed by said Disinterested Directors, by the
stockholders of such Indemnitor; and, if it is determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten (10)
days after such determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or information which is
not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
Independent Counsel, member of the Board of Directors, or stockholder of such
Indemnitor shall act reasonably and in good faith in making a determination
under this Agreement of the Indemnitee's entitlement to indemnification. Any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by such Indemnitor to the extent allowed by
applicable law (irrespective of the determination as to Indemnitee's entitlement
to indemnification) and the Indemnitors hereby indemnify and agree to hold
Indemnitee harmless therefrom.
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(c) If the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 8(b) hereof, the Independent Counsel
shall be selected as provided in this Section 8(c). The Independent Counsel
shall be selected by the Board of Directors [subject to this Section 8(c)], and
the Indemnitor shall give written notice to Indemnitee advising him of the
identity of the Independent Counsel so selected. Indemnitee may, within seven
(7) days after receipt of such written notice of selection, deliver to the
Indemnitor a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of "Independent Counsel," as defined in
this Section 8, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. If, within twenty (20) days after
submission by Indemnitee of a written request for indemnification pursuant to
Section 8(a) hereof, no Independent Counsel shall have been selected and not
objected to, the Indemnitors may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by Indemnitee to the
Indemnitors' selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person as
the court shall designate, and the person with respect to whom all objections
are so resolved or the person so appointed shall act as Independent Counsel
under Section 8(b) hereof. The Indemnitors 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) hereof, and the Indemnitors
shall pay all reasonable fees and expenses incident to the procedures of this
Section 8(c), 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 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).
9. Security. To the extent requested by the Indemnitee and approved by the
Boards of Directors of the Indemnitors, the Indemnitors may at any time and from
time to time provide security to the Indemnitee for the Indemnitors' obligations
hereunder through a line of credit, funded trust or other collateral. Any such
security, once provided to the Indemnitee, may not be revoked or released
without the prior written consent of the Indemnitee.
10. Enforcement. (a) Each Indemnitor has entered into this Agreement and
assumed the obligations imposed on such Indemnitor hereby in order to induce the
Indemnitee to act as an employee and/or agent of the Corporation or as an
Affiliate Indemnitee and acknowledges that the Indemnitee is relying upon this
Agreement in agreeing to serve or continuing in such capacity.
(b) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties
hereto with respect to the subject matter hereof.
(c) All expenses incurred by the Indemnitee in connection with the
preparation and submission of the Indemnitee's request for indemnification
hereunder shall be borne, jointly and
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severally, by the Indemnitors. In the event the Indemnitee has requested payment
of any amount under this Agreement and has not received payment thereof within
thirty (30) days of such request, the Indemnitee may bring any action to enforce
his rights or such collect moneys due, and, if the Indemnitee is successful in
such action, the Indemnitors shall reimburse the Indemnitee for all of the
Indemnitee's fees and expenses in bringing and pursuing such action. If it is
determined that the Indemnitee is entitled to indemnification for part (but not
all) of the indemnification so requested, such fees and expenses shall be
reasonably prorated. The Indemnitee shall be entitled to the advancement of such
amounts to the full extent contemplated by Section 5 hereof in connection with
such Proceeding.
(d) In the event that (i) Advanced Amounts are not timely provided
pursuant to Section 5 of this Agreement, (ii) no determination with respect to
the entitlement to indemnification is received by Indemnitee pursuant to Section
8 of this Agreement within twenty (20) days after receipt by the Indemnitors of
the request for indemnification or (iii) payment of indemnification is not made
within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification pursuant to Section 8 of this Agreement, Indemnitee
shall be entitled to an adjudication in a court of competent jurisdiction of his
entitlement to such indemnification. Alternatively, Indemnitee, at his option,
may seek an award in arbitration to be conducted by a single arbitrator pursuant
to the Commercial Arbitration Rules of the American Arbitration Association.
Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has the
right to commence such proceeding pursuant to this Section 10(d). Indemnitors
shall not oppose Indemnitee's right to seek any such adjudication or award in
arbitration. Indemnitors 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 Indemnitors are bound by all the provisions of this Agreement.
(e) In the event that the Indemnitee is subject to or intervenes in any
Proceeding in which the validity or enforceability of this Agreement is at issue
or seeks an adjudication or award in arbitration to enforce his rights under, or
to recover damages for breach of, this Agreement, the Indemnitee, if he prevails
in whole or in part in such action, will be entitled to recover from the
Indemnitors and will be indemnified by the Indemnitors against any actual
expenses related thereto incurred by Indemnitee.
11. Contribution. If the indemnification provided for herein in respect of
any expense, liability or loss incurred by the Indemnitee in connection with any
Proceeding is finally determined by a court of competent jurisdiction to be
prohibited by applicable law or is otherwise unavailable and may not be paid to
Indemnitee for any reason other than those set forth in paragraphs (i), (ii),
(iii) and (iv) of Section 2(e), then the Indemnitors, in lieu of indemnifying
Indemnitee, shall contribute to the amount paid or payable by Indemnitee as a
result of such expense, liability or loss in such proportion as is appropriate
to reflect (i) the relative benefits received by the Indemnitors on the one hand
and Indemnitee on the other hand from the events, circumstances, conditions,
happenings, actions or transactions from which such Proceeding arose, (ii) the
relative fault of the Indemnitors (including their affiliates) on the one hand
and of Indemnitee on the other hand in connection with the events, circumstances
and happenings which resulted in such expense, liability or loss (such relative
fault to be determined
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by reference to, among other things, the parties relative intent, knowledge,
access to information and opportunity to correct or prevent the events,
circumstances and/or happenings resulting in such expense, liability or loss),
and (iii) any other relevant equitable considerations, it being agreed that it
would not be just and equitable if such contribution were determined by pro rata
or other method of allocation which does not take into account the foregoing
equitable considerations.
12. Severability. If any provision or provisions of this Agreement shall
be held by a court of competent jurisdiction to be invalid, void, illegal or
otherwise unenforceable for any reason whatsoever, (i) the validity, legality
and enforceability of the remaining provisions of this Agreement (including,
without limitation, all portions of any sections or subsections of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not by themselves invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby, and (ii) to the fullest
extent possible, the provisions of any section or subsections of this Agreement
containing any such provisions held to be invalid, illegal or unenforceable
shall be construed so as to give effect to the intent of the parties that the
Indemnitors (or any of them) provide protection to the Indemnitee to the fullest
extent enforceable.
13. Non-Exclusivity; Survival of Rights; Subrogation. (a) The rights of
indemnification as provided by this Agreement shall not be deemed exclusive of
any other rights to which Indemnitee may at any time be entitled under
applicable law, the Charter Documents, any other agreement, a vote of
stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit or
restrict any right of Indemnitee under this Agreement in respect of any action
taken or omitted by such Indemnitee prior to such amendment, alteration or
repeal. To the extent that a change in applicable law, whether by statute or
judicial decision, permits greater indemnification than would be afforded
currently under the Charter Documents and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or remedy.
(b) In the event of payment under this Agreement, the Indemnitors shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including execution of such documents as
are necessary to enable the Indemnitors to bring suit to enforce such rights..
(c) The Indemnitors shall not be liable under this Agreement to make any
payments of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
14. Modifications. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is agreed to in
writing by the Indemnitee and an officer of each of the Indemnitors designated
by the Board of Directors of
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such Indemnitor. No waiver by either party at any time of any breach by the
other party of, or of compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same time or at any prior
or subsequent time.
15. Governing law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Nevada, without giving effect to the principles of conflicts of laws thereof.
16. Notices. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand against a receipt
therefor, received by facsimile, or five (5) days after being mailed by United
States registered mail, return receipt requested, postage prepaid, as follows:
IF TO THE INDEMNITEE:
__________________________________
[Address of Indemnitee]
IF TO PARENT:
Xxxxx Xxxxxx Industries N.V.
Atrium, 8th floor
Strawinskylaan 3077
1077 ZX Amsterdam
The Netherlands
Facsimile No.: 31-6- 2244 6170
WITH A COPY TO:
De Brauw Blackstone Westbroek N.V.
Tripolis 300
Burgerweeshuispad 301
X.X. Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Facsimile No.: 00-00-000-0000
Attn: Xxxxxx van Olffen
AND TO:
Xxxx Xxxxxxxxx, Esq.
Xxxxxx, Xxxx & Cruthcher LLP
Jamboree Center
0 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
10
IF TO CORPORATION:
Xxxxx Xxxxxx Building Products, Inc.
00000 Xx Xxxxxxx, Xxx. 000
Xxxxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: CEO and/or President
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Agreement.
18. Headings; References; Pronouns. The headings of the 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.
References herein to section numbers are to sections of this Agreement. All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as appropriate.
19. Consent to Jurisdiction. The Indemnitors and the Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the country of
the Netherlands and the State of Nevada for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement and agree
that any action instituted under this Agreement shall be brought only in the
country of the Netherlands or the state courts of the State of Nevada.
20. Effectiveness. This Agreement shall be effective as of the day and
year first above written, and shall apply to any Proceedings relating to matters
which occurred prior to, on or after such date.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
XXXXX XXXXXX INDUSTRIES N.V.
By: _______________________________
Name:
Title:
XXXXX XXXXXX BUILDING PRODUCTS INC
By: _______________________________
Name:
Title:
11
INDEMNITEE
By: _______________________________
Name:
12
